W v W

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 13 February 1995
• Court: Grand Court (Cayman Islands)
• Date: 13 February 1995

Grand Court

(Smellie, J.)

W (M.S.)

and

W (D.J.)

P. Boni for the petitioner;

R.D. Alberga, Q.C. for the respondent.

Cases cited:

(1) Hopkins v. Hopkins, [1951] P. 116; [1950] 2 All E.R. 1035, considered.

(2) Levene v. Inland Rev. Commrs., [1928] A.C. 217; [1928] All E.R. Rep. 746.

(3) Norris, In reUNK(1888), 4 T.L.R. 452, followed.

(4) R. v. Barnet London Borough Council, ex p. Shah, [1983] 2 A.C. 309; [1983] 1 All E.R. 226, followed.

Legislation construed:

Matrimonial Causes Law (Law 9 of 1976), s.2: The relevant terms of this section are set out at page 329, lines 25–26.

s.5: ‘The court has jurisdiction to entertain a suit arising out of this Law where at the time of filing suit; or at a material time with reference to the suit and within one year of the presentation of the petition, either of the parties to the suit was domiciled in the Islands; or the party filing suit, being a female, had been ordinarily resident in the Islands

for at least two years immediately preceding the presentation of the petition.’

Family Law-divorce-jurisdiction of court-ordinary residence of wife under Matrimonial Causes Law, s.5 is habitual normal residence within jurisdiction combined with voluntary presence and settled purpose-not necessary to spend more time within jurisdiction than outside it-can be ‘ordinarily resident’ in two jurisdictions at once

The respondent husband sought the striking out of the petitioner”s petition for divorce and her interlocutory summons relating to ancillary matters.

The parties were American citizens who married in 1990. The respondent had a long-standing association with the Cayman Islands and owned a substantial residential property here. Since the marriage that property had been kept as an established home by the parties. In particular, the petitioner had expended time and energy on making the property an attractive home. The respondent had built another residence in North Carolina in 1993 and they occupied it from that date for longer and more regular periods than were spent in the Cayman Islands. However, the parties made regular and sometimes prolonged visits to the Islands even after 1993. In addition, the petitioner was a member of local community associations and had made plans with the respondent to spend their retirement years in the Islands. Both parties had acquired permanent residence here, the respondent in 1987 and the petitioner, whose permanent residence was based on the respondent”s, in 1992.

The respondent submitted that the court lacked jurisdiction to entertain the petition because the petitioner had not been ‘ordinarily resident’ in the Cayman Islands for the preceding two years, as required by the Matrimonial Causes Law, 1976, s.5, since (a) ‘ordinarily resident’ had a special meaning in this context, namely, that the petitioner had to show that she regarded the Islands as her ‘real home,’ and she could not do so, and (b) alternatively, giving ‘ordinarily resident’ its natural meaning, the petitioner still could not satisfy the statutory requirement because she had spent more time outside the jurisdiction than within it.

In reply, the petitioner submitted that since (a) ‘ordinarily resident’ by virtue of s.2 of the local Law had the meaning given to it in English law and no special meaning had been given to it in matrimonial disputes under English law; and (b) it was impossible to restrict the connotation of ordinary residence to its duration, particularly since a person could be ‘ordinarily resident’ in two jurisdictions at the same time, the petitioner

was ‘ordinarily resident’ in the Cayman Islands and thus the court had jurisdiction to entertain the petition.

Held, dismissing the respondent”s summons to strike out the petition:

(1) The term ‘ordinarily resident’ was to be given its ordinary meaning unless the legislative context required it to have a different meaning. It could not be given a special meaning in this context, since by virtue of the Matrimonial Causes Law, 1976, s.2 the meaning was to be that given by English law, which accepted that the ordinary meaning of the term applied in the context of matrimonial disputes (page 326, line 16 – page 330, line 24).

(2) To be ordinarily resident, a person had to be habitually and normally resident within the jurisdiction, apart from temporary or occasional absences of long or short duration. In addition, the residence must be voluntarily adopted and there must be a degree of settled purpose, be it specific or general. The petitioner”s absences from the jurisdiction were not decisive since it was established that a person could be ordinarily resident in two jurisdictions at the same time, and the requirement of residence within the jurisdiction throughout the prescribed period implied a degree of continuity of purpose and presence rather than that more time be spent within the jurisdiction than outside it. The petitioner had established that the Cayman Islands had been a home for her during the prescribed period as a continuous, settled and ordinary part of the regular order of her life, in view of her plans to spend her retirement years here and her active role in the community. It followed that she was ‘ordinarily resident,’ the court therefore had jurisdiction to entertain her petition and the respondent”s summons to strike it out would be dismissed (page 324, line 13 – page 326, line 26; page 326, line 36 – page 327, line 21; page 328, lines 26–35;page 331, lines 15–45).

SMELLIE, J.: This matter involves the issue whether the petitioning
wife was ordinarily resident in the Cayman Islands for at least two years
immediately preceding the presentation of her petition. This is the period
prescribed by s.5 of our Matrimonial Causes Law where the petitioner is a
10	wife seeking to invoke the court”s jurisdiction by reliance on her ordinary
residence here.
The matter comes before the court, on this occasion, on the husband”s
summons to strike out the wife”s petition and to strike out her interlocutory
summons which sought and obtained certain ex parte relief.
15	The ex parte interlocutory relief included orders restraining the husband
from disposing of or transferring certain assets held within the Cayman
Islands and from interfering with the wife”s peaceful occupation of a
putative matrimonial home at Casa Del Mar, Canal Point, Grand Cayman.
The husband”s striking-out summons proceeds on the basis that this
20	court has no jurisdiction to entertain the wife”s petition or other
proceedings based on it. He asserts that she had not been ordinarily
resident in the Cayman Islands for the prescribed period.
In light of this jurisdictional challenge leave was required by and was
granted to the husband to enter a conditional appearance to argue his
25	striking-out summons. His appearance was thus entered under notice of
protest as required by r.22 of the Matrimonial Causes Rules and Forms
1989 (Jamaica)-as to which see s.4 of the local Law, which adopts the
Jamaican Rules on the point.
In a ruling delivered on February 6th, 1995 the husband”s striking-out
30	summons was dismissed upon the court”s holding that it was seised of
jurisdiction to entertain the wife”s petition. In elaborating upon the reasons
for that decision, it is necessary to set out in some detail the history of the
relationship of the parties and of the circumstances surrounding their lives
together. The parties are both American citizens. They first met in 1989.
35	They were married on September 10th, 1990 in the State of Florida. Both
were divorcees, this being the petitioner”s second marriage and the
respondent”s fourth. The respondent had, prior to the marriage, a long-
standing association with the Cayman Islands dating back to 1973.
It is a part of the petitioner”s assertion in this matter that during his last
40	marriage, the respondent and his wife at the time had regarded and treated
the Cayman Islands as a place of residence. This history was invoked by the
petitioner to point to the natural continuity of her residence here with
the respondent after their marriage. The respondent seeks to refute that
history.
45	Nonetheless, through the vehicle of various corporate entities which he

owns or in which he has interests, the respondent has acquired real
property here, is the owner of boats registered or based here and, from the
limited evidence so far available in the proceedings, it appears he also
holds considerable other assets here.
5	The respondent”s practice, it seems, has been to vest legal title to his
various properties, in particular, for present purposes, his successive
homes, in companies registered in the Cayman Islands and elsewhere. For
present purposes this is of significance in so far as it relates to Casa Del
Mar, a substantial residential property at Canal Point, Grand Cayman. It
10	was built by the respondent circa 1984–85 and continuously maintained
and occupied by him since then.
This is acknowledged to be the case although legal title to Casa Del Mar
is held by a Cayman corporation named ‘Blue Water Ltd.’ and
notwithstanding a veiled suggestion, in oral evidence from the respondent,
15	that he and the petitioner were permitted to occupy Casa Del Mar as
caretakers only. It later became clear, however, that any such arrangement
was not to be taken as a denial of his true beneficial interest in that
property. Rather, simply that the respondent typically arranged by some
such stratagem for business purposes, to conceal his ultimate beneficial
20	ownership of the property.
What was largely disputed upon the present hearing was whether Casa
Del Mar had continuously been used by

...