Watt v Nunes

• Jurisdiction: Cayman Islands
• Judge: (Ramsay-Hale, J.)
• Judgment Date: 23 July 2020
• Court: Grand Court (Cayman Islands)

WATT

and

NUNES

(Ramsay-Hale, J.)

Grand Court, Family Division (Cayman Islands)

Family Law — nullity — fraud — where petitioner knew before marriage that respondent previously charged with criminal offence and did not wish to have children, petition based on respondent’s criminal character and refusal to have children dismissed

Held, dismissing the petition:

(1) Even though the petition was undefended, the Law required the court to consider the evidence on which the petitioner relied in his suit for nullity and decide whether, on the facts asserted, the petition was proved. If it was not proved, the court could dismiss the petition (para. 7).

(2) For a valid contract of marriage, there must be “virtual consent” by both parties, with knowledge on their part of all material facts. Although the petitioner complained of the respondent’s putatively criminal character, he knew before the marriage that she had been charged with a criminal offence and he married her with that knowledge. He also knew that she was ambivalent about having another child but convinced himself that she had changed her mind. It was hard to discern that she led him to believe she was prepared to have a child with him. The allegations of fraud or fraudulent misrepresentation on which the petitioner relied could not avail him in his application to have his marriage to the respondent declared void. The case fell squarely within the principle that no mistake as to the qualities of a person would impeach the bond of marriage. A mistake as to a spouse’s attributes was not a ground for avoiding a marriage, as disappointment as to their character did not constitute fraud (para. 15; paras. 19–22).

Cases cited:

(1)Ewing v. Wheatley, [1814] Eng R 357; (1814), 2 Hag Con 175; 161 E.R. 706, followed.

(2)Moss v. Moss, [1897] P. 263, followed.

(3)Swift v. Kelly (1835), 3 Knapp. 257, referred to.

Legislation construed:

Matrimonial Causes Law (2005 Revision), s.8: The relevant terms of this section are set out at para. 4.

Matrimonial Causes Rules (2009 Revision), r.15: The relevant terms of this rule are set out at para. 6.

The petitioner sought a decree of nullity of marriage.

Following a short courtship, the parties married in the respondent’s hometown in Jamaica in 2019. The respondent had difficulty in obtaining the Police Clearance Certificate which she required to obtain permanent residence as the wife of a Caymanian. She travelled to the Cayman Islands in December 2019 to join the petitioner and the parties started their married life at the petitioner’s home. Some 10 days after arriving in the Cayman Islands, the respondent left the matrimonial home and never returned.

The petitioner applied for a decree of nullity of marriage on the ground of fraud pursuant to s.8 of the Matrimonial Causes Law (2005 Revision), which provided:

“8. (1) For the purpose of this section a marriage is void if—

. . .

(c)the parties were not virtually consenting thereto by reason of duress, fraud or incapacity of mind.”

The petitioner asserted that the respondent had falsely represented herself. First, he averred that before the marriage she had informed him that she had been charged with a criminal offence some 11 years earlier but that it had been dismissed by a court and she would be able to obtain a Police Clearance Certificate. The petitioner believed, from her failure to obtain a certificate, that she had not been forthcoming about the charge and that she was in fact unable to obtain a certificate. Secondly, the petitioner claimed that he had told the respondent before their marriage that he wanted to have a child, that she had indicated that she did not plan to have any more...