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The Editor’s Choice: Should Cayman’s divorce process be modernised?

Colin WilsonwebIn Tuesday’s (30) posting in iNews Cayman titled “Family Law Reform Commission submissions for public comment” ( you will find links where our readers are encouraged to download and review the Law Reform Commission’s plans to modernise the divorce process.

The Law Reform Commission has submitted for public comment the second part of its review of the laws regulating family matters and proceedings in the Cayman Islands. A discussion paper, a Matrimonial Clauses Bill, 2013, a Maintenance Bill, 2013 and a Family Property (Rights of Spouses) Bill, 2013 are the documents that comprise this review for comment.

The Bills cover a wide range of matters including the following-Law Reform

(a)       one ground of divorce i.e. irretrievable breakdown of the marriage as evidenced by 12 months of separation;

(b)      mediation in family proceedings;

(c)       the recognition of pre-nuptial agreements;

(d)      abolition of actions and damages for adultery;

(e)       financial relief in the Cayman Islands courts after separation or divorce in another jurisdiction;

(f)       abolition of the need for men to prove domicile in order to apply for a divorce in the Islands;

(g)       gender equality in maintenance proceedings;  and

(h)      the regulation of property and financial matters of both married and unmarried couples in de facto relationships of five years or more.

The discussion paper says under “Grounds of Divorce”:

“It was noted that one of the distinct differences between the Matrimonial Causes Law  (2005 Revision) (“the MCL”) and the legislation of several jurisdictions such as New Zealand, Australia and Jamaica is that parties are still required in the Cayman Islands to provide   fault-based   grounds   for divorce   such   as adultery, unreasonable behaviour and desertion.

“Section10 of the MCL provides that a decree of dissolution of marriage may be pronounced by the court in respect of a marriage on the ground that since the celebration of the marriage:

(a) The   respondent has   committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the decree being pronounced; or

(e) The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

“One of the principal aims of modern divorce legislation is to ensure that when a marriage has broken down and parties have no intention of trying to fix such marriage, the process of dissolving the marital partnership should be as free of acrimony as possible.  Naturally this depends on the personality of the parties and the circumstances leading to the breakdown but legislation should ensure that this difficult time is made less painful.   One of the legislative responses to this was to move away from fault-based divorce and provide for one ground of divorce i.e. irretrievable breakdown.

“The Commission posed the following questions in the 2011 paper-

Should the MCL be reformed to provide for one ground for divorce i.e. irretrievable breakdown or should the Cayman Islands continue to require parties to prove fault or separation?

Would a single no-fault ground be more effective in reducing acrimonious divorces?

“While the Cayman Islands Law Society and the Caymanian Bar Association (“the legal associations”) and other persons were in favour of the one ground of divorce, there were negative responses   from one local firm   (“the local firm”) and the Cayman Minister ‘s Association.  The local firm opined that the matrimonial offence principle appears to work in the Cayman Islands.  Further, that if the fault-based system is taken away then divorce rates are likely to substantially increase with its attendant problems for the children and the less well-off spouse.

“The Ministers’ Association was equally unsupportive and was of the view that proving fault or separation should be retained.  According to the Association, in the United States, those states adopting no-fault divorces appear to have contributed to escalating divorce rates over the past three decades. The Association expressed its hope that the grave mistake of principles that have been made elsewhere would not be adopted blindly into the Cayman Islands legislation.

“The Commission believes that this review would have benefited from a greater number of responses from a wider cross section of the society.   What is required is a balance between, on the one hand, modernising our legislation to ensure that when a marriage is in its final days and parties are intent on ending their marriage that this can be facilitated by the law and courts in a way to ensure the minimum of bitterness and, on the other hand, to ensure that spouses do not believe that divorce is an easy way out of marital discord.

“The Commission does not accept that the court should only deal with cold hard facts and believes modern matrimonial legislation should, while seeking to resolve divorce with as little harm as possible to all interested persons, also seek to assist parties in re-considering their decision to end their marriage. The legislation should also include mediation and other “family support” steps, which must be taken prior to the grant of a decree.”

I must applaud the Commission for their initiative in asking the basic question “Should Cayman’s divorce process be modernised?” and initiating a wider cross section of Cayman’s community to be involved.

I must slap the Minister’s Association on the wrists for taking it upon themselves to speak for the Ministers alone and not their respective congregations. I do not know one congregation they represent that has received these documents nor have they initiated any meetings on the subject. If I am wrong I will be delighted to be corrected.

I am not saying I do not support their view but for an association that is supposed to speak for all their members – their congregation – they assume their views are our views. They are not God.

There is a lot of documents to wade through – hundreds of pages – and I have not even reached a third of the way through them.

Thankfully we all have until 11th November 2013 to submit our comments and I hope all the service clubs will get involved WITH THEIR MEMBERS because this is a very important topic.



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