Family breakdown in the Cayman Islands is both an emotional and lengthy legal process. If the parents are married, then the process is typically a divorce. If the parents are not married, then the process is a separation. The common causes of divorce or separation are differences in expectations of married or cohabiting life, such as differences in financial expectations or emotional expectations or in some cases a combination of both. Divorces and separations are usually amicable when parties have had the opportunity to process their emotions. If this has not occurred, then unresolved emotions may complicate the processes. – Lisa Donalds, Attorney and founder of Phoenix Legal
The Process of Divorce / Family Separation
If parties to a marriage, civil partnership or relationship are separating, then the first step, if possible, would be to attempt to negotiate the division of property and or proposals for the child or children. If parties agree these terms before engaging a lawyer, then the entire process will be simplified. If parties are not able to agree these terms, then the next step would be to engage a lawyer to assist individual parties to navigate the process and, if necessary, a mediator may help too.
If one cannot afford a lawyer, then legal aid may be available in circumstances of domestic violence or child neglect. If the parties do not qualify for legal aid, then they may seek free legal advice from Legal Befrienders, a programme run by the Family Resource Centre.
To begin divorce proceedings in either marriages or civil partnerships one of the following five grounds must be established first:
Desertion for two years;
Separation for two years with consent; and
Separation for five years without consent.
In the Cayman Islands, unlike other jurisdictions, ‘quickie’ divorces are not available. One of the five grounds listed above must be demonstrated. Quite a few jurisdictions require a period for parties to be separated before they can begin divorce proceedings. In the Cayman Islands, parties relying on the ground of unreasonable behaviour may begin divorce proceedings at any time.
Property and Child(ren) Considerations
Divorce and separation raise issues regarding the division of joint property and, if there are children, the proposals for the upbringing of those children. Child custody, as it is commonly known, does not legally exist in the Cayman Islands anymore. The terms now are parental responsibility, residence and contact orders. Parental responsibility is the right to raise a child in the manner which a parent chooses. Residence orders regulate with whom a child lives, and contact orders determine with whom a child may visit.
The Cayman Islands favours shared residence orders for parents as it is viewed as providing the most stability for a child, since the child has both parents actively involved in his/her life.
Mediation is a form of alternative dispute resolution. The benefit of mediation is that parties hear the other parties’ perspective without the expense and potential stress of litigation. Mediation is led by a mediator who guides the parties through the process to enable each party’s opinion to be heard. The Cayman Islands has introduced court mandated mediation. These sessions are booked in three-hour intervals, but multiple sessions may be scheduled. Court mandated mediation is free but typically people will engage lawyers to assist with the process. Mediation outside of the court mandated process must be paid for privately.
Costs & Timelines
An amicable (non-contentious) divorce may cost between CI$2,000-CI$5,000 in legal fees. The cost of a non-amicable divorce varies as it depends what and how long the parties choose to fight. Alternatively, an amicable separation may even be free if parties draw up their own legal agreements. A non-amicable separation is like a non-amicable divorce as it depends how long the parties choose to fight. Court mandated mediation is free but typically parties engage lawyers to assist. If parties choose to mediate outside of court, then parties would have to pay the mediator’s fees.
Domestic & Child Abuse
If there are concerns of domestic violence and or child abuse during a divorce/separation these issues may be dealt with using other legal channels. The first avenue would be to make a police report, thereupon claims will be thoroughly investigated.
If domestic violence is the issue, then this may be dealt with in the civil and or the criminal courts. In the civil courts, the applicant may seek any of these orders:
A Protection Order: This primarily stipulates that the perpetrator stay away from the applicant.
An Occupation Order: This prevents the perpetrator from residing with the applicant.
A Tenancy Order: This requires the perpetrator to pay the lease or the rent of the applicant if the applicant financially relied on the perpetrator.
These orders were created to protect the applicant psychically and financially.
Divorce Proceedings for Caymanians vs. Expats
The Cayman Islands is a multicultural jurisdiction. Therefore, we have marriages and civil partnerships between two Caymanian parties, marriages and civil partnerships where one party is Caymanian, and the other party is not and marriages and civil partnerships where both parties are expatriates. These three different types of marriages and civil partnerships do raise different implications for divorce and separation, from an immigration point of view. The immigration questions that arise are how the parties became Caymanian and the length of time the parties may have held Caymanian status. Presently, parties to marriages and civil partnerships that have held Caymanian status for less than three years will lose their Caymanian status upon a divorce.
Two expatriates who wish to separate need to consider the rules of the jurisdiction in which they were married, and understand that if they wish to divorce in Cayman, they must follow local rules in regard to length and or quality of residency on island and or length of legal separation, before filing for divorce.
If a parent desires to move to another jurisdiction with a child and the other parent disagrees then permission from the court would need to be obtained. This type of application is called a relocation application.
If a parent removes the child from the jurisdiction without permission of the other parent, then this would be considered a breach of the 'Hague Convention on the Civil Aspects of International Child Abduction'. This convention attempts to prevent a parent from seeking a more sympathetic court or jurisdiction to adjudicate with whom the child lives with. The Convention preserves the initial habitual residence of the child even if the child is taken to another jurisdiction. This preservation means that the second contracting jurisdiction would refuse to hear the case. This convention is only relevant in contracting states. It would not apply to jurisdictions which are not signatories. If a child is taken to a non-contracting jurisdiction then other channels of reunification would need to be employed.
About the Author – Lisa Donalds
Lisa Donalds founded the firm Phoenix Legal in 2019 with the mission of providing accessible legal advice to the community. She obtained her legal experience by working with other offshore magic circle firms and the Portfolio of Legal Affairs. She is an experienced family law specialist with a broad range of experience.