The Cayman Islands has a high divorce rate, with 316 in 2018 and 297 in 2019. 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.
On This Page
The Process of Divorce
How to Begin Divorce Proceedings
Under the current Matrimonial Causes Law (2005 Revision) a person is entitled to get a divorce in the Cayman Islands if either 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 2 years before you issue proceedings;
- You and your spouse have lived apart for at least 2 years before you issue proceedings, and your spouse consents to the divorce;
- You and your spouse have continuously lived apart for 5 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 celebration of the marriage. 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 which 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 matters relating to 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.
This is not an exhaustive list, but the Judge doesn’t just dissolve the marriage, they can also make decisions about:
- 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;
- The use of a matrimonial home;
- Periodic payments to be made by one party to another pending suit;
- An injunction for the protection of settled and other property in which either spouse claims an interest;
- The protection of one spouse from interference by the other;
- The disposition of matrimonial property, including the matrimonial home;
- 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;
- Varying any other settlement of matrimonial property;
- Making financial provision from the property of either spouse for the children of the marriage and for the other spouse;
- 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
- Who pays what legal costs.
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 175.
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-application-under-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 Law 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 Law 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 you do not feel it is appropriate to call the police, the Crisis Intervention Centre provides a helpline 24/7 (Tel: (345) 943 2422) and a walk-in service for crisis intervention and the assessment of victims of family violence. They will ensure that appropriate referrals will be made to the various community resource options, and that emotional support and guidance is given to victims through various stages. This service is available by telephone and online and details can be found here: www.dcs.gov.ky/frc/family-resource-centre-crisis-intervention. The Court can make an order on application to protect you, your children and other connected persons and in serious situations your spouse does not necessarily need to have notice of your application until the Court order giving you the protection you seek is in place.
Legal costs are very difficult to estimate and can depend on the level of agreement between the parties. A completely amicable (non-contentious) divorce may cost between CI$2,000-CI$5,000. The cost of a non-amicable divorce varies and will be much higher.
Court mandated mediation is free but typically parties engage lawyers to assist. Legal aid is generally not available for civil proceedings. However, it may sometimes be available for proceedings under the Children Law started by the DCFS. In divorce cases, the Honourable Chief Justice has directed that legal aid will only be granted where there are allegations of recent domestic violence or children are at risk.
Travelling With Children
Following a divorce or separation you must get permission from the parent with responsibility for a child, or from a court, before taking the child abroad. It is also prudent to specify in any court order or divorce agreement what is intended for future travel abroad. Is it allowed, or is it restricted? Even if permission is given in your final court order, you should still obtain a letter which demonstrates that you have permission to take the child abroad. Even if travel arrangements are agreed between you and the other parent, you might still be asked for a letter at a border. The letter should include the other person’s contact details and details about the trip.
It also helps if you travel with the child’s birth or adoption certificate, especially if you are a single parent and your family name is different from your child’s name.
The following law firms can advise on divorce and family law.
HSM offers experience and expertise in Family Law. They can help clients navigate divorce and financial arrangements as well as advise on pre-nuptial and separation agreements, family trusts and more.
McGrath Tonner advises on all aspects of family law including relationship breakdown, financial implications and child arrangements. They also advise on pre and post nuptial agreements.
Travers Thorp Alberga
Travers Thorp Alberga’s matrimonial department provides advice on family law including divorce, financial provision, child custody and cross border asset tracing.
Campbells acts for high net worth clients in relation to family law matters including cohabitation agreements, pre and post nuptial agreements, proceedings relating to children and financial issues.