The Law Reform Commission has recommended easing local divorce laws, abolishing requirements that a couple specify the causes ending their marriage and halving the mandatory period of separation to a single year.
In a Monday news release, the commission recommended changes to three marriage-related laws, the Matrimonial Causes Bill, the Maintenance Bill and the Family Property (Rights of Spouses) Bill.
Among the significant changes to matrimonial legislation are simplification of the grounds for divorce, reducing the previously required two-year separation demonstrating marital failure and granting legal standing to prenuptial agreements.
In Monday’s summary paper, the commission contrasts marriage legislation in New Zealand, Australia and Jamaica, pointing out that Cayman law requires someone to specify among five “fault-based grounds of divorce such as adultery, unreasonable behaviour and desertion”, but argues that such rules are unproductive and frequently painful.
“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,” the report states.
“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 report asks if “irretrievable breakdown” would prove effective in reducing acrimonious divorces, but quotes dissent from Brooks & Brooks Attorneys-At-Law and the Cayman Ministers Association.
“The local firm opined that the matrimonial offence principal appears to work in the Cayman Islands,” the commission paper says, describing fears that abolition of the fault-based system would boost divorce rates “with its attendant problems for the children and less well-off spouse”.
The ministers association, the report noted, feared that no-fault divorce “appears to have contributed to escalating divorce rates over the past three decades”, calling such legislation “a grave mistake”.
According to divorcerate.org, in 2012, the US and Cayman ranked fifth and sixth in the world, boasting identical divorce rates of 3.4 people per 1,000, exceeded only by Eastern European countries Russia, Ukraine, Belarus and Moldova.
The new law proposes that a petition for divorce can be presented by “either spouse on the grounds that the marriage has broken down irretrievably” and that the courts will grant the divorce if the spouses have lived apart for one year.
“The one-year term was recommended by a lot of the respondents,” said Cheryl Neblett, director of the Law Reform Commission. “A separation of one year is only practical.”
Marriage-law reform was among the original issues in front of the group at its 2005 founding, she said, but other issues such as Legal Aid and the Legal Practitioner’s Bill intervened.
“But this is an area of law that affects everyone, and we received responses and calls over a six-month period,” leading to recommendations to change adultery laws, including financial penalties.
Additionally, reconciliation efforts are no longer required. The commission, noting local divorce rates, feared the difficulty “to fund and administer mediation” while “it would not be appropriate to obligate a victim of domestic violence to go through a face-to-face conciliation”.
Ms Neblett said the clauses create a kind of navigation in which the courts seek an equable course between supporting marriage and allowing spouses to terminate a union both wish to end.
Proposals regarding children of divorce under the new law resemble those of the old law – the courts will not grant a divorce until all children are safely accommodated. The age of “children” is redefined, however, to less than 18, while, if necessary, the courts may order that a child may have legal representation. Additionally, children shall not be exposed to courtroom proceedings or questioning unless judges deem it crucial.
Financial provisions must be made for spouses and children, but courts may grant a summary divorce if no children are involved and spouses have made financial provisions.
According to the commission’s report, public opinion, including the Cayman Ministers Association, acknowledged the reality of prenuptial agreements, largely approving them.
“Individuals may choose to structure their affairs in a number of different ways and courts should be reluctant to second-guess the arrangements,” the document states.
“Property legislation is also important,” Ms Neblett said, pointing to the two other bills the commission addressed on Monday. “A lot of people are not married, and a lot of women don’t know what their property rights are.”
The Maintenance Bill and Family Property (Rights of Spouses) Bill are also under review by the commission, with all changes set for presentation to Cabinet later this year.
“We have called for feedback and set a deadline of November,” Ms Neblett said. “I hope that’s enough time. People ask for extensions and extensions, but we will get the responses by November, collate them, draft any amendments and then submit it to Cabinet.
“After that, though, we have no control over what Cabinet does,” she said, hoping that formal submissions might come by early January next year.