Hawkes v Hawkes

• Jurisdiction: Cayman Islands
• Judge: (Douglas, Ag. J.)
• Judgment Date: 30 October 1996
• Court: Grand Court (Cayman Islands)
• Date: 30 October 1996

Grand Court

(Douglas, Ag. J.)

HAWKES

and

HAWKES

Mrs. A.R.M. Hernandez for the petitioner;

P. Lamontagne, Q.C. and G.E. Nervik for the respondent.

Cases cited:

(1) -Aikman v. Aikman(1861), 7 Jur. N.S. 1017; 3 Macq. 854, dicta of Lord Campbell, L.C. applied.

(2) -Doucet v. GeogheganELR(1878), 9 Ch. D. 441.

(3) -Fuld (No. 3), In re, Hartley v. Fuld, [1968] P. 675; [1966] 2 W.L.R. 717, applied.

(4) -Gulbenkian v. Gulbenkian, [1937] 4 All E.R. 618.

(5) -Henderson v. Henderson, [1967] P. 77; [1965] 1 All E.R. 179.

(6) -May v. May, [1943] 2 All E.R. 146, applied.

(7) -Stone v. Stone, [1958] 1 W.L.R. 1287; [1959] 1 All E.R. 194, considered.

(8) -Udny v. Udny(1869), L.R. 1 Sc. & Div. App. 441, dictum of Lord Westbury applied.

(9) -White v. Tennant(1888), 31 W. Va. 790; 2 S.E. 596.

(10) -Winans v. Att. Gen., [1904] A.C. 287; [1904–7] All E.R. Rep. 410.

(11) -Zanelli v. Zanelli, [1948] W.N. 381; (1948), 82 Sol. Jo. 646, followed.

Legislation construed:

Matrimonial Causes Law (Law 9 of 1976), s.5: The relevant terms of this section are set out at page 320, lines 14–20.

Family Law-divorce-jurisdiction-domicile-animus manendi-resi-dence merely raises presumption of intention to settle-sale of home in domicile of origin persuasive evidence of abandonment of that domicile and adoption of new one

Family Law-divorce-jurisdiction-domicile-conditional residence-may acquire domicile whilst subject to work-permit and despite possibility of future work outside jurisdiction

Family Law-divorce-jurisdiction-domicile-standard of proof-court to ‘satisfy its conscience’ of party”s intention to settle permanently-may treat Islands” fiscal and climatic advantages as persuasive evidence of animus manendi

Family Law-divorce-jurisdiction-domicile-court may not assume jurisdiction merely because domicile of origin has none-domicile of choice to be established on evidence

The court tried, as a preliminary issue, the question whether the petitioner was domiciled in the Cayman Islands so as to give the court jurisdiction to hear his divorce petition.

The petitioner had come from Canada with his wife and child to work in the Islands, initially on a two-year contract and subject to an annually renewable work-permit. They had given up their Canadian residence and closed most of their bank accounts there but retained their home in Toronto in addition to a house which they bought in Grand Cayman. The Toronto house was sold shortly before the husband commenced the present proceedings, after five years of residence in the Islands.

The petitioner gave evidence that, although he had not yet applied for permanent residence in the Cayman Islands and his employment might in future take him out of the jurisdiction if his work-permit were not renewed, his contract had become indefinite. He had established links with the local community and, apart from regular visits to Canada for the purposes of work and visiting relatives and the possibility that his son would be educated in Canada, he had adopted Grand Cayman as his home.

The petitioner submitted that (a) he had shown that he intended to make Grand Cayman his permanent home in spite of the time restrictions placed on his employment by his fixed-term contract and renewable

work-permit, having taken all necessary steps to terminate his Canadian residence shortly after arriving in the Islands; (b) at the time of presenting his petition, he had established over five years” residence here, during which he had ended all significant remaining links with his domicile of origin and become integrated into the local community, regarding Grand Cayman as his present home wherever his future employment might take him; (c) furthermore, since the appropriate standard of proof in cases concerning domicile was that of the conscience of the court, the court should accept his own evidence alone, bearing in mind the fiscal and climatic attractions of the Cayman Islands, in assessing whether he had the required animus manendi; and (d) the court should also be concerned not to deny him the opportunity of dissolving his marriage by declining jurisdiction, since there was expert evidence that neither party could now obtain a divorce anywhere in Canada, having surrendered their Canadian residence.

The respondent submitted that (a) the temporary nature of the petitioner”s employment and the parties” retention of their home in Toronto and of other links with Canada precluded his acquiring domicile in the Cayman Islands either upon arrival in Grand Cayman or during his subsequent years of residence here, since he could have no intention of making a permanent home in those circumstances; (b) even now that the terms of his employment were indefinite and the family home in Canada had been sold, the petitioner”s future in Grand Cayman was dependent on having his work-permit renewed and he might in time return to his domicile of origin, with which he maintained strong links, or move to some other Caribbean country; (c) the petitioner had therefore not sufficiently established domicile, particularly since his evidence was unsupported by that of any other witness; and (d) the absence of any other jurisdiction in which he could petition for divorce was not a reason for the court to find that he had acquired domicile here.

Held, ruling that the petitioner had established his domicile:

(1) Whilst residence in the Cayman Islands raised a strong presumption of intent to remain here permanently, the petitioner clearly had not formed such an intent upon arrival in Grand Cayman, having done no more toward changing his domicile than was necessary to terminate his liability to taxation in Canada. The parties” retention of the family home in Toronto was a significant factor in this respect (page 322, lines 11–25).

(2) However, their continued residence in the Cayman Islands, taken together with the sale of their house in Canada and the changing of the petitioner”s employment to an indefinite footing, was persuasive evidence that he had come to regard Grand Cayman as his home. Neither the fact that his stay in the Islands was dependent upon a work-permit, nor that he might in future be forced to take work elsewhere prevented him from acquiring a domicile of choice here (page 322, line 39 – page 323, line 12; page 323, line 39 – page 324, line 2; page 325, lines 23–28).

(3) On the issue of domicile the court needed to ‘satisfy its conscience’ that the propositus, in this case the petitioner, had proved his animus manendi. The evidence required to do so would vary with the facts, and in this case less evidence was needed to prove an intention to migrate to a warm, tax-free jurisdiction such as the Cayman Islands than would satisfy the court in the context of some other less hospitable destination. The petitioner”s evidence alone therefore sufficed to prove his intentions (page 321, lines 17–26; lines 29–41; page 325, lines 2–11).

(4) Finally, the absence of an alternative jurisdiction in which the parties could dissolve their marriage did not itself confer jurisdiction on the court to hear the petition but was a further justification for the court to assume jurisdiction once a domicile of choice had been established (page 324, lines 20–37).

DOUGLAS, Ag. J.: As required by s.5 of the Matrimonial Causes
40	Law (Law 9 of 1976) the petitioner, in para. 3 of

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