“The end of a relationship brings with it emotional and financial challenges, particularly for those families who may have close connections to more than one country. No matter the reason for the breakdown of the relationship, a constructive and dispute resolution based approach is often the best way to resolve arrangements without a huge emotional and financial cost to all those involved. When agreements are not possible, the court process will help to achieve finality, though it is necessary to think creatively and adopt a clear strategy at all times in order to achieve the best outcome possible.” – Amanda Minto, Counsel at Travers Thorp Alberga
The Process of Divorce / Family Separation
If parties to a marriage, civil partnership or relationship are separating, the first step is to attempt to negotiate the division of property and/or proposals for the children of the family. If parties can agree on these terms before engaging a lawyer, the entire process will be simplified. If agreement cannot be reached, each party may approach a lawyer to assist with navigating the process and, if necessary, enlist the help of a mediator.
Legal aid may be available for parties who cannot afford a lawyer where domestic violence or child neglect arises. 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.
In the Cayman Islands, a ‘no fault’ divorce is not available. To begin divorce proceedings in relation to marriages or civil partnerships, one of the following five grounds must be established: adultery; unreasonable behaviour; desertion for two years; separation for two years with consent; or separation for five years without consent. A party can file for divorce if he/she has been domiciled in the Cayman Islands within the preceding year or, if the person who is applying for a divorce is female, she has been ordinarily resident in Cayman for the past two years. Domicile is an unusual legal concept and legal advice should ordinarily be sought, particularly for international families who may be said to have more than one home. Disputes can sometimes arise as to which country is the more convenient to handle divorce and associated matters.
Property and Children Considerations
Divorce and separation raise issues regarding the division of property (jointly or in the sole name of one party) and the practical and financial upbringing of any children of the family. Child arrangements consider issues around ‘residence’ and ‘contact’. Residence orders regulate with whom a child will live and contact orders determine with whom a child may visit, at what frequency and for what duration. Shared residence orders can often be viewed as providing stability for a child, since the child has both parents actively involved in his/her life. Whether a court order is actually necessary must be considered at all times; if arrangements are not contested then the practicalities can be set out in a written parenting agreement.
Mediation
Mediation is a form of alternative dispute resolution which avoids the expense and potential stress of litigation. Mediation is also court mandated as a necessary first step before financial proceedings can be progressed. Mediation is led by a qualified mediator who guides the parties through the process to enable each party’s opinion to be heard. These sessions are booked in three-hour intervals, but multiple sessions may be scheduled. Court-mandated mediation is free, but typically parties 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 or only the prescribed court fees if parties are able to draw up their own legal agreements. The cost of a contentious (or non-amicable) divorce or separation varies as it depends on what issues and for how long the parties remain in dispute. It is also possible to engage in out-of-court dispute resolution with a third party lawyer engaged to act as ‘judge’ to assist parties in reaching agreements – known as the ‘financial dispute resolution’ process - this outcome-focused approach typically has a high success rate even where issues are in dispute between the parties. Any form of dispute resolution will typically result in far lower legal fees and court costs than a matter which remains fully contested.
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, which may be applied for on an urgent basis. The first avenue would be to make a police report, thereupon claims will be thoroughly investigated. If domestic violence is an 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, which were created to protect the applicant physically and financially:
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.
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. Each scenario raises different implications for divorce/separation from an immigration perspective and often requires specialist advice. 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.
Relocation
If following a divorce or separation one parent desires to move to another jurisdiction with the children (whether to a place of choice or to return to their country of origin) if the other parent disagrees then permission from the court must be obtained before that child can be removed from the Islands. This is known as a relocation application. The overarching principle is that the child’s welfare is paramount, though in making a decision the court will consider a particular set of key factors as set out in current case law. Relocation cases are often emotionally fraught and legally complex. Specialist legal advice should be sought at the earliest opportunity.
If one parent removes a child from the Cayman Islands without the permission of the other parent or the court, then this typically raises questions of child abduction and will engage what is known as the ‘Hague Convention’. Emergency orders can be sought for the return of the child pending the final decision of the court, which prevents a parent from seeking to remove a child to adjudicate matters in a perceived ‘sympathetic’ jurisdiction, or to achieve a fait accompli by moving the child with the intention to establish a new status quo.
About the Author – Amanda Minto
Amanda Minto (Senior Counsel/Associate at Nelsons) is a highly experienced family law and private client litigator called to the Bar of England and Wales in 2009 and the Cayman Islands in 2021. Before relocating to Cayman, Amanda practised as a barrister specialising in divorce and ancillary financial matters. She is ranked as a ‘Tier 1 Leading Junior’ in the Legal 500 and is described as a “formidable advocate”. Amanda continues to practise as a family law specialist in the Cayman Islands dealing with pre and post-nuptial agreements, divorce and ancillary financial matters in addition to the practical and financial arrangements for children.
