The Divorce Dilemma: How it Affects Immigration in Cayman

Divorce For Expats/Work Permit Holders

If expat couples living in Cayman decide to split, the non-working (previously) dependent spouse or civil partner may have no right to stay in Cayman. Residence, based purely on the presence of children, is not allowed by the Immigration (Transition) Act. Children in such circumstances can remain as approved dependents of the parent who holds a valid work permit or government contract and continue to attend full-time education until adulthood (as late as 24 if attending full-time university). However, the formerly dependent parent will likely only be able to remain if they obtain their own work permit (including through the Special Economic Zone regime) or government contract; or alternatively secure residency as a person of independent means. They may be permitted to remain as a visitor but doing so for more than 90 days can present difficulties, and permission to extend their stay is not guaranteed after a total of 182 days of physical presence in any 12-month period.

Former Spouse of a Caymanian

Where the former spouse or civil partner of a Caymanian is the mother/father of a Caymanian child, they may be allowed to remain (subject to various approvals) and be permitted to work until the children complete their tertiary education or their 24th birthday, whichever happens first.

If their last child reaches the age of 24 and the non-Caymanian parent has not obtained appropriate immigration permissions before then, then the parent must leave the Cayman Islands (according to the provisions of the law as presently drafted). However, such a parent will have an opportunity to apply for Permanent Residence pursuant to the points system, provided Cayman has been their home for more than eight years.

Spouses or Civil Partners of Permanent Residents

The dependant spouse or civil partner of a Permanent Resident can apply for their own Permanent Residency and Employment Rights Certificate (RERC) as the spouse/civil partner of a PR holder as soon as their spouse/civil partner is granted Permanent Residence. They do not have to wait the usual eight years of residency, nor take any tests subject to the points system. They are, however, free to apply for Permanent Residence in their own right, (and go through the normal process) if they have been living in Cayman for eight years.

If they hold Permanent Residence and have been naturalised, they are also eligible to apply for the Right to be Caymanian after living in the Cayman Islands for 15 years (or five years following the date of Naturalisation).

Ideally, spouses and civil partners who qualify should consider applying for Permanent Residence in their own right once they have been legally and ordinarily resident for eight years. However, many people just carry on having their Residency and Employment Rights Certificate (RERC) tied to their spouses’ or civil partner’s Permanent Residency since there is no time limit on this grant.

A problem can arise when one of the spouses or civil partners is granted the Right to be Caymanian. At this point, the RERC holder/spouse/civil partner whose Residence is based on marriage or civil partnership to a PR holder must have their immigration status in the Islands ‘regularised’ within 45 days, i.e. they must have their RERC changed to that of the 'Spouse/Civil Partner of a Caymanian'. They may even (if they have been married or in a civil partnership for more than seven years) apply directly for the Right to be Caymanian based on marriage or civil partnership to a Caymanian.

If they fail to apply in time or dissolve the relationship, then as they are no longer married to or in a civil partnership with a Permanent Resident, their certificate becomes void. There will, in effect, be nothing to extend. This has caused a lot of problems for couples/parents who then decide to separate.

One of the requirements in the Immigration Act is truthfully declaring in an affidavit that you have a stable marriage. If you cannot, then there may be no rights remaining for you in the law: your immigration standing may be in limbo and you may not be allowed to stay in the Cayman Islands unless you are granted permission to stay on the Island under other immigration law provisions.

Spouses or Civil Partners of Caymanians

The spouse or civil partner of a Caymanian is not automatically entitled to a work permit or even to reside in the Cayman Islands without applying for permission to do so. Unless they have been granted permission prior to the marriage or civil partnership, which has not yet expired, they must be granted a RERC (Residency & Employment Rights Certificate) based on marriage or civil partnership to a Caymanian. The law has now changed to make such RERCs permanent in nature as long as the relationship remains stable.

After seven years of marriage, the non-Caymanian spouse or civil partner can apply for the Right to be Caymanian. If a Caymanian also happens to be a BOTC (British Overseas Territory Citizen), their spouse or civil partner who holds a RERC can apply for Naturalisation as a BOTC by virtue of a connection with the Cayman Islands in as little as three years of residing here. Anyone resident five years after Naturalisation is eligible to apply for the Right to be Caymanian.

The law also provides that the right of any RERC holder (as the spouse or civil partner of a Caymanian) forfeits the right to live and work in the Islands if the marriage or civil partnership breaks down within ten years of the marriage/civil partnership or if the couple are living apart and legally separated or the Board considers the relationship has otherwise broken down. In this case, WORC can then revoke a RERC. If revoked, then one of the ways the spouse or civil partner holding a RERC can stay on the Island is by being granted a work permit under section 38(7) of the Immigration (Transition) Act, and only for a period of three years (unless the marriage or civil partnership is first formally dissolved).

At the end of the three years, if you have passed your term limit of nine years, then the non-Caymanian spouse or civil partner must apply for Permanent Residence or may have to leave the Islands for one year to reset their term-limit clock. Without an application to the Cabinet, there is little leeway in the law. The only avenue for fighting this is on the grounds of human rights, and that process could be lengthy, costly, and uncertain.

Things to Consider

• The length of time you and your spouse have lived in the Islands and what implication that has on your term limit and applications for Permanent Residency, or the Right to be Caymanian.
• If you qualify, you can seek Permanent Residence in your own right when you have been in Cayman for at least eight years. Further, if your spouse or civil partner is (or has become) a Caymanian, you can apply to be Caymanian when you have been married to, or in a civil partnership with, the person for seven years (whether or not the seven years have been spent in Cayman), subject to cohabitation requirements.
• It is an offence for a PR applicant, whose application is pending, not to inform the authorities immediately of any change in an applicant’s marital or civil partnership status. Persons holding Permanent Residence (other than on the basis of Marriage or Civil Partnership to a Caymanian) are also required to file an annual declaration. It is also an offence punishable by a substantial fine and potential loss of immigration permissions for an RERC holder (other than on the basis of Marriage/Civil Partnership to a Caymanian) and their Dependant Spouse or Civil Partner, not to inform the Director of Workforce, Opportunities and Residency Cayman (WORC) of a change in marital/civil partnership status within six months of any dissolution or breakdown.

Law Firms in the Cayman Islands that specialise in Family Law