JS v WS
| Jurisdiction | Cayman Islands |
| Judge | Nicholas Mostyn |
| Judgment Date | 11 May 2018 |
| Date | 11 May 2018 |
| Docket Number | CAUSE NO: FAM 183 OF 2017 |
| Court | Grand Court (Cayman Islands) |
Hon. Mr. Justice Richard Williams
CAUSE NO: FAM 183 OF 2017
THE GRAND COURT OF THE CAYMAN ISLANDS
FAMILY DIVISION
Family Law — Maintenance Pending suit for spouse — Interim child maintenance, including child education element
Mr. Lawrence Aiolfi for the Petitioner
The Respondent in person
I have before me the Petitioner wife's Summons dated 16 January 2018. The Summons seeks an interim periodical payments order for the wife and for the children (N aged 6 and M aged 3) and is supported by her affidavit sworn on 16 January 2018 and her affidavit sworn on 2 May 2018. The Respondent husband has filed affidavits sworn on 18 January 2018, 27 April 2018 and 10 May 2018.
For convenience, and without intending any disrespect, I will refer to the parties as the husband and the wife.
As befits such applications for interim orders, neither party has sought to give any oral evidence today or to cross-examine the other. After the parties made their submissions I retired to consider the detail before me to enable me to deliver an Ex Tempore Ruling. After reviewing the matter and considering the figures I invited the parties back into Court and I informed them about the findings I was making in relation to the funds available and explained the types of orders I was considering making. I did so to afford them the opportunity to comment upon the figures I was relying upon and the types of orders that I could make. It appears that they understood how I reached the figures that I had, although they may not have been for the amounts that they were seeking. They also appeared to recognise that disposable income, especially if N were to attend summer school, would not be sufficient to enable M to attend nursery school.
The Summons comes within proceedings for divorce initiated by the wife's Petition for Dissolution of Marriage dated 16 August 2017. The Petition was proved on 11 September 2017. Directions were given on 28 February 2018 in relation to the Children Law issues, which include an application by the wife for leave to remove the children permanently from the jurisdiction. The husband wishes the children to remain with him in the Cayman Islands, presumably under a residence order. A referral has been made for a Court Welfare Officer's Report, which is due to be filed by 25 May 2018. A final hearing to determine the children issues is awaiting allocation of date by the Listing Officer. The Ancillary Relief hearing will be heard no sooner than six weeks after the conclusion of the Children orders hearing. With the above in mind, any orders made today may well be designed cover the needs of this family for a period of 4–6 months.
The husband is a 49 year old Canadian national. The wife is a 42 years old British national. The parties were married on 5 October 2008 and therefore it has been a medium length marriage. At this time, and likely until the conclusion of the proceedings, they and the children all reside in the matrimonial home.
The husband is currently in full-time employment. The wife does not work and the only income she receives is support from her parents or friends. Both parties are subject to roll-over in October 2018. The wife says that although she has enrolled with three employment agencies, she has not been able to find employment and this may be due to the roll-over situation. It is not clear whether the wife has made any investigations as to regularising her immigration status post-October 2018, this of course will be something she will need to address in the children proceedings and at the final ancillary relief hearing. The husband informs that he has met with an Immigration Consultant and has started to gather the information required for a permanent residency application which his employer has agreed to fund.
In any order I may make today I aim to bridge the gap up until the final hearing. Any order I make today is intended to be a temporary measure. Both parties should understand that today's order is not a final order and the Court in such circumstances, on the more limited evidence supplied and available at this early stage, only endeavours to put in place a fair holding order.
The parties should not see any order I make today as indicative of the final level of periodical payments or in fact whether any final order for spousal periodical payments is appropriate having regard to the clean break principle. The parties or their attorneys should not use any order made today as a yardstick.
As set out in s.19 of the Matrimonial Causes Law the Court shall have regard first of all to the best interests any children of the marriage, and then move on to consider the responsibilities, needs, financial and other resources, actual and potential earning power and deserts of the husband and wife. At this interim hearing after ascertaining the children's needs I will have concentrate on the parties' financial circumstances.
What I have to do is to take into account the income, outgoings and needs of each party as they appear at this time and make an order that will guide the wife over until the final determination whilst at the same time striving to minimise any hardship to the husband.
This is not a hearing for the Court to make findings about either party's credibility. In Campbell v Campbell (1998) 1 FLR 828, CA the approach commended was not to look in detail at the payer's budget but to see whether the maintenance was a fair proportion of his overall net income. The husband has indicated that his net income is $6,085. Although the wife is willing to accept this figure for the purposes of this interim hearing, she has indicated that she believes he may earn more than that, and reserves her position in relation to the income as these proceedings progress. The Court will not uncritically accept what either party says is their financial position, if there is reason to believe that something has been hidden. In the matter before me today, there is no reason to believe that either party has not given sufficient disclosure for the interim issues before me to be determined.
The approach of the Court when considering maintenance pending suit for a spouse is succinctly stated, referring to the case of T v T (financial provision) [1990] FCR 169, [1989] Fam Law 438, at paragraph 4A [711] issue 90 Butterworth Family Law as follows;
“The primary aim of the court will be to make such an order, if possible, which will give a spouse certainly sufficient money to discharge the day-to-day outgoings and to feed, clothe and keep a roof over the head of that spouse until the final adjustments and orders are made in relation to the matrimonial assets and the finances after decree nisi. … … Where there are sufficient assets revealed by the parties the usual exercise for the court is to balance needs against resources and thus come to a temporary figure until the whole questions of the division of the matrimonial property can be decided.”
Nicholas Mostyn QC then sitting as a Deputy High Court judge in TL v ML [2005] EWHC 2860 (Fam) gave the following often referred to guidelines:
1. The sole criterion to be applied is ‘reasonableness’ in accordance with section 22, which is synonymous with fairness.
2. A very important factor in determining fairness is the marital standard of living, although that is not to say that the exercise on a maintenance pending suit application is merely to replicate that standard.
3. In every maintenance pending suit application, there should be a specific budget for that application which excludes capital or long-term expenditure which should be considered at a final ancillary relief hearing. The budget should be examined critically in every case so as to exclude frenzied exaggeration.
4. Where the affidavit or Form E (in this jurisdiction affidavit as we do not ordinarily use Form E's) disclosed by the paying party is deficient, the court should not hesitate to make any robust assumptions about the ability to pay. The court is not confined to the mere say-so of the payer as to the extent of any income or...
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