Family Breakdown in Cayman

What is a Nuptial Agreement? A pre-nuptial agreement is a legal document entered into by each party before marriage that sets out how the couple intends for their assets and debts to be divided between them should they get divorced in the future. It will sometimes also include how the couple may wish to deal with their assets during the marriage. A post-nuptial agreement is essentially the same thing, but is entered into once you are already married.

When a Judge is considering how assets will be split in a divorce, the paramount consideration is the Matrimonial Causes Act (2005 Revision), which states that all the relevant circumstances of the case must be considered. However, in October 2010 the United Kingdom Supreme Court issued a judgment in the landmark case of Radmacher v Granatino [2010] UKSC 42. This judgment, although not legally binding on Cayman Islands’ Courts, is considered to be highly persuasive. Following Radmacher, prenuptial agreements now form part of the considerations for Cayman Courts.

For a nuptial agreement to be legally binding, it must satisfy the legal test set out in Radmacher. Key points include that each party: freely entered into the agreement without undue pressure; obtained independent legal advice prior to entering into the agreement; was informed of the full implications of entering into the pre-nuptial agreement; and there was a full and honest disclosure of both of parties’ assets. The actual agreement must also be validly drafted pursuant to the laws in the jurisdiction where it is to be applied.

A nuptial agreement should also include a review clause, and should be reviewed whenever any significant change in the marriage occurs. For example, the birth of a child or the receipt of a large inheritance by one spouse could drastically change the terms of a pre-nuptial agreement.

FAMILY BREAKDOWN IN THE CAYMAN ISLANDS

The Cayman Islands has a high divorce rate, with 297 divorces in 2019 and 318 in 2020. In 2020 this equates to 4.8 divorces per 1,000 people (with a population of 65,786). Data collated by www. worldpopulationreview.com indicates that by way of comparison there were 2.5 divorces per 1,000 people in the United States and 1.2 divorces per 1,000 people in Jamaica during the same period.

There is growing concern about the costs of family proceedings and the amount of time it can take to resolve matrimonial property and child custody issues. So, although it is a very hard thing to write about, we have decided to give an outline on how to get divorced in the Cayman Islands. We hope that it will then help you focus on the steps you need to take for yourself, your children and your finances.

The Process of Divorce

How to Begin Divorce Proceedings Under the current Matrimonial Causes Act (2005 Revision) a person is entitled to get a divorce in the Cayman Islands if either

MICHAEL ALBERGA SHAUN McCANN

LOUISE DESROSIERS MAGGIE WELLON AMANDA MINTO

LITIGATION - MEDIATION - DISPUTE RESOLUTION - LEGAL DRAFTING AND ADVICE The Travers Thorp Alberga family team are highly experienced in all aspects of matrimonial law including divorce, residence and contact disputes, child and spousal maintenance, removal applications, interim and final financial provision, cross border asset tracing, pre and post nuptial agreements, private client and succession planning, wills, trusts and foundations.

Email: malberga@tta.lawyer Direct: +1 (345) 623 2371 Mobile:+1 (345) 326 4631 Email: smccann@tta.lawyer Direct: +1 (345) 949 0699 Mobile: +1 (345) 516 4911

Email: ld@tta.lawyer Direct: +1 (345) 623 2535 Mobile: +1 (345) 516 2540 Email: mwellon@tta.lawyer Direct: +1 (345) 623 2539 Mobile: +1 (345) 922 0922 Email: aminto@tta.lawyer Direct: +1 (345) 623 2472 Mobile: +1 (345) 516 7611

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of the parties is domiciled in the Islands. A ‘female’ (as the Law states) may also apply for a divorce if she has been ordinarily resident here for at least two years prior to filing for a divorce.

Grounds for Divorce At this time it is not possible to be granted a ‘no fault’ divorce, instead you must prove one of the grounds below:

> Your spouse has committed adultery and you find it intolerable to continue to live with them; > Your spouse has behaved in such a way that you cannot reasonably be expected to live with him or her; > Your spouse has deserted you for a continuous period of two years before you issue proceedings; > You and your spouse have lived apart for at least two years before you issue proceedings, and your spouse consents to the divorce; > You and your spouse have continuously lived apart for five years before the issuing of the proceedings. However, if adultery has occurred, you cannot apply for a divorce unless two years have passed since the marriage date. The exception being if the Court is satisfied that exceptional hardship has been suffered by the petitioner, then the petition may be filed within the two-year period.

What Happens Next There are two documents required to start a divorce:

> A petition that sets out the facts of the marriage and the grounds of the divorce. > A sworn affidavit whereby you state that the petition is true and accurate. You will also need to provide your marriage certificate or a certified copy.

The petition is then filed with the Civil Registry and served on your spouse. Your spouse has 14 days to respond and indicate whether they intend to contest the divorce grounds. If your spouse does not defend the divorce then the Court will approve the petition. Otherwise the case will be listed before a Judge, who will decide whether there are proper grounds for divorce and what the next steps need to be.

Parties must then attend a Court ordered Mediation Information Assessment Meeting (MIAM) following the first hearing unless there are grounds not to do so, such as domestic violence or a previous failed mediation. An application will need to be made if you are claiming an exemption. However, it is important to note that an exemption is not always granted and parties should be prepared to go to mediation. Mediation can cover both finances and your children.

If your case is suitable for mediation a Court ordered mediation process can begin. You will be asked to provide financial disclosure to the mediator by way of a form called a “MIAM3”. The mediation is a free service provided by the Court. However, if you bring an attorney with you (which is often advised, but not mandatory) this will cost you money.

If parties cannot agree on an outcome with the assistance of a mediator, the matter will return to Court. The Judge can then give direction to get the matter ready for a final hearing, where evidence will be heard and a decision made.

If you cannot agree on where the children will live, or how frequently a parent should see them or how the family finances should be divided, then a Judge will decide for you. Judges will always encourage agreement where possible as attorneys are well aware that enforced settlements can leave both parties feeling like they lacked control over the outcome.

Only once financial matters and any issues regarding children are resolved, a decree of dissolution of the marriage will be granted. This final step in the process is dealt with administratively through the Civil Registry and no further appearance in Court is necessary.

Court Orders This is not an exhaustive list, but the Judge doesn’t just dissolve the marriage, they can also make decisions about:

1) The residence, care and control of the children of a marriage. This can include where the children should live and how they should spend time with either parent; 2) The use of a matrimonial home; 3) Periodic payments to be made by one party to another pending suit; 4) An injunction for the protection of settled and other property in which either spouse claims an interest; 5) The protection of one spouse from interference by the other; 6) The disposition of matrimonial property, including the matrimonial home; 7) Varying any settlement of the property of the spouses made in consideration of the marriage, whether such settlement was made before or upon the treaty of the said marriage; 8) Varying any other settlement of matrimonial property; 9) Making financial provision from the property of either spouse for the children of the marriage and for the other spouse; 10) Providing for periodic payments to be made by either spouse for the benefit of the children of the marriage and for the other spouse; and 11) Who pays what legal costs.

International Divorces A person can get a divorce if they have been domiciled in the Cayman Islands. However, extra care is needed where the case has an international element to it as a divorce could possibly be started in more than one country, but the financial outcomes might be significantly different in different places. Getting legal, tax and immigration advice early on would be prudent. See a list of lawyers who can help on page 120.

Child Arrangements Each case is different, and the welfare of the child(ren) is the Court’s paramount consideration. Sometimes, due to the living situation and the ages of the children, they may spend more time with one parent, or time may be split equally.

If you want to find out more about the types of application that can be made to the

Court concerning children, a helpful guide can be found here: https://www.judicial. ky/general-public/making-an-applicationunder-the-children-law.

Division of Assets In the context of how your assets are to be divided, outcomes can include what happens to your home, pensions, savings, other assets and debts. Spousal support and child maintenance can include school fees, health insurance premiums and the costs of extracurricular activities. It may also include general costs of living and a wide range of other things. The Court has a starting point of ‘equality’, rather than a strict 50:50 split and such a division is not always appropriate. Ensuring proper financial disclosure and valuing assets correctly should always be undertaken before deciding how to split the finances. When considering how finances should be divided, the Court is guided by a number of factors starting with the welfare and best interests of any children of the marriage, and thereafter to other responsibilities, needs, and then to the actual and potential earning power of each of the parties.

Child or Spousal Maintenance A mediator, attorneys and/or the Court can help you reach an agreement for child or spousal maintenance if you cannot agree with your partner on a reasonable sum to be paid.

If you are unmarried, and the father of your child is not paying maintenance, you can apply under the Affiliation Act for an order that he should pay you maintenance for the child. You should apply either within 12 months of the birth of the child or when the father stops paying you maintenance. If you are married, and your husband is not supporting you and/or your children, you can apply for an order under the Maintenance Act that he should pay maintenance for you and your children. You can also apply for maintenance for children living with you at the time of your marriage. If you are divorced, or a divorce application is pending, you must apply in the Grand Court.

When considering both child and spousal maintenance, the Court considers needs and will look at both the income needs of the spouse in whose favour the order is made and the income of the spouse who will be required to make the payments.

Any time after the spousal maintenance order has been made the amount payable under the Order can be varied by agreement or application to the Court. This will be especially relevant if the income of the person making payments, or the need of the person receiving payments either increases or decreases. Other circumstances such as cohabitation with a new partner may reduce any maintenance that a person is entitled to.

Domestic & Child Abuse You should seek help immediately if you are in a difficult or dangerous situation. If the situation is dangerous, contact the police who will help you at any time. If

Hampson and Company

Attorneys at Law

GRAHAM HAMPSON

Family

YVONNE MULLEN

Family

SULEKHA TUMMALA

Family / General Practice

KIM McLAUGHLIN

General Practice / Corporate

FAMILY LAW AND GENERAL PRACTICE

We provide advice on all aspects of family law including, divorce, separation, mediation, pre-nuptial and post-nuptial agreements, child-related issues (residency, relocation and maintenance), capital adjustment, spousal maintenance, and domestic violence. We also provide advice on all aspects of general practice including, work permits, residency applications, naturalisation applications, status applications, wills, trusts and estates, and all real estate related matters.

4th Floor, Apollo House East, 87 Mary Street, George Town, P.O. Box 698, Grand Cayman KY1-1107 (Tel): 345 623 7788 • (Email): info@hampsonandco.com • www.hampsonandco.com