H v H

• Jurisdiction: Cayman Islands
• Court: Grand Court (Cayman Islands)
• Judge: (Levers, J.)
• Judgment Date: 06 March 2007
• Date: 06 March 2007

H

and

H

(Levers, J.)

Grand Court

Family Law-divorce-jurisdiction-domicile-for purposes of Matrimonial Causes Law (2005 Revision), s.5, is residence coupled with genuine, proved intention to reside permanently-no single factor conclusive but court to consider, e.g. (a) declarations of intent to witnesses or in documents; (b) limited visits to country of origin; (c) applications for work permits over continuous period; (d) application for key employee status; (e) purchase of house or grave; (f) length of residence; and (g) ties to local community

Held, dismissing the application:

(1) The husband was ‘domiciled in the Islands’ within the meaning of the Matrimonial Causes Law, s.5, and the court had jurisdiction to hear the petition. His six-year residence here, his links with the local community, his relationship with his employer and his declarations to witnesses, when taken together, provided persuasive evidence of a genuine intention to reside here permanently. These factors, together with his acquisition of a home here, were sufficient to establish residence. Neither his ownership of property in the United Kingdom nor his liability to be deported under immigration legislation prevented his acquiring a domicile of choice in the Islands (para. 14; paras. 24–27).

(2) The domicile of a person was, in general, the place where he had made his permanent home. A person could have only one domicile at a time, and whilst his domicile of origin was that received at birth, he could acquire a domicile of choice by actual residence in another country coupled with a genuine intention to reside there permanently. This was a question of fact, to be proved by strong evidence in each case, sufficient to satisfy the conscience of the court. Whilst no single factor was conclusive, the court would consider such evidence as declarations of intent, including those in documents or emails; that only occasional, short visits were made to the country of origin; the application for work permits over a continuous period; an application for key employee status; the purchase of a house or grave in the domicile of choice; and residence there for a continuous period of five years. Furthermore, that a person had entered the country illegally did not prevent his being domiciled there, nor did he lose that status if his residence became unlawful at a later date, although illegality might be evidence that he could not reasonably intend to stay indefinitely (paras. 9–14; paras. 19–20; para. 22).

Cases cited:

(1) Bell v. KennedyELR(1868), L.R. 1 Sc. & Div. 307; 6 Macq. 69, considered.

(2) Boldrini v. Boldrini, [1932] P. 9; [1931] All E.R. Rep. 708, referred to.

(3) Cruh v. Cruh, [1945] 2 All E.R. 545; (1945), 115 L.J.P. 6; 173 L.T. 367; 62 T.L.R. 16, referred to.

(4) Gulbenkian v. Gulbenkian, [1937] 4 All E.R. 618; (1937), 158 L.T. 46, dictum of Langton J. applied.

(5) Hawkes v. Hawkes, 1996 CILR 317, applied.

(6) Le Mesurier v. Le Mesurier, [1895] A.C. 517; (1895), 11 T.L.R. 481, referred to.

(7) Lord v. Colvin(1859), 28 L.J. Ch. 361; 7 W.R. 250, dictum of Kindersley, V.-C. applied.

(8) Mark v. Mark, [2006] 1 A.C. 98; [2005] 3 All E.R. 912; [2005] 2 FLR 1193; [2005] 2 F.C.R. 467; [2005] INLR 614; [2005] WTLR 1223; [2005] Fam. Law 857; [2005] UKHL 42, applied.

(9) Szechter v. Szechter, [1971] P. 286; [1970] 3 All E.R. 905, dictum of Simon, P. applied.

Legislation construed:

Matrimonial Causes Law (2005 Revision), s.5: The relevant terms of this section are set out at para. 8.

The husband petitioned for divorce on the ground that the marriage had irretrievably broken down.

The husband, who was born in Kenya and educated in England, married the wife in London in 2001. The same year, they visited the Cayman Islands on a vacation and decided to come to live here. After the breakdown of the marriage, the husband filed for divorce here, claiming to be ‘domiciled in the Islands’ within the meaning of the Matrimonial Causes Law (2005 Revision), s.5. The wife applied to have the petition struck out on the ground that the court had no jurisdiction since the husband was not resident in the Cayman Islands but in the United Kingdom.

The husband submitted that (a) he had made a positive decision to reside in the Cayman Islands and had been resident for six years; (b) his commitment to the local community was evidenced by a witness statement from his friend and by his remaining here after Hurricane Ivan; (c) he had had a long professional relationship and had excellent career prospects with his current employer, who had requested that he be designated a ‘key employee’ to exempt him from the requirement that foreigners be ‘rolled over’ or sent back after seven years; (d) he had declared his intentions to remain here permanently to various friends and to his employer, as they had testified in affidavits; (e) although he continued to own properties in the United Kingdom, these were for investment purposes, and his failure to purchase property in the Cayman Islands was simply due to limited finances, resulting in part from his wife”s purchase of property in Ireland; and (f) he had not returned to the United Kingdom at all since November 2004.

The wife submitted in reply that (a) the husband”s claim to be domiciled here was not genuine, but was made for the sole purpose of

obtaining a speedy divorce; (b) he had not established any links with the local community; (c) his contract of employment was not indefinite and he would, in any event, be rolled over if he stayed for more than seven years; (d) he had made no application for permanent residency; (e) that he maintained a home in England but had not...