The Cayman Islands is home to many ex-pats who have lived here for several years but are often unsure whether they can divorce here or whether they must divorce in their home country. We also have many clients who are unsure whether they can divorce on ‘irreconcilable differences’ in the Caymans Islands.
We discuss below the questions which often arise when clients are thinking about divorce.
Can you issue a divorce petition in the Cayman Islands?
A spouse can file a petition for divorce provided that either spouse has been domiciled in the Cayman Islands within the preceding year or if the party filing the petition is female if she has been ordinarily resident here for at least two years.
What does ‘domicile’ mean?
Domicile is an unusual legal concept. It refers to the place where you will live forever – your ‘ultimate home’. Your domicile of origin at birth is inherited from your father and this will continue until you acquire a domicile of choice.
Is the location of your marriage relevant?
It does not matter where you married so long as the marriage was recognised as a legal marriage in that country. You will need the original or a certified copy of your marriage certificate when you issue a divorce petition.
On what basis can you issue a divorce petition in the Cayman Islands?
The Person filing the petition is known as the ‘Petitioner’ and the spouse responding to the petition is known as the ‘Respondent’.
The Petitioner must file a divorce petition on one of the following grounds:
(a) The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
(b) The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
(c) The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition;
(d) The Parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to the decree being pronounced; or
(e) The Parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Contrary to popular belief, you cannot divorce in the Cayman Islands on the basis of irreconcilable differences. Our family practitioners have been involved in consultations about the possible introduction of no-fault divorce to the Cayman Islands. We remain firmly of the view that it would assist parties to minimize acrimony from the outset if they do not have to ‘blame’ the other for the breakdown of the marriage. However, at the time of writing, no-fault divorce has not been passed in law in the Cayman Islands.
Will your spouse receive less if you issue on his or her adultery?
The basis of the divorce in the majority of divorces will not have any impact on the financial outcome. In some cases, the conduct of one spouse may be such that it can impact on the financial outcome (i.e. one spouse receives less due to his or her conduct). Conduct cases are very rare. It requires the conduct to be gross and obvious and of such a nature that it would be inequitable for the Court to disregard.
How do you commence a divorce in the Cayman Islands?
The Petitioner will fill in a divorce petition setting out the ground on which the divorce is based. This document is then filed at Court.
Once filed, the documents are personally served upon the Respondent (or on the Respondent’s attorney if he/she has one and agrees to service through the attorney). The Respondent has 14 days from the date of service to respond and indicate whether he or she plans to defend the divorce.
In the majority of cases, the Acknowledgment of Service is returned by the Respondent indicating that there is no intention to defend, and the divorce can proceed. If, however, the Respondent does intend to defend the case, then he or she must file and serve an answer to the Petitioner’s petition and a cross-petition of their own within the same 14-day period.
The Petitioner would then file an answer to the Respondent’s cross-petition.
A hearing date would need to be set for the Judge to decide the outcome or the parties would need to agree under which of the five statutory bases for divorce set out above the divorce can proceed.
Can you settle your divorce outside Court?
Once the Petition has been proved, the arrangements for the children (if applicable) and the division of finances can be explored by way of ‘without prejudice’ correspondence between the parties and/or their attorneys. This may include requests for disclosure by either party so that they can ascertain the other party’s position in respect of any children and finances.
Since January 2020, mediation has been a compulsory step in the divorce process. Parties are encouraged to try to agree the outstanding issues through a court-appointed mediator. The parties can have their lawyers attend mediation and/or help them in the background to try to reach a settlement.
If settlement can be achieved, a final agreement (a consent order) is prepared, signed by both parties and their respective attorneys, and filed at Court together with an application seeking a decree of dissolution of the marriage.
Once the decree of dissolution of marriage is sealed and returned from the Court, this signals the end of proceedings. The consent order will then be a legally binding order and enforceable against the parties.
What if you cannot settle your divorce outside Court?
In the event parties are unable to agree, via mediation or any other out of court process, then the Court will timetable the same to a final hearing. The parties will need to exchange financial disclosure, file evidence and the matter will be listed for a final hearing. The Judge will then decide the outcome.
There is always an opportunity during the Court proceedings to settle matters.
Immigration issues
Immigration issues permeate almost every divorce in the Cayman Islands. The Immigration Act is constantly evolving, and McGrath Tonner can offer advice on what can sometimes be one of the most difficult issues for a separating couple. We provide immigration advice in the context of divorce proceedings and regularly advise our clients as to how separation and divorce can impact upon an individual’s immigration status and their right to reside in the Cayman Islands.
Conclusion
McGrath Tonner is the leading family law firm in the Cayman Islands. Our attorneys possess significant experience in all areas of family law.
The first step in the process is to arrange an initial consultation with one of our highly qualified and experienced family law attorneys who can assist in allaying any worries and concerns and in reducing complex issues to practical and understandable solutions with the aim of achieving the best possible outcomes and ensuring that our clients’ interests are paramount.
Greg Burke, Attorney, gburke@mcgrathtonner.com
Tel:(345) 949 2740
