The Cayman Islands’ divorce rate – when compared with most of its Caribbean neighbours – is quite high, according to information contained in a report from the country’s Law Reform Commission.
The high divorce rate is coupled with a few areas where the commission found provisions in Cayman’s Matrimonial Causes Law (2005 Revision) were “archaic” and in need of review. The discussion paper, which contains detailed research done by the Law Reform Commission, is now available for public review.
According to the paper, Cayman averaged 219 divorces per year between 2005 and 2009, with the highest number of divorces for a single year coming in 2009, which saw 232 divorces.
The commission said that works out to about 4.2 divorces per 1,000 people in the country. Data collected on the website www.nationmaster.com indicated that only Puerto Rico (4.5 divorces per 1,000 people) and the United States (five divorces per 1,000) had a higher rate. Canada’s rate was 2.5 divorces per 1,000 people; Barbados’ rate was 1.2 divorces per 1,000, while Jamaica’s was only 0.38 divorces per 1,000 people.
The divorce rate in Cayman remains high, despite the fact that obtaining grounds for divorce here is more difficult than in many other jurisdictions, the commission said.
“Parties [to a divorce] are still required in the Cayman Islands to provide fault-based grounds for divorce such as adultery, unreasonable behaviour and desertion,” the Law Reform Commission’s paper read. “The [Matrimonial Causes) Law further provides that if the ground is that of adultery, a party to the marriage cannot apply for a divorce unless two years have passed since the celebration of the marriage.”
The court can grant exemptions from that rule in cases where one of the parties is determined to have sustained “exceptional hardship”. However, Cayman’s law does not provide grounds for divorce in cases where both parties have agreed to end a marriage that is “irretrievably broken” – what is commonly referred to in the US as “irreconcilable differences”.
Essentially, parties to divorce in Cayman must prove fault one way or the other unless the court decides exceptional hardship is involved.
“The above provisions contrast sharply…with the Family Law Act of Barbados,” the commission wrote. That law allows dissolution of marriage if the parties were living apart for 12 months prior to the application to dissolve the union.
“In Australia, a petitioner need only satisfy the court that he/she and his/her spouse have lived separately and apart for at least 12 months and that there is no reasonable likelihood of resuming married life,” the commission stated.
The commission is also asking the public to consider whether the Matrimonial Causes Law should be changed to legally require couples to undergo marriage counselling or mediation prior to a divorce being granted, although it did not advocate legislators taking such a position.
Another problem created in the Cayman Islands is if a court recognises a divorce approved in another country without financial provision made for the “economically weaker” party who resides in Cayman.
“The court still has no power to order maintenance for a party who is resident in the Cayman Islands [in such a case],” the commission found. “In the Cayman Islands, where there are over 100 nationalities, where divorces can be obtained in countries as far afield as Brunei, South Africa, or Uganda involving persons who are domiciled or resident in the Cayman Islands, it is important that the law be reformed to grant the courts such powers.”
Other issues reviewed in the Law Reform Commission’s discussion paper included:
Whether the law should seek to regulate common law marriages – where couples have lived together for a certain number of years
Whether the law adequately protects any children of the couple seeking to separate
Whether the right of a person to claim damages for adultery should be retained
If the law should be changed to provide for children begotten via artificial insemination