AB v SB
| Jurisdiction | Cayman Islands |
| Judge | Gunn J |
| Judgment Date | 22 May 2018 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. FAM 116 OF 2016 |
| Date | 22 May 2018 |
Gunn J (Actg)
CAUSE NO. FAM 116 OF 2016
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN IN GEORGE TOWN
Financial Provision — Ancillary relief—conduct — bigamy Financial Provision — Ancillary relief—special contribution Financial Provision — ancillaiy relief—spousal maintenance — clean break Financial Provision — variation of maintenance pending suit
The Petitioner in person/ Mrs Brooks-Hurst QC amicus 1
Miss Stacy Thompson for the Respondent
The court is dealing with —
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(i) The Respondent's summons for enforcement of the order made March 2017 for maintenance pending suit (“MPS”];
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(ii) The Petitioners application for a downward variation of the MPS; and
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(iii) the remaining issues of ancillary relief within divorce proceedings.
The parties, to whom for convenience (and without intending any discourtesy or disrespect] I shall refer to respectively as “the husband” and “the wife”, were married on 15 th September 1985. Six children were born of this marriage; the youngest, twin daughters age 15, are the only minor children and reside with their mother. The parties resided in the FMH until December 2011, at which time the husband left the matrimonial home and the parties ceased living as husband and wife.
On 9 th March 2017, by a consent order, the wife withdrew her answer to the husband's petition, and both the husband's petition and the wife's cross-petition were proved. The matters pleaded are therefore deemed facts (see Mercer v Harmans [2003] CILR 510), namely that —
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(i) The husband and the wife quarrelled frequently. On at least one occasion the police were called;
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(ii) The wife stopped working 25 years ago and has refused to return to work since, despite being physically able to do so;
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(iii) The husband has repaid funds unlawfully taken by the wife from her employers.
On that same date Williams J ordered the husband to pay split child maintenance and spousal maintenance of CI$1,937 per month ($968.50 on the 1 st and 15 th of every month commencing 15 th March 2017), to maintain the mortgage payments for the FMH and pay the utilities bills up to a total of CI$310.00 per month.
On 10 th May 2017 the husband filed a summons seeking a downward variation of the MPS.
On 5 th June 2017 the wife filed a summons for arrears and Attachment of Earning's Order
On 25 th July 2017 Carter J (Actg.) adjudged the arrears owing to be CI$6,565.50. The husband was ordered to pay the arrears in instalments of $1,000 per month until the arrears are liquidated. Carter J (Actg.) also affirmed the split child/spousal maintenance order made by Williams J. The husband's summons for variation was adjourned to allow him to produce details of his retirement options.
The matter was set down for hearing for final ancillary relief on 29 th November 2018. Due to the late service of the notice of the hearing on the husband, the hearing was adjourned. The matter was set down for hearing on 23 rd and 24 th January 2018. The husband's application for downward variation of the MPS and arrears as ordered by Carter J (Actg.) was adjourned to 14 th December 2017.
On 14 th December 2017 the matter returned to court for the hearing of the husband's application for downwards variation of MPS and the wife's application for arrears and AEO, which was filed in the interim. I heard the applications and found that the wife had failed to prove that the husband was employed for the purposes of an AEO. I made no finding on the matter of arrears, adjourning that matter together with the husband's application to vary the MPS and arrears to be heard at the final ancillary relief hearing. The adjournment was ordered so that the husband could obtain further evidence from his former employers and pension plan provider as well as up-to-date bank statements. It was also ordered that the husband was prohibited from selling any motor vehicles until further order of the court.
The final hearing commenced on 23 rd January 2018 2, but was adjourned on the second day for the wife to obtain valuations on the properties (having applied for legal aid for the purpose that same day). The matter returned to court on 16 th February 2018, at which time I was provide evidence of the valuations obtained by both parties. I was advised that the husband was not calling any evidence, and relies solely on his affidavits previously filed.
Counsel provided final submissions in writing on 2 nd March 2018.
The husband is 62 years old and the wife 57 years old. Both are Caymanian.
The law pertaining to the making of periodical payment orders and to the division of matrimonial assets is governed by section 19 of the Matrimonial Causes Law (2005 Revision) (“the Law”), which provides:
“in dealing with all ancillary matters arising under this law the court should have regard first of all to the best interests of any children of the marriage and thereafter to the responsibilities and financial and other resources, actual and potential earning power and deserts of the parties.”
Section 19 must be read in conjunction with section 21 of the Law. The relevant parts which apply to my consideration are as follows;
“at the time of pronouncing a decree under this law, the court shall, as appropriate, make order for;
(a) The custody, care and control of the children of the marriage;
(b) The distribution of matrimonial property, including the matrimonial home;
(c) …
(d)…
(e) Making financial provisions from the property of either spouse for the children of the marriage and to the other spouse.
(f) Providing for periodical payments to be made by either spouse for the benefit of the children of the marriage and the other spouse: and
(g) costs.”
Section 22(1) of the Law provides for the making of child maintenance orders until the child reaches the age of 21 if the child is receiving education.
Sections 19 and 21 of the Law give the court a wide discretion when it comes to financial provision and any awards made to the parties. In deciding whether to exercise its power under section 21, and in which manner, the court shall consider what is fair in all the circumstances of the case. In addition to those matters set out in section 19 of the Law, the courts in the Cayman Islands have also been guided by the relevant factors raised in section 25 (2) of the English Act 3 which include:
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(i) the income earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future;
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(ii) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
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(iii) the standard of living enjoyed by the family before the breakdown of the marriage;
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(iv) the age of each party to the marriage and the duration of the marriage;
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(v) any physical or mental disability of either of the parties to the marriage;
(vi) the deserts of the parties, including contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the accumulation of matrimonial assets as well as non-matrimonial property) and any contribution made by looking after the home caring family;
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(vii) the value to either of the parties to the marriage of any benefit (for example a pension) which, by reason of the dissolution of the marriage, the party will lose the chance of acquiring; and
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(viii) the conduct of each of the parties if that conduct is such that it would in the opinion of the court be inequitable to disregard.
The Court of Appeal in McTaggart v McTaggart [ 2011 2 CILR 366] set out the approach to be taken to the case law emanating from England and Wales:
“40. We were referred by the parties, both in the skeleton arguments lodged on their behalf and in oral submissions made in the course of the hearing, to a plethora of judicial decisions in England and Wales and to a few decisions in this jurisdiction. Observations made by experienced judges are, of course, of assistance to an understanding of the application of section 19 factors; but it must be kept in mind that most cases in this field are decided on their own facts and that there is a risk that extensive citation may confuse rather than illustrate. It is not necessary, I think, to look further than the decision of the House of Lords in Miller — and in particular the speeches of Lord Nichols and Baroness Hale — in order to identify the principles. Leaving aside in this context, the best interests of the children, which (as I said) are paramount, there are three strands: need, compensation and sharing [2006] 2 AC 618 at paragraphs [10]–[16] per Lord Nichols and paragraphs [138]–[143] per Baroness Hale. The ultimate objective, as Baroness Hale explained at paragraph [144], is to give each party an equal start on the road to independent living. She said this:
'[144] thus far, in common with my neighbour and learned friend Lord Nicholls of Birkenhead, I have identified three principles which might guide the court in making an award: need, generously interpreted, compensation and sharing. I agree that there cannot be a hard and fast rule, but whether one starts with equal sharing and departs when need or compensation supplied a...
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