Between: AB Petitioner v CD Respondent
| Jurisdiction | Cayman Islands |
| Judge | Justice Cheryll Richards |
| Judgment Date | 03 January 2023 |
| Docket Number | CAUSE NO: FAM 287 OF 2018 |
| Court | Grand Court (Cayman Islands) |
The Hon. Justice Cheryll Richards K.C.
CAUSE NO: FAM 287 OF 2018
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FAMILY DIVISION
Family Law – Section 19 and 23 of the Matrimonial Causes Act (2005 Revision), Applicable Principles on Variation of Ancillary Order; Protection Order – Section 5 of the Protection from Domestic Violence Act 2010.
Mr. David Holland for the Petitioner
Mrs. Yvonne Mullen for the Respondent
There are three summonses before the Court. By Summons dated 30 th August 2021, the Respondent (“the wife”) seeks an order for the payment of arrears of maintenance. The arrears claimed are US $16,000.00 ($3,200.00 per month for five months) and are said to be due and owing pursuant to the Final Ancillary Consent Order dated 20 th August 2019, (“the FACO”). By Summons dated 2 nd September 2021, the Petitioner (“the husband”) seeks an order for the variation of paragraphs 2, 3, 4 and 13 of the FACO which provide for ongoing child maintenance and spousal maintenance to August 2022. This is sought on a backdated basis to the date when the wife commenced employment in June 2021. By Summons dated 28 th April 2022, the husband also seeks the restoration of a Protection Order made on the 5 th May 2021 under s.5 of the Protection from Domestic Violence Act 2010. In the course of this judgment, I shall refer to the parties as wife and husband although their marriage was dissolved in 2019.
The parties were married in July 2006. After twelve years of marriage, they separated in November 2018. The husband is now 42 years of age, and the wife is 41 years of age. There are two children of the marriage, E.F. born November 2012, 10 years old and G.H. born June 2015, 7 years old. At the time of the marriage and through to shortly before the birth of their first child, both parties were employed. Thereafter the wife stayed home for about ten years to prepare for the birth and to look after the children. She was self-employed for part of this time and at some point, established a company and started a consultancy business which operated out of the former matrimonial home, (“the FMH”).
Both parties are from wealthy family backgrounds. They obtained educational degrees at the university level and have professional qualifications. The husbands' grandfather established a trust for his descendants (“the Trust”). The husband and the two children are beneficiaries. It is an issue between the parties whether the husband has disclosed all that is received by him by virtue of this family trust. A second issue is whether there is a trust established by the wife's family from which she benefits or will benefit in the future. The wife's family denies establishing such a trust. The husband contends that the wife has and continues to have access to undisclosed funds and that in light of her income, she does not require financial assistance by way of maintenance payments. The wife contends that she is solely dependent on income from her employment when she is employed and on maintenance payments, and that any variation of maintenance orders should be proportionate to their income levels.
The FACO contained a number of recitals. These include a recognition of shared responsibility for the two children of the marriage and the acknowledgement and confirmation that the wife would follow the recommendations of a Court ordered social welfare report. The parties also agreed to the continuation of an earlier protection order in favour of the husband which had been made on the 14 th June 2019. The agreement was that this would continue for a period of twelve months after the date of the filing of the FACO. Both parties acknowledged and agreed that they each had no claims against the trusts or trust funds established by the other's family.
At the time of the making of the FACO the wife was unemployed. As to the future employment of the wife, two of the recitals are as follows:-
“AND UPON it being acknowledged that the Respondent is a qualified [professional] who is actively seeking employment at the time of the filing of this order and who is planning to re-launch her own [professional business];
AND UPON the Respondent undertaking to advise the Petitioner of any changes in her employment circumstances and the terms contained at paragraphs 2, 3, 4, 13 and 14 of the Order shall be varied proportionally in the event of any such changes.”
Paragraph 1 of the FACO provided for a shared residence order in respect of the children and the terms by which residence is shared. The children reside with each parent on an alternating weekly basis. Each party is to maintain the children and meet their general expenses when the children are in their care.
By the FACO, the matrimonial property was divided such that the wife received the FMH in her sole name. At the time this was valued at CI $716,000.00. Her receipt was free and clear of the existing mortgage of CI $220,000.00, which was to be extinguished by the husband. The husband received a piece of raw land valued at CI $845,000.00. The husband therefore received about $90,000.00 less in terms of shared real property. Following transfer of the FMH the wife has sole responsibility for meeting the liabilities of the property. Each party retained their respective pension entitlements.
Paragraph 2 of the FACO provided that the husband is to pay US$3,600.00 per month ($1,800.00 per child) in respect of child maintenance. By paragraph 3 the husband is responsible for the costs of the children's school tuition and fees and the costs of any pre-agreed extracurricular activities and holiday camps. By paragraph 4 the husband shall ensure that the children continue to have health insurance and is to cover any uninsured costs while they are in his care and costs which are in excess of US $350.00 while they are in the care of the wife.
By paragraph 10 of the FACO, the husband was solely responsible for paying off their credit card debt. Paragraph 13 provided that the husband is to pay spousal maintenance of US$3,200.00 per month for up to three years from the date of the Order through to August 2022.
Paragraph 6 provided that in the event of future disagreements in relation to general issues set out in the Order, the parties agree to attempt to mediate before making any applications to the Court.
Section 23 of the Matrimonial Cause Act (2005 Revision), sets out the Court's power to vary the terms of an ancillary order as follows:
“ Either spouse or the personal representatives of either spouse may make application for variation of any order made under section 21 and, the Court, after hearing the parties, may make such variation.”
Section 19 of the said Act provides that:
“ In dealing with all ancillary matters arising under this Law, the Court shall have regard first of all to the best interests of any children of a marriage and thereafter to the responsibilities, needs, financial and other resources, actual and potential earning power and the deserts of the parties.”
In the case of VB v. JP 1, the English High Court identified a number of propositions with respect to variation of maintenance arising from the leading case of Miller v. Miller; McFarlane v. McFarlane, 2. The third proposition identified is in part that following the end of a partnership where the funds are insufficient for compensation to be achieved by way of division of assets and an award of periodic payments is made, then as an element of fairness the matter of compensation in respect of relationship-generated disadvantage requires consideration. To this end, a generous assessment of the wife's needs is required which is not restricted to purely budgetary considerations.
The Court stated:
“Fourth, in cases other than big money cases, where a continuing award of periodic payments is necessary, the wife has plainly sacrificed her own earning capacity, compensation will rarely be amenable to consideration as a separate element in the sense of a premium susceptible of calculation with any precision. Where it is necessary to provide ongoing periodical payments for the wife after the division of capital assets insufficient to cover her future maintenance needs, any element of compensation is best dealt with by a generous assessment of her continuing needs unrestricted by purely budgetary considerations, in the light of the contribution of the wife to the marriage and the broad effect of the sacrifice of her own earning capacity upon her ability to provide for her own needs following the end of the matrimonial partnership. These considerations are of course inherent in s.25(a)(b)(d)(f) of the 1973 Act.” 3
In the case of VB v. JP, the Court considered the application of a wife under s.31 (7) of the (United Kingdom) Matrimonial Causes Act 1973. This was for an increase in the amount of periodical payments payable under an earlier consent order. Six years had passed. The application was made on the basis that the sums which were being paid in respect of spousal and child maintenance were inadequate based upon her needs and upon the principle of compensation as detailed by the House of Lords in the case of Miller v. Miller, McFarlane v. McFarlane 4. The applicant claimed an entitlement to a premium over budget, over and above need, for loss of her earning capacity (relationship generated disadvantage).
The Court reviewed whether consideration of the issue of compensation is limited to the approach on the original application or also falls to be considered on an application for variation. The argument that this is excluded on the latter application was rejected. The Court stated:
“I do not accept those submissions. Whether or not they were made to Baron J in...
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