Dewitt v Dewitt

• Jurisdiction: Cayman Islands
• Judge: (Henderson, J.)
• Judgment Date: 03 May 2011
• Court: Grand Court (Cayman Islands)
• Date: 03 May 2011

Grand Court, Family Division

(Henderson, J.)

DEWITT

and

DEWITT

P.S. Boni for the petitioner;

Ms. V. Allard for the respondent.

Cases cited:

(1) Baker v. Baker (No. 2), [1997] 1 FLR 148; [1997] 2 FCR 249; [1997] Fam. Law 163, applied.

(2) Mosey v. Mosey, [1956] P. 26; [1955] 2 W.L.R. 1118; [1955] 2 All E.R. 391, distinguished.

(3) Wight v. Wight, 2006 CILR 416, dicta of Taylor J.A. applied.

Legislation construed:

Matrimonial Causes Law (2005 Revision), s.10(1): The relevant terms of this sub-section are set out at para. 7.

s.12(5): The relevant terms of this sub-section are set out at para. 10.

s.21: The relevant terms of this section are set out at para. 11.

Family Law-financial provision-matrimonial property-by Matrimonial Causes Law (2005 Revision), s.21, court to make final order dividing property at time of decree of dissolution-any prior rulings on division of property provisional and conditional on proof of grounds for divorce

Family Law-divorce-petition-no survival of divorce petition after death of one spouse-death ends court”s jurisdiction to consider fresh evidence, distribute matrimonial assets or pronounce decree of dissolution

The petitioner applied for financial provision in divorce proceedings.

The petitioner alleged that his marriage to the respondent had broken down irretrievably due to her unreasonable behaviour. An answer and cross-petition was filed on her behalf, denying facts alleged in the petition and alleging that the irretrievable breakdown of the marriage was caused by unreasonable behaviour by the petitioner. The petitioner filed a reply denying facts alleged by the cross-petition. The parties obtained a consent order allowing the petition and cross-petition to proceed by way of mutual petitions.

At an initial hearing, the court determined which assets were matrimonial assets, that distribution should take place on an asset-by-asset basis, and that certain assets should be distributed to either the petitioner or the respondent, and ordered further disclosure concerning the value of certain assets. However, the petitioner died before any further hearing could take place.

The petitioner”s executors applied for an order confirming that certain assets formed part of his estate, submitting that (a) the initial ruling concerning the division of assets was an effective disposition of the assets concerned; (b) the court should now make a final division of the other assets, considering fresh evidence; (c) the court should proceed on the basis that the marriage had effectively been dissolved by the order to proceed by way of mutual petitions, as they both contended that the marriage had broken down irretrievably; (d) alternatively, the court should proceed on the basis that a decree of dissolution was inevitable; and (e) the respondent should not be entitled to the assistance of the court, as she was in contempt of the disclosure order.

The respondent sought an order declaring that the ownership of the matrimonial assets was unaffected by these proceedings, submitting that

(a) as the court had not pronounced a decree of dissolution, it had not validly made an order effecting the division of matrimonial assets under s.21 of the Matrimonial Causes Law (2005 Revision); (b) the court should not take the view that the marriage had effectively been dissolved by the order to proceed by way of mutual petitions, as the petition and cross-petition could not both be correct; (c) nor should the court take the view that dissolution was inevitable, as under s.10(1) it could only make a decree of dissolution after a full inquiry into whether grounds for divorce were established; (d) the earlier ruling on division of assets was merely provisional and would not take effect without a decree of dissolution; (e) in light of the petitioner”s death, the court no longer had jurisdiction to consider fresh evidence, to distribute matrimonial assets or to pronounce a decree of dissolution; and (f) as she was not the applicant in this proceeding, it was irrelevant whether she was in contempt of the disclosure order.

Held, dismissing the petition as abated:

(1) The court would order that these proceedings had not affected the ownership of the parties” assets. In divorce...