E(C) v E(B)

• Jurisdiction: Cayman Islands
• Judge: (Williams, J.)
• Judgment Date: 07 March 2016
• Court: Grand Court (Cayman Islands)
• Date: 07 March 2016

Grand Court, Family Division

(Williams, J.)

E(C)

and

E(B)

E. Gomez for the petitioner;

D. Murray for the respondent.

Cases cited:

(1) Buckland v. Buckland (orse. Camilleri), [1968] P. 296; [1967] 2 W.L.R. 1506; [1967] 2 All E.R. 300, not followed.

(2) D v. D (Nullity: Statutory Bar), [1979] Fam. 70; [1979] 3 W.L.R. 185; [1979] 3 All E.R. 337; (1978), 9 Fam. Law 182, dictum of Dunn J. applied.

(3) H v. H, [1954] P. 258; [1953] 3 W.L.R. 849; [1953] 2 All E.R. 1229, dicta of Karminski J. considered.

(4) Hirani v. HiraniFLR(1983), 4 FLR 232, applied.

(5) NS v. MI, [2007] 1 FLR 444; [2007] 2 F.C.R. 748; [2006] EWHC 1646 (Fam), considered.

(6) Occidental Worldwide Inv. Corp. v. Skibs A/S Avanti (‘The Siboen and The Sibotre’), [1976] 1 Lloyd”s Rep. 293, dictum of Kerr J. referred to.

(7) P v. R (Forced Marriage: Annulment: Procedure), [2003] 1 FLR 661; [2003] Fam. Law 162, referred to.

(8) Pao On v. Lau Yiu Long, [1980] A.C. 614; [1979] 3 W.L.R. 435; [1979] 3 All E.R. 65, dictum of Lord Scarman referred to.

(9) Scott (falsely called Sebright) v. SebrightELR(1886), 12 P.D. 21, followed.

(10) Sheldon v. Sheldon, English Fam. Div., January 1st, 1964, unreported, dictum of Karminski J. considered.

(11) Silver (orse. Kraft) v. Silver, [1955] 1 W.L.R. 728; [1955] 2 All E.R. 614, considered.

(12) Singh v. Kaur, English C.A., January 1st, 1982, Transcript No. 1981 WL 687400, unreported, not followed.

(13) Singh v. Singh, [1971] P. 226; [1971] 2 W.L.R. 963; [1971] 2 All E.R. 828, not followed.

(14) Szechter (orse.) v. Szechter, [1971] P. 286; [1971] 2 W.L.R. 170; [1970] 3 All E.R. 905, not followed.

(15) Vervaeke (formerly Messina) v. Smith, [1983] 1 A.C. 145; [1982] 2 W.L.R. 855; [1982] 2 All E.R. 144, dicta of Lord Hailsham of St. Marylebone L.C. applied.

Legislation construed:

Matrimonial Causes Law (2005 Revision), s.8(1): The relevant terms of this sub-section are set out at para. 26.

s.8(3): The relevant terms of this sub-section are set out at para. 15.

Family Law—nullity—duress—marriage induced by duress void rather than voidable—no valid marriage deemed to have come into existence

Family Law—nullity—duress—petitioner to establish lack of true consent to marriage in that will overborne by threat or pressure sufficient to vitiate consent—no need to demonstrate threat to ‘life, limb or liberty’ or that pressure more than reasonable person could bear

Family Law—nullity—non-consummation—ground for nullity only if respondent wilfully refused to consummate marriage—petitioner may not rely on own refusal to consummate

The petitioner sought an order declaring his marriage to the respondent null and void on the ground of duress.

The parties met in Jamaica in 1987, and the respondent subsequently visited the petitioner in the Islands on several occasions. In 1990, they had a daughter, GE, who was born in Jamaica. The parties subsequently married in 1995.

The petitioner claimed that his marriage to the respondent was invalid as he had only married her so that GE, who was a Jamaican national, would be entitled to remain in the Islands. He submitted that the marriage was therefore void (a) on the grounds of duress, pursuant to s.8(1) of the Matrimonial Causes Law (2005 Revision), as he had been told by the Immigration Department that GE would not be entitled to remain in the jurisdiction unless the parties were married, and he feared that if she returned to Jamaica she would suffer serious hardship and he would not be able to see her; and (b) pursuant to s.8(3) of the Law, as the marriage had not been consummated.

The respondent submitted that (a) the petitioner had married of his own free will for love, as well as for the purposes of keeping GE in the Islands, and had not been pressured into marriage; and (b) the marriage had been consummated.

Held, dismissing the petition for a declaration of nullity:

(1) The marriage was not invalid on the grounds of duress, as the petitioner had not established on the balance of probabilities that his will had been overborne and that he had not therefore truly consented to the marriage. In demonstrating that his will had been overborne by a threat or

other pressure, the petitioner did not need to demonstrate a threat to ‘life, limb or liberty’ or that any pressure was more than a reasonable person could bear; it was sufficient for him to show on a subjective basis that the pressure had vitiated his consent. The court was, however, to take into account the importance of the institution of marriage and should not be too ready to declare a marriage null and void (para. 29; para. 46; paras. 65–68).

(2) In the Islands, unlike in England and Wales, a marriage induced by duress was to be considered void rather than voidable by virtue of s.8(1) of the Matrimonial Causes Law (2005 Revision), so that no valid marriage would be deemed to have come into existence. In addition, the doctrine of approbation, which stated that the petitioner”s conduct could preclude him from disputing the validity of the marriage, did not apply in cases of void marriage, and there was no time limit in which a petitioner alleging duress was required to present his petition (paras. 23–26).

(3) The marriage was not void on the basis of non-consummation as the court was satisfied on the balance of probabilities that the parties had had sexual intercourse; in any event, non-consummation could only be relied on as a ground for nullity if the respondent had wilfully refused to consummate the marriage, and in the present case it was the petitioner who claimed that he had refused to have sexual intercourse. The petitioner was also time-barred according to s.8(3) of the Matrimonial Causes Law (2005 Revision), as proceedings had not been commenced within one year of the date of the marriage (para. 16; para. 21).

1 WILLIAMS, J.: The petitioner, CE, 81 years old, seeks an order that his marriage be declared null and void pursuant to s.8(1)(c) of the Matrimonial Causes Law (2005 Revision) (‘the Law’) on the basis that he married BE, the respondent, who is 41 years old, under duress.

Procedural background

2 The parties were married on December 20th, 1995. The parties had one child, GE, born on January 16th, 1990, so she is now 26 years old. On October 7th, 2011, BE filed ‘an application for judicial separation’ in Cause No. Fam. 227/2011. CE filed his acknowledgement of service on October 19th, 2011, in which he indicated an intention to defend. On September 7th, 2012, BE filed a summons in which she sought leave to amend the judicial separation petition to a petition for the dissolution of marriage. On September 28th, 2012, Smellie, C.J. made the order sought by BE. The amended petition was filed on November 14th, 2012 and served on CE on November 28th, 2012. On January 27th, 2013, in the absence of a notice of intention to defend and an answer, the Chief Justice proved the petition.

3 On November 8th, 2011, CE sent a written ‘reminder’ to BE stating that her claims in the separation application were serious and he suggested that she end ‘her board of residence’ at the property. On March 1st, 2012, CE filed a writ of summons and statement of claim naming BE as the defendant and alleging libel and perjury. A defence to that was filed on

March 16th, 2012. The notice of the hearing was issued on June 14th, 2012. That action was struck out by the Chief Justice on September 28th, 2012 as he found there to be no reasonable cause of action. CE stated in oral evidence that at that hearing ‘the corruption started,’ as he claimed that only the Chief Justice and Mr. Murray were in the room when the Chief Justice made the order. He stated that this was because ‘birds flock together’ and that there is a lot of ‘corruption in government from the top down.’ He clarified that what he meant by ‘birds’ was ‘them Jamaicans’ and that ‘as far as I know [Mr. Murray], the Chief Justice and [BE] are Jamaican.’ He went on to say: ‘[T]he three Jamaican flock together in the Chambers, I think that is right.’ And he reconfirmed his view: ‘[M]y opinion is yes, that is when the corruption started.’ Mr. Murray indicated to the court that all the parties were in the court when the Chief Justice made his ruling. This is not the only time during the hearing that CE made outlandish and unsubstantiated comments, but by doing so it brought into question his credibility when I considered evidence relevant to the issue of duress.

4 On November 13th, 2012, CE served a notice on BE requiring her and GE to vacate the former matrimonial home.¹ BE states that, as a consequence of threats of physical harm if she did not vacate the property, which she says were made to her by CE, she left the former matrimonial home on November 24th, 2012.

5 On December 11th, 2012, BE filed a summons seeking interim spousal maintenance, leave to file a caution against the former matrimonial home and an order transferring that property back into CE”s name. These orders were sought because, upon inspection of the Land Register, BE became aware that, on October 8th, 2012, only a few days after having been served with her summons to amend the petition, CE had transferred the property into the name of his daughter from a previous relationship. It is likely that this was a sham transfer effected at that time by CE to disguise the asset.

6 On February 14th, 2013, the court granted an interim injunction forbidding CE from instructing or encouraging any other person from aiding and abetting the registration of dispositions and the making of entries in relation to the property and adjourned the balance of the summons for a return date hearing on March 15th, 2013. On the return date, no order was made in relation to the injunction application as a caution had been lodged and the interim spousal maintenance application was adjourned to a date to be fixed.

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1 Although BE had vacated the former...