A v B and C

• Jurisdiction: Cayman Islands
• Judge: (McMillan, J.)
• Judgment Date: 20 November 2018
• Date: 20 November 2018
• Court: Grand Court (Cayman Islands)

A

and

B and C

(McMillan, J.)

Grand Court, Family Division (Cayman Islands)

Family Law — financial provision — maintenance pending suit — awarded pursuant to Matrimonial Causes Law (2005 Revision), s.20 — sole criterion is reasonableness — marital standard of living important but order not intended to meet standard — budget listing short-term expenses to be scrutinized — if respondent’s evidence of ability to pay deficient, court should err in favour of applicant, but not to make findings about parties’ credibility

Held, ordering as follows:

(1) The court had jurisdiction to award interim maintenance pending suit pursuant to the Matrimonial Causes Law (2005 Revision), s.20. The court would take into account the following principles. (i) The sole criterion to be applied in determining an application was reasonableness, which was synonymous with fairness. (ii) A very important factor in determining fairness was the marital standard of living, though the exercise was not merely to replicate that standard. (iii) In every application there should be a specific budget for maintenance pending suit which excluded capital or long-term expenditure, which were more aptly considered at a final hearing. The budget should be examined critically to exclude forensic exaggeration. (iv) Where the disclosure by the payer was obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court was not confined to the payer’s evidence as to the extent of his income or resources. In such a situation the court should err in favour of the payee. (v) Where the paying party had historically been supported by an outside party, and where the payer wasasserting that the assistance had been curtailed but the position of the outsider was ambiguous or unclear, the court would be justified in assuming that the third party would continue to provide assistance, at least until the final trial. In addition to those broad guidelines, the court also reminded itself that it was to enquire into and satisfy itself as to the needs of the claiming party. The court further noted that the purpose of an award pending suit was to put in place a relatively short-term measure on a needs basis as those needs were suitably identified so as to preserve the situation until the court could make whatever final ancillary orders the interests of justice required (paras. 6–9; para. 16).

(2) In the present case, the court noted that the needs of the petitioner had been expanded and exacerbated by the significant purchases made by the respondent. The petitioner no longer had access to funds and resources which could otherwise have been called upon for her own use and the general benefit of the children. An award of periodic maintenance pending suit was permissible in law and desirable in practice. The court bore in mind that while it was not able to replicate the parties’ former standard of living, it should not seek to be overly precise in the award...