Between: AA Petitioner v BB Respondent
| Jurisdiction | Cayman Islands |
| Judge | Mr. Justice Alistair Walters |
| Judgment Date | 17 April 2024 |
| Docket Number | FAM0118 OF 2022 |
| Court | Grand Court (Cayman Islands) |
Hon Mr. Justice Alistair Walters, Actg.
FAM0118 OF 2022
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FAMILY DIVISION
Mr. David McGrath of McGrath Tonner for the Petitioner
Mr. David Holland of Cayman Family Law for the Respondent
Present: The Petitioner and the Respondent
This is my decision following the Final Ancillaries Hearing in this matter on 16 – 19 January 2024. I have considered the written affidavit evidence of the parties (the Petitioner or “ W” and the Respondent or “H”) and of the Respondent's father, Mr. BR (“Mr. R”), as well as the various disclosure provided by the parties. I heard oral evidence from the parties, Ms. Alexandra Farrington BSc (Hons) MRCS, the single joint valuation expert ( “Ms. Farrington” or “SJE”), and from Mr. R. I have also considered the written submissions prepared on behalf of the parties.
Issues relating to the care of the children of the marriage and parenting were resolved by way of a co-parenting agreement after mediation in 2022 when a shared residence order was agreed on a 50:50 basis.
W is aged 41. She was born in Venezuela and moved to the United States of America in 1999 to pursue her university degree. She is a US citizen.
H is aged 40. He was born in 1983. He was a US citizen but renounced his US citizenship in 2012 after the R family moved offshore to the Cayman Islands in 2011. He holds Venezuelan and Slovakian nationalities.
The parties met in Miami. At the time, W was working with the Volkswagen Group in a marketing role, and H was studying at the University of Miami. W has an undergraduate degree with a minor in Marketing and an Associate's Degree in Baking and Pastry. H has an Undergraduate Degree and a Master's Degree in Finance. They started dating in 2006 and became engaged in May 2008 on a yacht in the South of France. W was 26 years of age, and H was 25.
Both parties come from wealthy families. They executed a pre-nuptial agreement ( “PNA”) on 20th October 2008. The PNA is expressed to be subject to the laws of the State of Florida. It has not been suggested that the PNA is invalid, and there is no evidence of Florida law. Neither party has made any substantive effort to suggest that the parties were unaware of its contents. Indeed, both parties were advised by independent counsel at the time and disclosure of respective assets was given. The most that has been said is that W was reluctant to sign the agreement, but H insisted that it be entered into.
By the time that they were engaged in 2008, H was already working for the family business in the US, BNo, LLC. After their engagement, W also went to work for BN LLC.
The parties were married on 23 January 2009 in Miami, Florida.
The parties initially lived in rented accommodation in Miami. In 2009, a home was purchased at Eastern Shores, Miami, Florida, and the parties made that their matrimonial home (the “Miami Home”). Their first child was born in 2011 in Miami.
In 2011, the parties (along with H's parents and siblings) moved to the Cayman Islands for reasons Mr. B described in his oral evidence as relating to increased banking regulation in the US.
H and W moved into rented accommodation at Sea View, South Sound. The Miami Home was rented out and the rental income was used to fund the parties' day-to-day expenses.
In 2013, H and W moved to Panama, largely due, it seems, to issues arising from the relationship between H and his father, Mr. R. The same year the Miami Home was sold. H, W and W's mother purchased an investment apartment (Santa Maria) in Panama via a holding company ( CB3 S.A.) for USD740,000. The purchase was financed with a loan from W's mother and funds provided by H. The parties' second child was born in 2015 in Panama.
In August 2018, the parties and their two children moved back to the Cayman Islands. The apartment in Panama was sold. H was repaid what he had provided for the purchase of the apartment. The balance of the sale proceeds remains to be distributed.
In July/August 2020, the former matrimonial home ( “FMH”) at Banana Quay, Canal Point, was purchased, and the family moved into the property.
The parties separated in late January/early February 2022. W filed a divorce petition on 31 March 2022. H has remained in the FMH, and W currently resides in rented accommodation.
H holds a work permit with B International, a Cayman Islands company of which he is the sole owner. W holds a work permit with a local real estate company and has recently moved from an administration to a sales role.
The PNA is entitled “Antenuptial Agreement” and, on the Respondent's case, is a key component in this case. Paragraph 1 sets out some recitals as follows:
“A. Each of the Husband and Wife … may receive property from third parties as gifts, devises, inheritances and other transfers as inter vivos and testamentary dispositions, which property is also referred to in this Agreement collectively as “protected property” as defined in paragraph 19 below.
B. Each of the parties intends to provide in this Agreement for all of their protected property (whether acquired before after the date of this Agreement).
…
D. Nothing contained in this Agreement is intended to address any property other than the protected property of the parties.”
The PNA continues to provide as follows:
“3 Control of Protected Property. Except as may otherwise be provided in this Agreement, each party retains the sole and exclusive rights of ownership, management, and control of his or her protected property now owned or acquired after the date of this Agreement by him or her, regardless of the source, including all increases or additions thereto and all active and passive appreciation or enhancement and increases in value, irrespective of whenever and however acquired.
A. Except as may otherwise be specifically and expressly provided in this Agreement, any and all protected property now owned or acquired after the date of this Agreement by a party shall remain, or be his or her property separate and apart from the property of the other party throughout the marriage, and after the marriage. In the event, the marriage is dissolved, and the other party shall not have or acquire any interest in such protected property at any time.
B. Each party may freely encumber, sell, give, transfer (in inter vivos or testamentary fashion) or otherwise dispose of his or her protected property (including to the other party) without the consent of the other party and as if the marriage had not taken place, and the other party shall not claim or acquire any interest in such protected property, except as may otherwise be specifically and expressly provided in this Agreement.
4. Joint Commingled Property. Notwithstanding any other provision of this Agreement, if the parties acquire property jointly (i.e., title is held in the names jointly), or if the parties make any contribution to property held in their names jointly, during the marriage, wholly or partially with protected property of either or both of them, or the proceeds of sale of protected property of either or both of them, or with income from protected property of either or both of them, the property acquired to which any such contribution is made, shall lose its character as protected property, shall (except as may otherwise be provided in paragraph 8 below). At that time and thereafter no longer be subject to the terms of this Agreement, and shall be held by them as provided in the instrument conveying or evidence in the title to the property or as provided in any written agreement at any time entered into and signed by them.
…
6. Homestead. Each party releases any claim, demand, right or interest that he or she may otherwise acquire because of the marriage in any real property, which is or may be protected property of the other party pursuant to the homestead property provisions of the Florida Constitution or any Florida Statute concerning the descent of the property as homestead.
…
8. Marriage Dissolution. This Agreement shall be construed as a settlement agreement as to the parties' protected property in the event of the dissolution of marriage of the parties and shall not be subject to modification by the final judgement or after any such judgement.
A. Each party releases, waves, relinquishes and discharges all rights, claims or demands at either of them may otherwise acquire in the protected property of the other because of the marriage against the other four support, maintenance, temporary rehabilitative, lump-sum or permanent alimony or separate maintenance, or support or maintenance unconnected with dissolution of marriage or divorce, or support or maintenance connected with dissolution of marriage or divorce, division and assignment of property, any rights to marital property, any rights to non-marital property of the other,…
B. Upon or in connection with any such dissolution of marriage, neither party shall request, seek or receive or have any right to request, seek or receive from the other party's protected property support, maintenance, temporary, rehabilitative, lump-sum or permanent alimony or separate maintenance, or support or maintenance unconnected with dissolution of marriage or divorce, or support or maintenance connected with dissolution of marriage or divorce…
19. Protected Property. The term “protected property” of a party, as used in and throughout this Agreement, shall mean only:
A. All property and interests in property acquired by such party at any time from any third party, by gift, inheritance, bequest, devise or descent, by distribution to, through, by or from a trust, foundation, or any other domestic or foreign entity created by any third party, for such party's benefit, or by the...
To continue reading
Request your trial