Wheeler v Wheeler
| Jurisdiction | Cayman Islands |
| Judge | Smellie, J. |
| Judgment Date | 29 June 1997 |
| Court | Grand Court (Cayman Islands) |
| Date | 29 June 1997 |
Smellie, J.
Grand Court
Conflicts of Laws - Divorce — Recognition of foreign divorce — Grand Court may not order financial provision pursuant to foreign divorce — Public policy — Court may refuse recognition solely because of financial injustice to wife — Harshness of foreign ancillary relief laws, husband's reluctance to disclose assets and inadequacy of wife's legal advice relevant factors.
Bruce Campbell & Co. for the applicant.
Hunter & Hunter for the respondent.
Before the Court is the husband's application by which he seeks the recognition within this jurisdiction of a final decree of divorce granted to him by the General Court of Justice of North Carolina, in the United States. Some six weeks before his petition to the North Carolina Court, the wife commenced this cause by the presentation of her petition herein. She urges this Court not to recognise the North Carolina decree because — as has been argued on her behalf — the husband petitioned in that Court so as to avoid the jurisdiction of this Court and for the improper and unworthy motive of defeating her entitlement to maintenance and matrimonial property which this Court would enforce.
Upon filing her petition the wife immediately applied for interim relief. In so doing she cited reasons for her belief that it was the husband's intention to have her evicted from their home here, and so compel her to return to North Carolina and to submit to the jurisdiction of the North Carolina Court. She also presented evidence of an offer of settlement from him which she regarded as derisory and unfair but which, she stated, it was none the less the husband's intention to have imposed in North Carolina.
The husband, through his attorneys, has argued that no such objective can be proved by the wife, upon whom the burden admittedly rests in that regard. He argued instead that this Court should find that he did nothing more than exercise his right to petition in North Carolina — the place of his domicile — as, he also asserts, he had intended to do even before the wife's petition was filed here. It was also argued on his behalf that he had no right to cross-petition in this Court, he had not submitted to its jurisdiction, and so saw no legal impediment here to his petition to the North Carolina Court.
The principles by which this Court may grant or refuse recognition of a foreign divorce are now governed by statute as set out in s.7 of the Matrimonial Causes Law (“the Law”). Section 7 gives effect within the Cayman Islands to the Hague Convention on the Recognition of Divorces and Legal Separation, concluded on June 1st, 1970. In so doing, s.7 of the Law is based on the pattern of the English Recognition of Divorces and Legal Separations Act, 1.971.
The main objective of s. 7 of the Law is to provide for the due recognition in the Cayman Islands of the relevant decrees of divorce or judicial separation of foreign Courts of competent jurisdiction or such decrees obtained by means of other competent proceedings, and so to avoid “‘limping marriages.” That is the now well-known expression used “to describe a marriage which is recognised in one country but not recognised in another with the unhappy results which may follow therefrom — namely — bigamous remarriage, illegitimate children and uncertainty or confusion over status and property rights” ( ( Quazi v. Quazi [1980] A.C. at 776, per Wood, J.). Section 7 of the Law is therefore of pivotal importance and bears setting out in full:-
“(1) The Court will recognise the decree or order of a foreign Court or other legally effective proceeding with reference to the marital status of the parties to a marriage where, irrespective of whether the grounds for the making of such decree or order would, in the Islands, be grounds for making a similar decree or order, the Court is satisfied that with respect to the country within which the foreign Court has jurisdiction either spouse was at the date of the petition giving rise to the proceedings (whether in the first instance for legal separation or divorce) and culminating in such decree or order:-
(a) habitually resident in that country; or
(b) a national of that country; or
(c) domiciled in that country under the law relating to domicil there appertaining; and
the Court is satisfied that the foreign Court, tribunal or authority was competent in that country to make the decree or order or other legally effective pronouncement:
Provided that the validity of such decree or order of a foreign Court granting a divorce or judicial separation shall not be recognised in the Islands if it was granted at a time when, according to the law of the Islands, there was no subsisting marriage between the parties; and
Provided further that recognition by virtue of this section may be refused if such decree or order was obtained by one spouse:-
(a) without such steps having been taken for giving notice of the proceedings to the other spouse as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or
(b) without the other spouse having been given such opportunity to take part in the proceedings as, having regard to the matters aforesaid, should reasonably have been given;
or recognition would manifestly be contrary to public policy.
(2) Where the validity of a decree of divorce pronounced by a foreign Court is entitled to recognition by virtue of subsection (1) neither spouse shall be precluded from re-marriage in the Islands on the grounds that the validity of the divorce would not be recognised in some other country.
(3) Nothing in this section shall be construed as requiring the recognition of any finding of fact made in the proceedings of the foreign Court other than findings of fact upon which the jurisdiction was assumed, which later findings shall be binding upon the Court.” [Emphasis supplied.]
The parties being domiciled in North Carolina, the Court there being a Court of competent jurisdiction, and the wife having participated in the proceedings there, it is common ground that my deliberations may be centered on s.7 (1) and in particular on the second proviso to that subsection.
In fact, Mr. Lamontagne, Q.C. for the wife agreed, in the circumstances of this case, that he was unable to argue for non-recognition on any of the above-mentioned grounds of inadequacy of notice to his client of the North Carolina proceedings or of inadequacy of opportunity to take part in them, in so far as it could be argued that the husband was to be blamed in any such regard. He therefore confined his submissions in the end to the objection that recognition “would manifestly be contrary to public policy.” In that context, he did however seek to rely on what he described as the wife's “inability to meet the husband — for want of means — on an even basis” in the foreign forum. He cited what he described as the resultant injustice, which flowed from her not having been fully, and properly represented there and which would be only compounded if recognition were granted here. He urged that in the exercise of its discretionary powers to grant or refuse recognition on the ground of public policy, this Court might and ought to have regard to what he described as the “net effect” of granting or refusing recognition and that recognition should be refused if it “jarred on the conscience” of the Court. In this respect, he relied in particular on the decided cases of Newmarch v. Newmarch and Joyce v. Joyce. He argued that the net effect of recognition would be that the wife would be entitled to nothing by way of maintenance or matrimonial property and that such a result should offend the conscience of this Court.
Before turning to the case law, it is necessary that I describe the background in more detail to set the context of the arguments.
The husband and wife are both American citizens and domiciled in the United States. None the less, at the initial stages of the husband's divorce proceedings in North Carolina, the wife's attorney challenged the jurisdiction of the Court there. It seems the basis of that challenge was her pre-existing petition in this Court and a further technical procedural point challenging the North Carolina Court's proceeding to hear the petition notwithstanding an extension of time granted to her there to file an answer or defence. That challenge was, however, eventually withdrawn.
Notwithstanding her domicile in North Carolina, the wife is entitled to bring her petition for divorce to this Court, having been ordinarily resident here for the period prescribed by the Law. But that was not always accepted by the husband. His initial response to her petition here was to challenge the jurisdiction of this Court to entertain it, on the ground that she had not been ordinarily resident here for the prescribed period. This Court found against the husband on that point (in proceedings reported at 1994–95 CILR 319) and he appealed. It was during the pendency of his appeal — which he eventually lost (see 1996 CILR 141) – that he filed his petition in the North Carolina Court.
It is central to the wife's argument here that in so doing the husband would have been mindful that the wife would be forced to become engaged in litigation on two fronts at once; here and in North Carolina. And, moreover, that her limited resources – at the time said to be confined to the interim order of maintenance made by this Court of $2,500 per month-would have been obviously inadequate to enable her to defend those proceedings. In other words, by his action the husband placed the wife at risk of the likely injustice, which eventually ensued from the outcome of the foreign proceedings. It is none the less conceded that, as the husband asserts, the wife was otherwise offered every...
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