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
If parties to a marriage 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 one of the following five grounds must be established first:
• Unreasonable behaviour;
• 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 grounds of unreasonable behaviour may begin divorce proceedings at any time.
Property and Custody 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 and residence 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.
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 or 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.
An amicable (non-contentious) divorce may cost between CI$2,000-CI$5,000. The cost of a non-amicable divorce varies as it depends what and how long the parties choose to fight.
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 what and 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.
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 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.
The Cayman Islands is a multicultural jurisdiction. Therefore we have marriages between two Caymanian parties, marriages where one party is Caymanian, and the other party is not and marriages where both parties are expatriates. These three different types of marriages do raises 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 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 of residency on island and length of legal separation, before filing for divorce. For more information please see the next article.
If a parent desires to move 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 child custody. The initial habitual residence of the child is preserved 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.
How do I initiate divorce proceedings?
Firstly, engage a lawyer. Proceedings then begin by petition and a verifying affidavit. A petition sets out the facts of the marriage and the ground of the divorce. A verifying affidavit requires the person to swear the truth of the contents of the petition.
As an expat should I use a local lawyer or an international divorce lawyer?
A male expat who is domiciled here or a female expat who is ordinarily resident here for more than two years may seek a local divorce lawyer.
Can I take my children on holiday off-Island once I am divorced?
Yes, you may take you children off-island with permission from the other parent for up to 28 days.
Find out more about the immigration implications for expats getting divorced in the Cayman Islands.
About the Author
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.
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