Wheeler v Wheeler

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 29 July 1997
• Court: Grand Court (Cayman Islands)
• Date: 29 July 1997

Grand Court

(Smellie, J.)

WHEELER

and

WHEELER

R.D. Alberga, Q.C. and S.T. McCann for the applicant;

P. Lamontagne, Q.C. and W.L. DaCosta for the respondent.

Cases cited:

(1) Chaudhary v. Chaudhary, [1985] Fam. 19; [1984] 3 All E.R. 1017, considered.

(2) Egerton v. Brownlow (Earl)(1853), 4 H.L. Cas. 1; 10 E.R. 359; [1843-60] All E.R. Rep. 971, dicta of Lord Truro applied.

(3) F v. F, 1992-93 CILR 16, applied.

(4) Gray v. FormosaELR, [1963] P. 259; sub nom. Formosa v. Formosa, [1962] 3 All E.R. 419, considered.

(5) Hewitson v. Hewitson, [1995] Fam. 100; [1995] 1 All E.R. 472; [1995] 1 FLR 241, considered.

(6) Indyka v. Indyka, [1969] 1 A.C. 33; [1967] 2 All E.R. 689.

(7) Ingersoll-Rand v. Banco Portugues do Atlantico, 1988-89 CILR 189, dicta of Collett, C.J. applied.

(8) Joyce v. Joyce, [1979] Fam. 93; [1979] 2 All E.R. 156, followed.

(9) Kendall v. Kendall, [1977] Fam. 208; [1977] 3 All E.R. 471, considered.

(10) Kilderkin Invs. v. Player, 1984-85 CILR 63, distinguished.

(11) Levett v. Levett, [1957] P. 156; [1957] 1 All E.R. 720.

(12) McCallister v. Tortuga Club (No. 2), 1984-85 CILR 411, observations of Summerfield, C.J. applied.

(13) Newmarch v. Newmarch, [1978] Fam. 79; [1978] 1 All E.R. 1, considered.

(14) Quazi v. Quazi, [1980] A.C. 744; (1978), 8 Fam. Law 203; on appeal, [1980] A.C. 744; [1979] 3 All E.R. 424; on further appeal, [1980] A.C. 744; [1979] 3 All E.R. 897, dicta of Wood J. and Lord Scarman applied.

(15) Qureshi v. Qureshi, [1972] Fam. 173; [1971] 1 All E.R. 325, distinguished.

(16) Russell v. Russell, [1957] P. 375; [1957] 1 All E.R. 929.

(17) S Trust, In re, 1990-91 CILR N-24, considered.

(18) Tahir v. Tahir, 1993 S.L.T. 194, considered.

(19) Torok v. Torok, [1973] 1 W.L.R. 1066; [1973] 3 All E.R. 101.

(20) Tower Corp. Ltd. v. Hadsphaltic Intl. Ltd., 1986-87 CILR 40.

(21) Wood v. Wood, [1957] P. 254; [1957] 2 All E.R. 14, distinguished.

Legislation construed:

Grand Court Law (1995 Revision) (Law 8 of 1975, revised 1995), s.11(1): The relevant terms of this sub-section are set out at page 374, lines 9–19.

s.15: The relevant terms of this section are set out at page 374, lines 40–42.

Matrimonial Causes Law (Law 9 of 1976), s.3: The relevant terms of this section are set out at page 374, lines 23–32.

s.5: ‘The Court has jurisdiction to entertain a suit arising out of this Law where at the time of filing suit…the party filing suit, being a female, has been ordinarily resident in the Islands for at least two years immediately preceding the presentation of the petition.’

s.7: The relevant terms of this section are set out at page 367, line 34 – page 368, line 31.

s.19(c): The relevant terms of this paragraph are set out at page 382, lines 11–15.

Matrimonial and Family Proceedings Act 1984 (c.42), s.12(1): The relevant terms of this sub-section are set out at page 373, lines 17–25.

Conflict of Laws-divorce-recognition of foreign divorce-public policy-court may refuse recognition solely because of financial injustice to wife-no need of deception by husband in obtaining divorce-harshness of foreign ancillary relief laws, husband”s reluctance to disclose assets and inadequacy of wife”s legal advice relevant factors

Family Law-financial provision-foreign divorce-court may not order financial provision pursuant to foreign divorce-powers of English High Court to do so under Matrimonial and Family Proceedings Act, 1984, s.12(1) not imported into Cayman law by Grand Court Law, s.11(1) or Matrimonial Causes Law, s.3

Family Law-financial provision-financial provision pending suit-under Matrimonial Causes Law, s.19(c) interim maintenance order by Grand Court discharged with petition-no power to order financial provision once petition struck out following court”s recognition of foreign divorce

Family Law-divorce-cross-petition-husband not domiciled in Cayman Islands may cross-petition in suit properly begun by wife under Matrimonial Causes Law, s.5

The applicant applied for an order recognizing his divorce in the United States from his wife, the respondent, and for the dismissal of his wife”s petition in the Grand Court.

The wife, a foreign national ordinarily resident in the Cayman Islands, petitioned for divorce and obtained an interim maintenance order. Having failed successfully to challenge the court”s jurisdiction to hear the petition

(in proceedings reported at 1996 CILR 141), the husband himself filed a petition for divorce in North Carolina, where the parties were domiciled. Although the wife was represented in those proceedings, she had only limited means to defend the petition.

She received legal advice that any order in her favour for financial provision made by the North Carolina court would not be generous because of the lack of property available for redistribution under the law there, and the difficulty of proving the existence of her husband”s Cayman assets. Upon incorrect advice that the Grand Court had jurisdiction to make financial provision pursuant to a foreign divorce, she made no application for ancillary relief to the North Carolina court.

The husband”s petition was granted and the North Carolina proceedings were discontinued upon his application. He later applied to re-open those proceedings to allow his wife the opportunity to apply for the redistribution of matrimonial property, in response to her claims in the Cayman proceedings that he had acted unfairly, but she declined to make an application, since her right to apply for maintenance had been lost.

The husband now applied to the Grand Court as a US national domiciled in North Carolina for the recognition of his divorce under the Matrimonial Causes Law, s.7(1).

He submitted that (a) since both he and his wife were domiciled in North Carolina at the time of his petition and since she had had notice and ample opportunity to take part in the proceedings there, the Grand Court had no discretion under s.7(1) of the Matrimonial Causes Law to refuse to recognize the decree of the North Carolina court as a court of competent jurisdiction; (b) nor had the Grand Court any residual discretion to refuse recognition on grounds of public policy, in the absence of any deception on his part in relation to the North Carolina proceedings, merely because of the serious financial consequences of recognition for his wife, particularly since she had chosen not to apply for ancillary relief there as part of a strategy to obtain more favourable treatment in the Grand Court; (c) the court had no jurisdiction to make orders for financial provision pursuant to a foreign divorce decree since its powers were limited by s.15 of the Grand Court Law (1995 Revision) to ordering ancillary relief pursuant to a decree granted under the Matrimonial Causes Law; (d) moreover, since the wife”s divorce petition would be struck out if the court recognized the North Carolina divorce, her interim maintenance order would expire, in accordance with s.19(c) of the Matrimonial Causes Law and the court would be able to make no further orders for financial provision; and (e) if the court refused to recognize the North Carolina divorce and his wife”s petition proceeded, injustice would result, since he would be prevented, as a husband domiciled abroad, from cross-petitioning the court-the very reason for his application to the North Carolina court.

The wife submitted in reply that (a) the Grand Court should refuse to recognize the North Carolina divorce on public policy grounds under the

Matrimonial Causes Law, s.7(1), since her husband”s petition there had been designed to deprive her of her right to financial provision under Cayman law and to force her into expensive litigation in two jurisdictions at the same time-and the net effect of recognition would be that she would receive nothing; (b) in considering its discretion to grant recognition, the court should have regard to the harshness of North Carolina law in respect of the distribution of matrimonial property, her husband”s reluctance to disclose his assets and the fact that she was a victim of incorrect legal advice; (c) even if the court were to recognize the divorce, it had the power to make an order for financial provision under s.12(1) of the English Matrimonial and Family Proceedings Act 1984, which applied in the Cayman Islands by virtue of s.11(1) of the Grand Court Law (1995 Revision) and s,3 of the Matrimonial Causes Law; (d) accordingly the interim maintenance order should be stayed pending the making of an order for appropriate financial provision in her favour; and (e) her husband would suffer no prejudice in the Cayman proceedings if the court refused to recognize the North Carolina divorce, since he would be allowed to cross-petition in her own proceedings brought as a wife ordinarily resident in the Islands.

Held, dismissing the husband”s application:

(1) The Grand Court would refuse to recognize the North Carolina divorce under the Matrimonial Causes Law, s.7(1) on the sole ground that recognition would be contrary to public policy because of its adverse financial effect on the wife. For the court to exercise its discretion in her favour, it was not necessary to find that the husband had exercised deception in obtaining the foreign divorce (page 379, lines 1–10).

(2) The court would, in this case, take into account (a) the harshness of the laws of the foreign court, which would have afforded the wife very little in the way of financial provision and which had denied her the opportunity to apply for maintenance after the ancillary proceedings were discontinued; (b) the husband”s reluctance to reveal his assets; and (c) the prohibitive cost of participating in those proceedings (which was so great that the wife might well have lost money even if she had obtained a redistribution of the matrimonial property). Whatever the court”s view of the wife”s failed legal strategy, the husband”s opportunism had been...