Between: RD Petitioner v YY Respondent

• Jurisdiction: Cayman Islands
• Judge: Mr. Justice Richard Williams
• Judgment Date: 02 May 2023
• Docket Number: CAUSE NO: FAM 18 OF 2017
• Court: Grand Court (Cayman Islands)

Between:

RD

Petitioner

and

YY

Respondent

Before:

Hon. Mr. Justice Richard Williams

CAUSE NO: FAM 18 OF 2017

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FAMILY DIVISION

HEADNOTE

Financial provision — ancillary relief — matrimonial or non-matrimonial assets — costs of sale on real estate assets — duration of child maintenance orders — Guidance given by Peel J in WC v HC [2022] EWFC 22.

Appearances:

Ms. Louise Desrosiers from Travers Thorp Alberga for the Petitioner

Mr. James Kennedy from KSG Attorneys for the Respondent

The Application

1 This is the hearing to determine ancillary relief claims made by RD, the 61 year old Petitioner husband and YY, the 51 year old Respondent wife. RD is a Cayman national and YY is a Chinese national.

2 I hope that the parties will not be offended if I hereafter refer to them, for convenience, as the husband and the wife.

The family background and the procedural background

3 Following the death of the husband's former wife in March 2001 1, the parties met online in November 2003 and were married on 18 May 2004 in Guangdong Province, China when they were aged 43 and 33 respectively.

4 The wife states that at that time she was a Company Administration Manager for a company in China, with whom she had started work as secretary thirteen years previously. She stated that her monthly salary was the equivalent of US$2,700. After the marriage, she became a housewife, but also gave some practical assistance to the husband in relation to a few of his business endeavours. She has not entered independent employment since the marriage. At the time of the marriage, the wife had little premarital wealth. I am satisfied that although the husband clearly took on the primary income earning role through his various endeavours, the wife's role as a home-maker freed up his time, thereby enabling him to concentrate on his work. In such circumstances, I find that both parties have equally contributed to the majority of the family wealth amassed during the marriage..

5 The husband, having left banking, became and remains occupied as a land developer and he involves himself in building, construction, and development projects. When his former wife was ill, for one to two years, the husband commendably prioritised his care for her over work and therefore most of his income at that time came from rental

properties. 2 The husband asserts that the bulk of his wealth was accrued during his previous marriage

6 There are two children of the marriage: A aged 17 and B aged 15. The children reside with the wife in the Cayman Islands pursuant to a Consent Residence Order made in her favour on 3 November 2017. 3 Orders were made for defined contact for the children with the husband. The orders provide that the s.10 Children Act Orders will remain in place until the respective child reached 18 or aged 21 if in full-time education, as the Court was satisfied that there were exceptional circumstances as the husband was ordinarily resident in the Cayman Islands and the children were ordinarily resident with the wife in China. However, the Court should not have approved that part of the submitted Consent Order, as s.10 orders cannot extend, even if there are exceptional circumstances, beyond a child's 18 ^th birthday. Despite the orders, unfortunately, the children's relationship with the husband has broken down. Possibly partly due to the ages of the children, the Court is not now asked to make any s.10 orders.

7 The Court, of course, must consider financial provision for both children and this may be up to the age of 21 if the relevant child is in full-time education. At different stages during these proceedings, the wife's wishes as to where the children should live and be educated have varied, with her preference ranging from the Cayman Islands to China, the United States or the United Kingdom. A is in her final year at school and has submitted applications for universities in the USA and the UK. 4 It is likely that B will

wish to take a similar route. The mother has not made it clear where she intends to live after the divorce proceedings have concluded, although she did infer that such a decision may be dependent on where the children are being educated. If the children were to study in the UK or the USA, the wife would need the requisite immigration status to also reside there

8 From July 2004 until 2011, the parties lived together in the Cayman Islands. In 2011, they agreed that the wife and the children should move to China. The wife does not accept that the intention was that she set up her and the children's permanent home in China; instead she states that the move was a temporary one to enable the children to experience life in China for five to six years before returning to the Cayman Islands to further their high school education. However, I note that this is highly inconsistent with what one of her former attorneys, Mr. Holland, wrote in an email to the Court dated 19 June 2019 when he said it was intended to be a permanent move to China and that the only reason why the wife and children had not returned there was due to these proceedings being protracted. 5 In China, the wife and children resided in a property that the parties purchased for US$250,000 in or around 2005/2006 in the wife's name as she was the Chinese national. The wife returned to the Cayman Islands with the children in August 2017, it appears primarily to enable her to properly participate in these proceedings. She says that the husband refused to let her return to the matrimonial home. The parties in effect separated in 2017.

9 On 1 February 2017, the husband filed his Petition for the Dissolution of the Marriage. On 3 February 2017, the husband paid $177,122.34 to the wife. The wife filed her Cross-Petition on 27 March 2017. The husband filed his Answer to the Cross-Petition on 7 April 2017. The first directions relating to these ancillary relief proceedings were made on 22 June 2017. On 18 July 2017, the husband filed his Amended Petition. The husband's Amended Petition was not opposed, and it was proved on 5 September 2017. The parties were therefore married for around thirteen years, so it was a medium length marriage arguably on the cusp of being a long marriage.

10 On 22 June 2017, the Court having been informed that there were no s.10 Children Act issues, gave directions timetabling the matter to a final ancillary relief hearing on a date to be fixed.

11 At the same time that the wife was granted a Residence Order 6, on 3 November 2017 7, it was agreed that the husband would pay for:

• (i) the reasonable accommodation expenses for the wife and children;

• (ii) the children's school and tutoring fees;

• (iii) the children's health insurance; and

• (iv) US$500 per month as a contribution to the children's food expenses. Further comprehensive case management directions were given 8 to a three day final hearing to be fixed on any date after 1 December 2017.

12 On 1 March 2018, the Notice of Hearing setting down the ancillary relief final hearing for 3–4 days commencing on 23 April 2018 was issued by the Listing Officer.

13 On 14 March 2018, upon an application by the wife 9, a contested global Interim Child Maintenance/Maintenance Pending Suit Order was made. 10 The husband was thereunder required to pay US$5,739 to the wife by or on the 14 ^th day of each month. That figure was based on the husband's undertakings:

In relation to disputed “arrears” arising under the November 2017 Order, the husband agreed to:

• (i) to have the wife placed on his health insurance policy or failing that to contribute up to US$243 per month towards a health insurance policy for her; and

• (ii) to have the wife's motor vehicle promptly inspected and to pay for any reasonable repairs to it to ensure that it is safe to drive.

• (i) refund the wife with rent already paid on the rental accommodation and for the deposit for her accommodation (on the basis that the deposit would return to him when refunded);

• (ii) refund reasonable airfares for the wife and children's flights to China in June/July 2018;

• (iii) refund the wife US$856.75 for her payment of a Holiday Inn bill in January 2018; and

• (iv) pay US$500 to the wife to cover any shortfall that may have arisen from the November 2017 Order.

14 In April 2018, it became apparent that the 23 April 2018 final hearing would need to be vacated. The wife initiated the application for that to happen, partly due to issues arising from documentation that she had submitted which had not been translated from Mandarin into English. On 20 April 2018, Carter J (Actg) vacated the ancillary relief hearing. The Learned Judge also gave directions in relation to disclosure 11 and directed that the matter be listed for a four day hearing on the first available date. The Order contained a provision for the husband to file and serve a Supplemental Affidavit providing disclosure of additional financial information with documentary evidence concerning bank accounts, liabilities and about all of the companies. 12 The Learned Judge ordered the wife to pay, by way of set-off from any sum awarded to her in the final ancillary relief, the husband's wasted costs arising from the adjournment on a standard basis to be taxed if not agreed. That Order was not challenged, and the parties should have regard to it when perfecting the Final Ancillary Relief Order emanating from this hearing.

15 On 23 April 2018, the...