Between: J.S. Petitioner v K.R Respondent
| Jurisdiction | Cayman Islands |
| Judge | Justice Alistair Walters |
| Judgment Date | 31 March 2023 |
| Docket Number | CAUSE No. FAM 257 of 2021 |
| Court | Grand Court (Cayman Islands) |
Hon Justice Alistair Walters, Actg.
CAUSE No. FAM 257 of 2021
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FAMILY DIVISION
Final ancillaries — division of matrimonial assets — whether clean break achievable.
Mr Nicholas Cusworth KC and Ms Kate McClymont of Nelsons for the Petitioner/Husband
Mr Michael Horton KC and Ms Louise Desrosiers of Travers Thorpe Alberga for the Respondent/Wife
1. This is the financial ancillaries hearing in connection with the divorce proceedings commenced by the Petitioner/husband on 21 October 2021. There are two minor children of the marriage, S and A. For the purposes of this judgment there are no issues of substance that arise in relation to the children. The questions of residence, contact and maintenance have been agreed as has the repayment to one of the children of monies which had been given to them by their paternal grandfather but which ended up being mixed with matrimonial funds and spent.
2. The principal issues remaining for determination are:
-
2.1 the extent and value of the matrimonial assets;
-
2.2 whether the Respondent/wife's needs (once determined) can be met from the equal sharing of matrimonial assets; and,
-
2.3 if not, can they be met with an enhanced share of the matrimonial assets and/or continued spousal maintenance for a period of time.
3. For reasons that I discuss below I will say at the outset that I am of the view that this is an unusual case and does not easily fit into what might be regarded as a more conventional approach to final ancillaries proceedings.
4. The parties had sworn various affidavits in connection with the proceedings and both gave oral evidence at the hearing. The affidavits stood as the parties' evidence in chief and they were cross examined at some length about their contents.
5. The parties met at a wedding in 2001. At the time, the Respondent was a marketing manager in Montreal (the Respondent is Canadian). In 2002 the Respondent moved to Cyprus (the Petitioner has joint British and Cypriot citizenship) to live with the Petitioner and started a position there as a marketing manager. In 2003 the parties moved to Montreal where the Respondent worked again as a marketing manager. At that time, the Petitioner started a position as a consultant for a company called P9G in London. The parties married in Montreal on 19 March 2004 and the Respondent moved to London in 2005 to join the Petitioner where she started another position as a marketing manager.
6. In 2007 the Petitioner suffered kidney failure and received a transplant from his sister. In 2008 the Respondent started her own company, Red/Ribbon marketing. In April 2009 the Petitioner started work at Deutsche Bank. The parties' first child (S) was born in 2010. The Respondent ceased full time employment in March 2012 and became pregnant with their second child in April 2012.
7. In December 2012, the Petitioner was made redundant from Deutsche Bank and was unemployed until February 2014. In January 2013 the parties' second child (A) was born. In December 2013 the Petitioner was offered a job with UBS. In February 2014 the parties moved to New York and the Petitioner started work with UBS Global Asset Management in New York. Around December 2015 that division of UBS was acquired by MUFG and the Petitioner started as Global Head of Sales and Marketing for MUFG.
8. In July 2016 the family moved to Montreal and purchased a home there although the Petitioner continued to be based in New York for work. The same year the Petitioner suffered a second kidney failure. The Respondent was a transplant match and donated a kidney to him resulting in some subsequent corrective surgery for her.
9. In December 2018 the parties purchased an apartment in New York (the “New York Apartment”) which was registered in the sole name of the Petitioner. In January 2019, the Petitioner was appointed by MUFG as Deputy CEO of Investor Services Canada. In August 2020 the Petitioner started work as CEO of MUFG Alternative Fund Services (Cayman) Limited (“MUFG Cayman”) and the parties moved to the Cayman Islands the same month. In October 2020 they purchased a 3 bedroom apartment at the Kimpton Seafire (“Unit 501”) which became the matrimonial home. Again, this was registered in the Petitioner's sole name. In January 2021 the parties sold the home in Montreal and purchased an additional one bedroom unit at the Kimpton Seafire (“Unit 403”) which was registered in joint names. The parties separated in June/July 2021 with the Respondent initially living in Unit 403 but subsequently moving to rented accommodation.
10. The Respondent has recently been diagnosed with stage 1 breast cancer which raises a question about continued health insurance.
11. There is little dispute over the background facts. The Petitioner agreed that during the period that the parties were both working, the Respondent earned a higher salary than him. When the Respondent stopped work to care for the parties' children, she was earning approximately GBP65,000. It is also not disputed that during the parties' marriage the Respondent has been a stay-at-home mother and housewife and has not worked full time since 2012. The Respondent is very much of the view that she has made sacrifices for the benefit of her marriage and family and that, without those sacrifices and, in particular, the kidney that she donated to the Petitioner, he could not have been as successful as he has been.
12. The Petitioner's income and remuneration has varied over recent years ranging from approximately US$450,000 per annum in 2018 to his current base salary of US$750,000 per annum. In 2020 the Petitioner received bonuses of US$1,760,199 (including a bonus for 2020, deferred bonuses for 2018 and 2019 and long term incentive payments (“LTIs”). Elements of the LTIs already awarded will be paid in 2023, 2024 and 2025.
13. The Petitioner also receives from MUFG Cayman a rental allowance for accommodation in the US. This is now US$6,000 per month and is used by the Petitioner to defray the expenses of the New York Apartment where he stays when visiting New York on business. In addition, the Petitioner receives from MUFG Cayman personal travel benefits (US$20,000 per annum), as well as health insurance coverage and pension contributions. The Petitioner is able to access the latter to meet the cost of the children's school fees.
14. The Petitioner also receives an annual payment from Mitsubishi UFJ Trust and Banking (“MUTB”) as “chief executive officer” of MUFG Investor Services. This was an issue covered in some detail in cross-examination and in relation to which it seems that there had been no or very limited prior disclosure. According to the Petitioner the role of chief executive officer of MUFG Investor Services is honorary, rarely given to non-Japanese employees but awarded to him in recognition of the success of the Cayman Islands subsidiary. The role brings with it an annual payment of approximately US$75,000 from MUTB. In addition, the Petitioner holds a number of external directorships one of which pays him Euro 12,500 per annum and another US$10,000 per annum.
15. Overall, the Petitioner's recurring annual income is approximately US$961,000.
16. One question that has to be addressed is the standard of living in the marriage and what benchmark should be used when considering the needs of the parties. This is complicated by the fact that the parties moved to the Cayman Islands during the Covid-19 pandemic and have had their regular lives and expenditure interrupted as a result as well as facing a change in their cost of living. Their means also changed substantially after the move to the Cayman Islands.
17. The immigration status of the family is of significance to these proceedings. The Petitioner was initially granted a work permit by the Cayman Islands Immigration Department on 13 November 2020 for the period 16 October 2020 to 16 October 2022. In July 2021 the Petitioner's application for a Certificate of Permanent Residence for Persons of Independent Means2 (“PR Certificate”) was approved with a right to work. The certificate included his children (who are currently 12 and 9 years old) and gives them a right to reside in the Cayman Islands as dependants of the Petitioner until they reach the age of 18. Upon reaching the age of 18 the Petitioner must then apply for a variation for his respective children to continue as dependants. If granted, the variation will allow the children to continue to reside in the Cayman Islands until reaching the age of 24 or when they have completed tertiary education, whichever happens earlier. The Respondent was also included as a dependant without any time restrictions.
18. Following an application by the Petitioner, on 25 October 2021, the Respondent was removed from the PR Certificate as a dependant. The Respondent remains in the Cayman Islands as a visitor requiring her to regularly seek an extension of her permission to remain. At the date of the hearing the Petitioner was 49 years old and the Respondent 50. During the course of cross examination the Petitioner agreed that he is resident in the Cayman Islands for tax reasons and that he will remain here for the foreseeable future as will the parties' children and as should the Respondent.
19. The PR Certificate is one a number of different categories...
To continue reading
Request your trial