In 1996 after a marriage of some 13 years with two children Mrs Dart was awarded a lump sum of about £9m. That was what the Court decided she needed. Mr Dart presumably needed the balance of £391million. He had petitioned for divorce in England; the wife had petitioned in the state of Michigan where she would have received an equitable distribution. Mrs Dart appealed to the Court of Appeal where she lost and was ordered to pay her husband’s costs.
The Court, in dealing with financial claims, looked at all the circumstances of the case as provided for by Section 23 of the Matrimonial Causes Act 1973 and dealt with financial applications by determining what the wife needed, giving her a lump sum for her housing needs and capitalising her maintenance claims.
A new approach
It was the case of White, which went all the way to the House of Lords in 2000, that brought about our change of approach. In that case initially the wife was awarded £980,000 out of some £4.6m of assets. It had been a long marriage, 33 years with three children. The wife appealed. The Court of Appeal increased her lump sum to £1.5m giving her about two fifths of the overall assets. Both she and her husband then appealed to the House of Lords where their appeals were thrown out and the Order made by the Court of Appeal approved. The House of Lords said it was manifestly unfair and wrong to confine a wife to her reasonable financial needs only.
London’s popularity as a place to divorce has grown since then with cases such as Miller and Charman underscoring the Capital’s reputation.
In 2006 Alan Miller was ordered to pay £5m to his wife after a childless marriage of less than three years. He had been a very successful hedge fund manager and the couple had enjoyed an exceptionally high standard of living. The Judge decided that Mrs Miller had a “reasonable expectation” of a future wealthy lifestyle.
The pattern continued. In 2007 John Charman, the insurance tycoon, was ordered to pay £48m to his wife of 28 years. He had argued that he had made a stellar contribution to the family’s fortune by building up his business and that his wife should only receive £20m out of assets of some £131m.
The Court’s concern is to provide for fairness as between a divorcing couple and the starting point for dividing their capital assets is a 50/50 split. For a wife therefore it is essential for her Petition to be heard in England and for the Court to seize jurisdiction. The Court has jurisdiction if either of the parties are domiciled or habitually resident here.
In March 2010 the Supreme Court ruled in the case of Mr and Mrs Agbaje. The couple had been married for 38 years, both were Nigerian by birth, had met in England in the 1960s and had both subsequently acquired UK citizenship. Their five children were born in England and all save one were educated here.
The children lived here with their nanny whilst, for the majority of their married life, the husband and wife lived in Nigeria. The husband instituted divorce proceedings in Nigeria where the wife was awarded a life interest in a property in Lagos and a lump sum of about £21,000.
The wife countered bringing proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 which gives an English Court power to grant financial relief after a marriage has been dissolved or annulled in a foreign country and where little or no adequate financial provision has been made.
The High Court said Mrs Agbaje should receive a lump sum equivalent to 65% of the sale proceeds of the English property on condition that she relinquished her life interest in the Lagos property. The award represented 39% of the total assets. That Order was upheld the Supreme Court which stressed that there must be a strong connection with England and that such application should not be seen as a “top up” to a foreign award. It was clear that the judgment in Lagos would have resulted in the wife suffering real hardship.
Changing sentiment
However, judges are baulking against “forum shopping” in divorce cases. In the recent case of Ilya and Elena Golubovich the parties had married in Italy and lived in London for a time. The husband petitioned for divorce in Moscow, the wife petitioned in London. The Court of Appeal held that the convenient forum for the parties divorce was Moscow and upheld the divorce that had been granted there. Lord Justice Thorpe was highly critical of the wife’s attempt to have the divorce heard in England.
More recently an American wife was unsuccessful in trying to bring her financial application here as the parties’ links with England were described as “tenuous”. The judge held that America would be the most convenient forum for them.
What will happen next?
The courts will resist any thinly-veiled attempts to play the system. However, with the Supreme Court recently handing down a landmark ruling in the case of Radmacher and Granatino, which leant weight to the status of a prenuptial agreement (signed in Germany) which protected the pre-marriage wealth of both parties, London remains an attractive place to divorce. Women know that they will get a fairer hearing than in many other jurisdictions; men, often the wealthier and stronger partner, who have a prenuptial agreement in place, have a better expectation that certain wealth will be protected.
