Wheeler v Wheeler

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Collett, JJ.A.)
• Judgment Date: 01 January 1996
• Court: Court of Appeal (Cayman Islands)
• Date: 01 January 1996

Court of Appeal

(Zacca, P., Georges and Collett, JJ.A.)

WHEELER

and

WHEELER

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

W.J. Helfrecht for the respondent.

Cases cited:

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

(2) -Inland Rev. Commrs. v. Lysaght, [1928] A.C. 234.

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

(4) -Macrae v. Macrae, [1949] P. 397; [1949] 2 All E.R. 34, dicta of Somervell, L.J. applied.

(5) -R. v. Barnet London Borough Council, ex p._Shah, [1982] Q.B. 688; [1982] 1 All E.R. 698; on appeal, [1983] 2 A.C. 309; [1983] 1 All E.R. 226, followed.

(6) -Stransky v. Stransky, [1954] P. 428; [1954] 2 All E.R. 536, followed.

Legislation construed:

Matrimonial Causes Law (Law 9 of 1976), s.2(1): The relevant terms of this sub-section are set out at page 144, lines 30–31.

s.5: The relevant terms of this section are set out at page 143, lines 12–17.

Family Law-divorce-jurisdiction-‘ordinary residence’ of wife under Matrimonial Causes Law, s.5 is habitual and normal residence within jurisdiction combined with voluntary presence and settled purpose-continuity of residence not interrupted by temporary and occasional absences-ordinary residence may be maintained in two jurisdictions at once

The appellant husband sought the striking out of his wife”s petition for divorce and her application for ancillary relief in the Grand Court.

The parties were American citizens who had married in 1990 and had since then divided their time, according to the demands of the husband”s business activities, between a property in Grand Cayman owned by the husband”s company and successive residences in the United States, most recently a house in North Carolina which they built in 1993.

Although the parties had, during their marriage, spent increasingly longer and more frequent periods in the United States than in the Cayman Islands, the wife regarded their Cayman residence, which was kept ready for their occupation at all times, as their home, in which they planned to spend their retirement.

The husband”s submission that the court had no jurisdiction to hear the wife”s petition because she had not been ‘ordinarily resident in the [Cayman] Islands for at least two years’ as required by the Matrimonial Causes Law, s.5 was rejected by the Grand Court (Smellie, J.) which held that a petitioner could be ordinarily resident, in the sense given to that phrase by English law according to s.2 of the Law, in two jurisdictions at once and that the wife had therefore been resident in the Cayman Islands for the necessary period of time. The Grand Court proceedings are reported at 1994–95 CILR 319.

On appeal, the husband submitted that (a) since his wife had spent more time outside Grand Cayman than in it during the two years preceding the filing of her petition, she had failed to prove that she was normally and habitually resident here for the purpose of giving jurisdiction to the court under the Matrimonial Causes Law, s.5; and (b) the natural meaning of ‘ordinary residence’ under English law had not been extended by the construction placed on the word ‘reside’ in the context of applying certain legislation, to allow a petitioner to claim residence in two jurisdictions at once; the respondent”s absences from the jurisdiction, being neither temporary nor occasional, instead operated to

break the continuity of the two-year period of residence which she sought to establish.

The wife submitted in reply that (a) proof of ‘ordinary residence’ was dependent not only on the amount of time she spent in the jurisdiction relative to periods of residence in another place, but on her intentions towards the place in which she claimed ordinarily to reside; accordingly, since she had demonstrated that both parties regarded the Grand Cayman property as their Cayman Islands home throughout their marriage and intended always to return to it, she was ‘ordinarily resident’ in the Islands within the meaning of s.5 of the Matrimonial Causes Law; and (b) having established residence in Grand Cayman in the ordinary course of her life, her absences from the jurisdiction, which were necessary in order for her to be with her husband, did not break the continuity of such residence, or preclude her maintaining ordinary residence in another jurisdiction at the same time.

Held, dismissing the appeal:

(1) On the facts, the respondent had shown that her husband”s property in Grand Cayman was regarded as a normal and habitual residence to which the parties had had the intention to return at all times during their marriage. She could therefore properly be described as ‘ordinarily resident’ in the Cayman Islands for the purpose of compliance with the Matrimonial Causes Law, s.5, notwithstanding that she had spent a lesser proportion of her time here than in the United States in the two years preceding the filing of her petition (page 145, line 38 – page 146, line 6).

(2) Ordinary residence could be maintained in more than one jurisdiction if an intention to reside in each place in the ordinary course of life were shown, and its continuity was not broken by temporary and occasional periods of absence from one jurisdiction. In the present case the parties intended to divide their time between the Cayman Islands and the United States. Accordingly, the court had jurisdiction to hear the wife”s petition, and the appeal would be dismissed (page 148, lines 9–11; lines 37–40).

GEORGES, J.A., delivering the judgment of the court: Section 5 of
10	the Matrimonial Causes Law, 1976 (‘the Law’) vests in the Grand Court
the jurisdiction to entertain a suit arising out of the 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;
15	or 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.’
The respondent in this appeal (Mrs. Wheeler) filed a petition for divorce
and related ancillary remedies against her husband the appellant (Mr.
20	Wheeler) on January 12th, 1995. On being served with the petition, Mr.
Wheeler filed a summons seeking leave to enter conditional appearance
and asked that the petition be struck out on the basis that neither party was
domiciled in the Cayman Islands and that Mrs. Wheeler had not been
resident in the Cayman Islands for a period of at least two years
25	immediately preceding the presentation of the petition. Smellie, J. held
that Mrs. Wheeler had met the requirements of being ‘ordinarily resident’
for the period prescribed in the Law and that the court had jurisdiction to
entertain the petition. From

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