E(R) v D(C)
| Jurisdiction | Cayman Islands |
| Judge | (Williams, J.) |
| Judgment Date | 18 February 2016 |
| Date | 18 February 2016 |
| Court | Grand Court (Cayman Islands) |
(Williams, J.)
C. Fee for the petitioner;
G. Hampson for the respondent.
(1) AT v. JT, Grand Ct., Cause No. 34 of 2012, March 6th, 2015, unreported, followed.
(2) B v. B (Mesher Order), [2003] 2 FLR 285; [2002] EWHC 3106 (Fam), distinguished.
(3) Bishop, In re, [1965] Ch. 450; [1965] 2 W.L.R. 188; [1965] 1 All E.R. 249, referred to.
(4) C v. C, Guernsey Royal Ct., August 23rd, 2007, unreported; noted at 2007–08 GLR N[13], dicta of Finch, Lieut. Bailiff applied.
(5) Charman v. CharmanUNK(2007), 9 ITELR 913; [2007] 1 FLR 1246; [2007] 2 F.C.R. 217; [2007] EWCA Civ 503, applied.
(6) Doak v. Doak, 2002 CILR 224, followed.
(7) Dorney-Kingdom v. Dorney-Kingdom, [2000] 2 FLR 855; [2000] 3 F.C.R. 20; [2000] Fam. Law 794, considered.
(8) Ebanks v. Zelaya-Ebanks, C.A., CICA No. 23 of 2012, January 3rd, 2014, unreported; noted at 2014 (1) CILR N[1], followed.
(9) Gordon v. Watler, C.A., CICA No. 13 of 2014, September 9th, 2014, unreported, applied.
(10) Hoddinott v. Hoddinott, [1949] 2 K.B. 406; (1949), 65 TLR 266, considered.
(11) Jones v. Maynard, [1951] Ch. 572; [1951] 1 All E.R. 802, referred to.
(12) K v. K (Financial Relief: Management of Difficult Cases), [2005] 2 FLR 1137, followed.
(13) L v. L (School Fees: Maintenance: Enforcement), [1997] 2 FLR 252, referred to.
(14) McTaggart v. McTaggart, 2011 (2) CILR 366, applied.
(15) Mesher v. Mesher, [1980] 1 All E.R. 126, considered.
(16) Miller v. MillerELRWLRUNKFLRUNKUNK, [2006] 2 A.C. 618; [2006] 2 W.L.R. 1283; [2006] 3 All E.R. 1; [2006] 1 FLR 1186; [2006] 2 F.C.R. 213; [2006] UKHL 24; previous proceedings, sub nom. McFarlane v. McFarlane, [2004] 2 FLR 893; [2004] 2 F.C.R. 657; [2004] EWCA Civ 872, applied.
(17) Practice Direction (Periodical Payments: Ancillary Relief: Payment of School Fees)FLR(1983), 4 FLR 513, referred to.
(18) Practice Direction (Periodical Payments: Children), [1987] 1 W.L.R. 1165; [1987] 2 All E.R. 1084; [1987] 2 FLR 225, referred to.
(19) Richards v. Dove, [1974] 1 All E.R. 888, referred to.
(20) Rossi v. Rossi, [2007] 1 FLR 790; [2006] 3 F.C.R. 271; [2006] EWHC 1482 (Fam), applied.
(21) Suter v. Suter, [1987] Fam. 111; [1987] 3 W.L.R. 9; [1987] 2 All E.R. 336; [1987] 2 FLR 232; [1987] Fam. Law 239, considered.
(22) Tattersall v. Tattersall, [2014] 1 FLR 997; [2013] 3 F.C.R. 453; [2013] Fam. Law 1375; [2013] EWCA Civ 774, distinguished.
(23) W v. W, 2009 CILR 255, considered.
(24) Wachtel v. Wachtel, [1973] Fam. 72; [1973] 2 W.L.R. 366; [1973] 1 All E.R. 829, referred to.
(25) White v. White, [2001] 1 A.C. 596; [2000] 3 W.L.R. 1571; [2001] 1 All E.R. 1; [2000] 2 FLR 981; [2000] 3 F.C.R. 555; [2001] Fam. Law 12, followed.
(26) Wight v. Wight, 2006 CILR 1, applied.
Matrimonial Causes Law (2005 Revision), s.19: The relevant terms of this section are set out at para. 12.
s.21: The relevant terms of this section are set out at para. 13.
National Pensions Law (2012 Revision), s.52C(9): The relevant terms of this sub-section are set out at para. 48.
Matrimonial Causes Act 1973, s.25(1): The relevant terms of this sub-section are set out at para. 24.
Family Law—financial provision—Mesher order—order may allow spouse to live in matrimonial home rent-free until children complete education or attain 18 years of age if outright transfer or sale of property inappropriate—to consider (a) best interests of children, (b) length of time for which order to apply, and (c) whether children”s caregiver would otherwise be able to purchase alternative family home
Family Law—financial provision—periodical payments—only to order periodical payments to be made under Matrimonial Causes Law (2005 Revision), s.21(f) if order dividing matrimonial assets pursuant to s.21(b) inadequate to meet needs of parties—order may be made under Matrimonial Causes Law (2005 Revision), s.21(f) requiring party to pay children”s school fees until they complete secondary education if party has adequate resources and in best interests of children
The wife applied for various orders granting ancillary relief on divorce.
The husband and wife married in 2000, and had three children, aged between 11 and 15. The family lived in a home which had been purchased by the wife and was subsequently transferred into the joint names of the parties in 2005. The husband was employed as an accountant, earning roughly CI$13,000 per month (including an annual bonus); his income was subject to US taxation as he was an American citizen. The wife was employed as an office manager, earning roughly CI$5,000 per month.
The husband petitioned for divorce in 2012, and the parties separated in 2013, when the husband moved into rental accommodation.
The wife sought ancillary relief. She submitted that (a) the former matrimonial home should be transferred to her outright without any payment to the husband as she had custody of the children, and the husband had a higher income than her and was therefore more likely to be able to purchase an alternative property; (b) when dividing the parties” assets pursuant to s.21 of the Matrimonial Causes Law (2005 Revision), s.19 of the Law required the children”s interests to be ‘paramount,’ and the Law therefore required that the matrimonial home be transferred to her as it was in the best interests of the children that she retain the property; (c) the National Pensions Law (2012 Revision), s.52C(9) did not require the husband to repay into his pension the sums withdrawn from it to pay
the mortgage on the former matrimonial home, as that provision only applied when there had been a sale of the property, and was inapplicable where the property was merely transferred to a former spouse on divorce, and the husband therefore should not receive a greater interest in the property to reflect a liability under s.52C(9); (d) the husband”s valuations regarding the contents of the home and the wife”s jewellery were significantly exaggerated and should not be relied on when considering the value of the assets to be divided between the parties; (e) the husband”s liability for US tax should not be considered to be a matrimonial debt as the liability arose due to the husband”s mismanagement of his finances; and (f) the husband should be liable to pay the children”s school fees as this was in the children”s best interests.
The husband submitted in reply that (a) the former matrimonial home should be sold immediately in order to give the parties a ‘clean break’ and allow them to purchase their own accommodation; (b) the children”s interests were of first importance when distributing the parties” assets, but were not ‘paramount’ and were to be weighed against the parties” needs, and therefore an outright transfer of the property to the wife was not required by the Matrimonial Causes Law; (c) he had contributed to the former matrimonial home by drawing sums from his pension in order to pay the parties” mortgage, incurring a liability pursuant to s.52C(9) of the National Pensions Law to repay such sums on a transfer of the property to the wife, and he should therefore have an equal interest in the property with her; (d) the valuable contents of the home and the wife”s expensive jewellery should be taken into account by the court when determining the assets to be divided between the parties; (e) his liability for US tax should be considered a matrimonial debt as it was incurred while earning income used for the benefit of the family; and (f) the parties should both contribute to the payment of the children”s school fees as he had insufficient disposable income to pay the fees fully.
Held, granting the orders sought in part:
(1) A Mesher order would be granted, allowing the wife and children to occupy the former matrimonial home until the youngest child attained 18 years of age or completed secondary education. In determining whether to grant a Mesher order, the court was to consider (a) the best interests of the children; (b) the fact that such an order did not give the parties a ‘clean break’; (c) the length of time for which the order would apply; and (d) whether the party with responsibility for caring for the children would otherwise be able to purchase a family home. In the present case, a Mesher order would be appropriate as a transfer of the property to the wife would clearly not achieve equality between the parties; an immediate sale of the property was also inappropriate as it was unlikely that the wife would be able to afford an alternative family home and sale of the property would be disruptive for the children. Further, the husband was adequately accommodated in rental housing, and the order would only apply for seven years (para. 87; para. 92; paras. 95–96).
(2) The children”s interests were not ‘paramount’ by virtue of s.19 of the Matrimonial Causes Law (2005 Revision), and did not require that the former matrimonial home be transferred to the wife. When dividing the matrimonial assets between the parties pursuant to s.21 of the Law, s.19 required the court first to consider the best interests of the children of the marriage, and then the needs of the parties; English case law regarding s.25 of the Matrimonial Causes Act 1973, however, indicated that although the best interests of the children were to be considered as being of first importance, they were not ‘paramount,’ and were to be considered alongside the parties” incomes and needs. The court therefore retained a wide discretion to make such orders as it thought appropriate, and was not compelled to grant the orders sought by the wife on the basis that they were in the children”s best interests (paras. 23–28).
(3) The former matrimonial home constituted matrimonial property, as the matrimonial home was generally to be considered a shared asset, and it appeared that the parties had in any event pooled their assets; the husband would receive a 45%...
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AB v SB
...that there are still 2 minor children for which arrangements need to be made I also have in mind William J's decision in E(R) v D(C) [ 2016(1) CILR 55]— “28. …the position in the Cayman Islands is that the court should have regard first to the best interests of any children of the marriage ......