L.W.E. v J.F.

• Jurisdiction: Cayman Islands
• Judge: Schofield, J.
• Judgment Date: 31 October 1991
• Court: Grand Court (Cayman Islands)
• Docket Number: D58 of 1991
• Date: 31 October 1991

L.W.F.

and

J.F.

Schofield, J.

D58 of 1991

Grand Court

Family law - Husband and wife — Divorce — Application for orders pending suit — Urgent matter relating to wife's accommodation — Preliminary point as to jurisdiction — Husband not resident in the Cayman Islands for at least 2 years proceeding presentation of divorce petition — Court had no authority to entertain cross-petition by husband — Whether the court should not entertain the application because there was no reciprocity.

Appearances:

Mr. Alan Turner for Petitioner.

Mr. Norman Hill QC and Mr. Graham Hampson for Respondent.

Schofield, J.

1 This application for orders pending suit, filed pursuant to section 19 of the Matrimonial Causes Law, has been adjourned out several times I understand in anticipation that the parties will come to final agreement on ancillary matters. As yet they have failed to do so, and an urgent matter, relating to the wife's accommodation, has arisen which requires a determination by the Court.

2 A preliminary point was taken on jurisdiction. This is the wife's petition. The Court has jurisdiction to entertain the petition on the grounds that the wife has been ordinarily resident in the Islands for at least two years immediately proceeding the presentation of the petition (see Section 5 of the Matrimonial Causes Law). The husband would not be able to file a petition because he does not fall within the scope of Section 5 and, the husband argues on the authority of Russell v. Russell and Roebuck [1957] 1 All E.R. 929, a decision of the High Court of England, that because this Court has no jurisdiction to entertain his petition it has no jurisdiction to entertain his cross-petition. Divorce proceedings were filed first in England, where both parties may petition or cross-petition, and the husband argues that England is the proper jurisdiction for this suit. I do not comment upon whether this Court would follow the decision in Russell for we are here dealing with an application made, riot on the husband's cross petition, but on the petition properly filed over which this Court has jurisdiction. Be that as it may, the husband's argument goes, because he cannot be heard on a cross-petition there is no reciprocity and therefore the Court ought not to entertain an application for interim orders.

3 The English Court of Appeal decision in Levett v. Levett and others [1957] 1 All E.R. 720 has been cited in support of that contention. In that case a decree of a German Court was not recognized because the English Court would not have had jurisdiction in the circumstances under which the German Court exercised jurisdiction.

4 I cannot accept that decision as authority for the proposition that I cannot or ought not to exercise jurisdiction in ancillary matters where our Law expressly provides me with the jurisdiction. There is no argument that the petition is properly filed pursuant to Section 5 of the Law. The suit is before this Court and according to Section 19 of the Law the Court may make orders “pending the outcome of the suit in respect of which the petition has been presented”. It would be strange indeed if having properly presented a petition to this Court the wife was prevented from moving the Court for orders for interim maintenance and the like which may be of an urgent and compelling nature. I find I have jurisdiction to entertain this application.

5 I am being asked to consider this application as a matter of urgency because the landlord of the apartment at which the wife is residing, Villa 312 Britannia, West Bay Road, is refusing to accept a...