CMA Reaction 2018 Fam Law Reform

Original Documents:

The 2018 CMA Reaction to Family Law Reform Executive Summary and Bills

1. Introduction - Principles of Marriage and Family Law in the Cayman Islands constitutional democracy which "recognises the distinct history, culture, Christian values and socio-economic framework of the Cayman Islands".

In reflecting on the proposed changes to the Matrimonial Causes Law, the CMA feels the need first to emphasize the obvious, which is that all decisions are values-based—whether individually or institutionally. By extension, then, decisions (especially community-impacting ones) have the power to redefine or reshape values. This being the case, it is vitally important that any changes included in the three Bills being reviewed recognise the Christian values underpinning the institution of marriage in these Cayman Islands. Wedding ceremonies make reference to marriage as a “holy ordinance,” a “holy institution,” a “holy estate.” The couple is reminded that they should not enter this estate of “holy matrimony” “unadvisedly or lightly, but reverently, discreetly, advisedly, and in the fear of God.”
Clearly then, when approaching the matter of divorce, the same spirit and principle of the sacredness of marriage must be upheld, so that couples do not divorce “unadvisedly or lightly,” but with full understanding of the serious implications of divorce on each of them, as well as on any children that may have resulted from the union, and, in reality, on the society as a whole.
Therefore, by moving “away from the current fault-based divorce to a single ground of divorce, i.e., irretrievable breakdown,” in order to make divorce less complex and less painful to the couple, the end result will be - inadvertently but inevitably - to devalue the institution of marriage. In other words, the “simpler” divorce becomes, the more trivial will this community’s view of marriage become, with the concomitant negative social results experienced by other jurisdictions in which similar exercises have been carried out under the easy presumption that they were making positive contributions to society.

2. Comments on the 2018 law reform proposals

(1) Historical Note. The proposed bills are stated to be the outcome of the same review begun in 2011. Unfortunately the members of the Law Reform Commission do not appear to have taken notice of the most important part of the CMA reaction to it in 2011. (See Appendix below.)

(2) Acknowledging the Moral Basis of Community. The CMA emphasises that the principles reflected in (a) and (b) of our 2011 reaction (see Appendix) are as important now as they were at that time. It is just as true now as it has ever been that there has to be a moral base, a sense of right and wrong upon which the stability of family life, the law and the cohesion of society depend. This should serve as a “reality check” for legislators in their unjustified push towards "no fault" solutions. As our 2011 research noted,

The United States was among the first countries to adopt “No-fault divorce” statutes in the 1970s. The Matrimonial Law discussion paper conspicuously omits any reference to the experiences with “no-fault” divorce in this neighbouring region. There appears to be a clear relationship between laws regulating divorce and actual divorce rates. States adopting unilateral or so-called “no-fault” divorce laws appear to have contributed to escalating divorce rates over the past three decades in the United States. In the 1970s, 37 States made legislative amendments or repeals to divorce statutes to implement no-fault divorce.[ Leora Friedberg, “Did Unilateral Divorce Raise Divorce Rates? Evidence from Panel Data” (Cambridge, MA: National Bureau of Economic Research, 1998); P.A. Nakonezny, R.D. Shull, and J.L. Rodgers, “The Effect of No-Fault Divorce on the Divorce Rate Across the 50 States and Its Relation to Income, Education, and Religiosity,” The Journal of Marriage and Family 57 (1995): 477-488; D.A. Vlosky and P.A. Monroe, “The Effective Dates of No-Fault Divorce Laws in the 50 States,” Family Relations 51 (2002): 371-324.]

The CMA is not at all implying that there can be no reform in the manner in which these difficult issues are to be dealt with, and commends the Law Reform Commission for some of its work. We support the Principles laid down in the Matrimonial Causes Bill section 9. We agree with the provision, in general, of the counselling facilities that are proposed. However, the CMA continues to insist that to try to facilitate the principle of no principle can never be the way to benefit individuals or the society. It is unprincipled to erase the foundations of moral action and judgment upon which any sense of injustice may be assuaged, leading to unhealed injury in the minds and hearts of those individuals and families affected, with perhaps even generational consequences. If a law is not based on moral or ethical principle, it is an unprincipled law, one that runs counter to the most basic human civilisational frameworks of humanity, including those that have been constitutionally recognised for the Cayman Islands. Applying effective legal penalties, such as maintenance orders, where no fault is acknowledged is surely repugnant to the basic structures of jurisprudence. And we should learn from the tragedies reported in other places.

(3) Suspension of Drivers' Licence. Concerning the new suggestion 2 (g) in the Executive Summary that a person's driver's licence may be suspended for non-payment of maintenance, the CMA has doubts about the justice and suitability of such a penalty. Currently a person's driver's licence is not routinely suspended for serious speeding offences or many other infractions of the road code, where such punitive recourse could well be considered reasonable. Even ignoring the obvious fact that to do this is likely to compound the difficulties of any Cayman Islands wage-earner to an impossible degree, when he or she is required to increase expenditure (trapping him or her in a catch-22 situation), the punishment in an environment of gravely inadequate public transport may be regarded constitutionally as "cruel and unusual", and very probably unhelpful in resolving the issue. It is noted that there are provisions for appealing against the penalty, in a successful case of which the legal penalty becomes a serious waste of time, effort and resources to all concerned.

(4) Marriage and Non-Marriage. The necessity for a marriage between two qualified individuals to be undertaken with the unfettered consent of the two individuals concerned is to be regarded as absolute and not to be interfered with or distorted by the demands of the State or indeed any third party. This is because, with the marriage, a covenantal relationship is being freely and publicly engaged in, in which the two parties are given privileges and undertake obligations. Such covenants benefit not only the individuals concerned (as well as those close to them) but also the State. It is reasonable therefore that the State should require that on a dissolution of the covenant there should be a just and public (and not arbitrary) settlement between the parties concerned. However, there are those who for a variety of causes do not consent to any such covenantal relationship, and these may choose to live together without any public acceptance of obligation to one another, and certainly not those of matrimony. It is untrue and unjust - and even Orwellian - for the State to regard such a condition to be equivalent to that of a marriage, as in the proposal 2 (j) of the Executive Summary, which would be brought into effect through the Bills. Indeed, with such an assumption, we may have entered an Alice in Wonderland world in which words, such as "spouse", may mean anything we (or in this case the State) want them to mean. In this connection we refer to what seems to be the most unfortunate and misleading "language creep" involved in defining the word "spouse" differently in all three of the bills. Our legal adviser writes:

I do not like the redefining of "Spouse" .... We already have an agreed definition of marriage in Cayman Islands Constitution Part I (Bill of Rights Freedoms and Responsibilities) Section 14. In my opinion spouse should be defined as "either Party to a marriage as defined in the Cayman Islands Constitution Order 2009 Part I Section 14". This would prevent any devaluing or manipulating of the agreed definition.

In practice such an redefinition by the State will understandably lead to widespread reactions such as this actual one: -

Anonymous says:

17/04/2018 at 1:07 pm

No, but the flip side is also true, people live together, acquiring assets together, for years and one (or maybe initially both) don’t intend for it to be permanent. this becomes a ‘gotcha’ clause where the relationship you thought you were in (both agreed at the start ‘this isn’t marriage’) suddenly is (a ‘common law marriage’) Now every four years you have to break up, like a roll-over period, or … gotcha.

The issue is whether the State has the right to regard what the two people never agreed was a marriage (with publicly adopted privileges and obligations) as ....a "marriage". It does not, for in this case the State would be interfering with the necessity of the unfettered consent of the two qualified individuals, and enforcing by its own fiat a marriage (with obligations) where in fact there was none. How do you have legal "spouses" without legal marriage?

Indeed, this would be an example of "State overreach" into the realms of individual choice and responsibility. Our legal adviser writes:

"Common Law marriages" - It may be arguable that to impose a legal or otherwise relationship on two people who have by their actions (or inaction) chosen not to formally commit to such is a breach of their Right to Private and Family life under section 9 Cayman Islands Constitution Part I (Bill of Rights Freedoms and Responsibilities).

(5) A Cunning Way In for Same-Sex? In view of the sensibility of the community to any possibility that same-sex marriage may surreptitiously be allowed to enter local jurisprudence by the back door, it is necessary to raise the following issue with the Matrimonial Causes Bill 2018.

(a) "Spouses" are defined in this Bill as "either of two persons of the opposite sex who are married to each other" (See comment by our legal adviser in 2 (4) above). This definition of "spouses" could not be applied without distortion or "re-interpretation" to the partners of a same-sex marriage or relationship.

(b) On the other hand, it seems to be provided for the Bill, if it becomes Law, to be applicable to those marriages of persons of the same sex that are conducted "outside the islands", for in section 6. "The court will recognise a marriage celebrated outside the islands upon being satisfied that the marriage was in fact celebrated in accordance with the law of the place of such celebration unless, in accordance with sections 4 and 32, such marriage is proved to be void." Section 4 excludes polygamous marriage "being entered into in a place outside the islands". However, section 32 only excludes marriages within the prohibited degrees of consanguinity or affinity, or otherwise "void under the law in force in the islands relating to marriage", and for other causes, "if it was celebrated in the islands".

This appears to mean that irrespective of this Bill's definition of spouses, and indeed flying in the face of the Cayman Islands constitution, this proposed Law does indeed allow the definition of marriage (under the C. I. Marriage Law 2009 "the union between a man and a woman as husband and wife") in the Cayman Islands to be expanded to include same-sex marriage, albeit if only (at this stage) for a local court to legitimise such a union's dissolution. How can a local court recognise a union contracted outside the Islands as a "marriage" within the Islands, when the Marriage Law within and throughout the jurisdiction specifically excludes it as a marriage in the Islands?

Appendix

Summary of CMA 2011 Reaction to proposed Matrimonial Causes Law amendment that was submitted to the Law Reform Commission concerning the Family Law Review which was commenced in 2011.

(a) Marriage is best for children. Children raised in the care of their married biological parents experience better life outcomes than children in any other family arrangement. [Kristin Anderson Moore, Susan M. Jekielek, and Carol Emig, “Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do about It?” (Washington, D.C.: Child Trends, 2002).]

This does not mean that children in other arrangements always fare poorly. But it does mean that societies concerned with the well-being of children have a vested interest in the promotion, protection, and prosperity of marriage.

(b) The observation in the Latimer Report (UK) that there needs to be a moral base, a sense of right and wrong upon which the stability of family life, the law and the cohesion of society depend should serve as a “reality check” for Cayman legislators. Successive liberalisations of the Matrimonial law have everywhere ushered in an increase in divorce proceedings, less family stability and less societal cohesion, and it should be obvious that the liberalising of the law is clearly a cause of this trend, rather than the liberalised law simply reflecting the wishes of the community. (Emphasis added.)

(c) In respect of the section "Recognition of Common Law Unions between Men and Women", the CMA believes that to protect the succession rights of children of such unions reflects a just approach. That change from the former State has already been made. But to go further than this would be likely to lead to a diminution of the special status of matrimony. The CMA believes that there should be no recognition of unions other than marriage.

(d) The CMA does not consider that the suggestions under the "Artificial Insemination" section should be made part of the MCL Revision. In addition, the CMA adamantly opposes any suggestion that the registered father be any person other than the man from whose sperm the child arises. However, the CMA believes that children resulting from artificial insemination should be afforded appropriate legal protection, where necessary, in separate legislation.