The Cayman Islands has a high divorce rate, with 297 divorces in 2019
and 318 in 2020. In 2020 this equates to 4.8 divorces per 1,000 people
(with a population of 65,786). Data collated by
www.worldpopulationreview.com indicates that by way of comparison there
were 2.5 divorces per 1,000 people in the United States and 1.2 divorces
per 1,000 people in Jamaica during the same period.
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 Act (2005 Revision), a person is entitled to apply for a divorce in the Cayman Islands if either of the parties is domiciled in the Islands or, in the case of a female, if she has been ordinarily resident here for at least two years prior to filing for a divorce. ‘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, which may have tax or other financial implications
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 if they are resident in the Cayman Islands (or 28 days if they are resident overseas) to indicate whether they intend to contest the grounds for divorce. If your spouse does not indicate an intention to defend the divorce, then the court will prove the petition and the matter will proceed on an undefended basis. If your spouse does wish to defend, then 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.
Once the mediation process has commenced, you will be asked to provide full financial disclosure to the mediator and your spouse in a form called the “MIAM3”. 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 directions to prepare the matter for a final hearing, where evidence will be heard, and a judge will decide for you. Judges will always encourage agreement, where possible, as enforced settlements can leave both parties feeling disempowered.
Only once financial matters and any issues regarding children are resolved can a decree of dissolution of the marriage 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 and who should occupy it;
- Maintenance to be made by one party to another, either for the spouse’s benefit, or that of any children of the family, or both;
- Injunctions in respect of property;
- The protection of one spouse from interference by the other;
- The division of matrimonial property, including the matrimonial home;
- Varying any settlements of matrimonial or other property;
- Making financial provision from the property of either spouse for the children of the marriage and for the other spouse;
- Decisions as to who should pay the legal costs of proceedings.
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, from a lawyer, early on, would be prudent.
Each case is different and the welfare of children 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 considering how your family assets are to be divided, decisions will need to be made as to what happens to your home, pensions, savings, other assets and debts. Spousal support may be required to assist one party with meeting their income needs and child maintenance can be ordered to assist with the costs of providing for a child, in addition to specific payments for school fees, health insurance premiums and the cost of extracurricular activities.
Matrimonial and jointly held assets may often be divided equally, but this is not an appropriate division in every case. The overall objective of the court is to achieve ‘fairness’ and to place both parties on the road to independent living.
Ensuring proper financial disclosure is exchanged and obtaining an accurate valuation of assets is crucial before deciding how to split property between spouses. When considering the division of finances, the court is guided by several factors set out in the law, beginning with the welfare and best interests of any children of the marriage and thereafter with the resources of the parties and any other responsibilities, needs and actual or potential earning power of each of them.
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. This can often be a sensible way to reach a solution rather than incurring legal costs and fees in making a court application. However, if it is not possible to reach an agreement, there are a number of ways in which you can apply to court to secure maintenance. If you are unmarried and the other parent of your child is not paying maintenance, you can apply under the Children Act (2012) for an order that they should pay you maintenance for the child. If you are married and your spouse is not supporting you and/or your children, you can apply for an order under the Maintenance Act that they 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 under the Matrimonial Causes Act.
When considering child and spousal maintenance, the court will consider the actual income and outgoings of the parent/ spouse in whose favour the order is made in addition to the income and outgoings of the parent/spouse who will be required to make the payments.
The amount payable under the order can be varied by agreement or by application to the court any time after a child or spousal maintenance order has been made. 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 or another important change in circumstances 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. If you do not feel it is appropriate to call the police, the Cayman Islands Crisis Centre provides a 24-hour Crisis Line (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 available for victims at various stages. This service is available by telephone and online, visit www.cicc.ky.
The court also has wide powers to make orders to protect you, your children and other connected persons and to regulate the occupation of the home in which you live. In cases of serious domestic violence, your abusive partner 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 divorce may cost between CI$2,000 and 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 parental responsibility for a child, or from a court, before taking the child abroad, unless there is a residence or shared residence order in place, in which case the parent named under such an order can remove the child for a maximum period of one month.
It is 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, it is good practice to obtain a letter that demonstrates you have permission to travel with your child, as you or the other parent might still be asked for a letter at a border.
The letter should include the other person’s contact information and details about the trip.
It can also be helpful to 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.