A genuine research consensus is a rare reality in the social sciences. However, in the case of marriage, the social science research is consistent, sound, and clear. Children raised in the care of their married biological parents experience better life outcomes than children in any other family arrangement. ^¹ 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.

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 neighboring 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.^²

While the sharp increase in divorce rates that began in the 1960s leveled off during the 1990s, U.S. divorce rates remain at very high levels and at nearly two times higher than any other developed nation.^³ Alarmingly, the Cayman Islands rank with the United States among the world’s highest per capita divorce rates.

Divorce Hurts Children. Despite the contention that making divorce easier is “better for everyone,” the social science evidence demonstrates that divorce actually hurts everyone involved. For example, children in divorced families experience greater rates of depression, antisocial and impulsive behavior, and school-related behavior problems.^⁴

While many people will remarry following a divorce, resulting in “blended” families with one or more stepchildren, children in such stepfamilies often face challenges in maintaining positive relationships with their non-custodial parent and integrating family life in the second marriage. While differences in outcomes between children in stepfamilies and first-marriage families are modest, children in stepfamilies do tend to exhibit poorer academic performance, lower socio-emotional adjustment, and more behavior problems. These differences appear to be most acute during the first two to three years of a remarriage and to diminish over time.^⁵

Divorce Hurts Parent-Child Relationships. Separation or divorce jeopardizes the stability of parent-child relationships. This is especially true for fathers, who are not typically the custodial parent during times of family instability or changes in family structure. Non-custodial father contact, while it may take many forms, diminishes over time. Only 12 percent of fathers maintained contact when they had been divorced longer than ten years. Along with these declines in parent-child contact come parallel declines in frequency of mother-father contact, father’s influence on decision making, and child support payment after the fifth year of divorce.^⁶

Divorce Hurts Adults. Research also indicates that family structure is related to the well-being of adult parents in the family. For example, divorce and other marital disruptions are linked to mental health problems for young adults and non-custodial fathers. Such mental health problems include depression, psychological distress, chronic stress, and suicide. Many non-custodial fathers feel a loss of control, anxiety, guilt, sadness, and emptiness associated with estrangement from their former spouse and children.^⁷

Divorce Hurts the Financial Success of Families. Available research conducted in recent decades supports the premise that economic success is associated with better family outcomes, including more marriage, less divorce, greater marital happiness, and higher levels of child well-being. “Family turbulence” (dramatic changes created in part by changes in family structure and family living arrangements) significantly impacts negative behavioral, emotional, and school outcomes for children.^⁸

The proposed amendments to the Cayman Islands’ Matrimonial Law - as they now stand - travel in the opposite direction of the best available social science research. There is a clearly established research consensus indicating that healthy marriages are associated with significantly better outcomes for both children and parents. The research evidence indicates that the economic advantage of marriage (1) surpasses the advantages available to couples who cohabit but do not marry, (2) can accrue to low-income couples, and (3) lower poverty among children and women.^⁹

II. ANALYSIS OF THE MATRIMONIAL CAUSES LAW (2005 REVISION) PROPOSED DISCUSSION PAPER FOR ITS REFORM

1. The Cayman Islands' Matrimonial Causes Law (MCL) is stated to be "years behind similar legislation of countries such as Barbados, Jamaica, Australia and New Zealand".

The Discussion Paper highlights areas which the Law Reform Commission believes are in need of reform and to seek public input.

The Discussion Paper also examines the MCL from the perspective of whether it satisfies the "field of choice" criteria used in the UK and Hong Kong. These criteria were set out by the UK Law Reform Commission in 1966.

These criteria were not accepted without controversy at the time, and especially with the benefit of hindsight must be considered to be flawed. The degree to which this is true will affect the extent to which they should be regarded as a valid standard today, over 40 years later.

The Discussion Paper states that the "Field of Choice" report of 1966 propelled the enactment of the Divorce Act of 1969. This report of the UK Law Reform Commission posited that a good divorce law should seek to achieve the following objectives:-

(b) when a marriage has irretrievably broken down, to enable the empty shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.

The problem with the language being used in (b) is that "irretrievable breakdown" could be an entirely subjective assessment, especially if it is being sought by only one party. And the problem with objective (a) is that it singularly, even spectacularly, fell short of achievement.

In the 90's the Latimer Trust published - http://www.latimertrust.org/download/60comment.pdf - its Latimer Comment 60 on No Fault Divorce, which was introduced in the UK in the '90s. The following paragraph reveals the problem with the whole "irretrievable breakdown" concept as it had now been applied to marriage.

"But it is the substantive effect, not the procedural changes, of the proposed reform which is the important issue, and the nature of this must be fully appreciated. It is this which bears upon the understanding of the permanence or otherwise of marriage. Fault is indeed to be irrelevant and, what is more, so also is consent. What is proposed is divorce solely by unilateral repudiation. It is intended to retain the concept of irretrievable breakdown, but, as indicated above, the legal concept of irretrievable breakdown does not represent an evaluation of the actual or prospective relationship between the parties.* It is in substance a label for the result of the facts by which it is legislatively defined."

One can say that "irretrievable breakdown" has under No Fault Divorce become more the intended result of the procedure than a condition that had objectively existed in the first place. The Cayman Islands Discussion Paper quotes the UK Law Commission in its 1966 Report giving half a page of "argument for retention of the matrimonial offence principle" and about one and a half pages of argument "Against retention of the matrimonial offence principle". It is clear that the discussion paper is somewhat weighted towards persuading the society on the supposed merits both of the "No Fault divorce" principle and the "irretrievable breakdown" assessment, in spite of the philosophical lacuna these have brought into the legislation elsewhere, with the resulting injustices and inconsistencies affecting innocent parties including (and especially) children, and indeed in spite of their failure in any of the legislative changes "to buttress, rather than undermine, the stability of marriage."

The Green Paper announcing the change was entitled Looking to the Future. What is hoped is that the parties will no longer be forced to look to the real or imagined rights or wrongs of the past. In this way it is hoped bitterness can be avoided. In particular it is said that the allegations in a 'behaviour' petition cause ill feeling. But it may be replied not only that the history is relevant and should be faced, but also that the bitterness itself results from the history. A unilateral divorce based on no expressed reason (for none would be needed) is likely to be perceived to be unjust. The injustice may be aggravated by maintenance obligations which again do not depend upon fault. We believe in a moral, although fallen universe. In this respect the proposals are not merely unjust in the abstract but conflict with reality and human nature.

It must be ardently hoped that the grave mistakes of principle that have been made elsewhere are not adopted blindly into Cayman Islands legislation. The Latimer Report further notes:-

"She" (Mrs. Ruth Deech in the March 1994 issue of the Family Law magazine (UK)) "adds that every successive change this century has led to an increased divorce rate, greater familiarity with divorce as a solution to marital problems and more willingness to have recourse to it. This in turn leads to a call to relax the law further to bring it into line with 'reality'."

The observation in the Latimer Report 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.

Notwithstanding that this CMA statement is in favour of certain changes being made in MCL, we believe that since such a major part of the Discussion Paper imports the kind of paradigm shift that has proved to be unjust and destructive elsewhere, we recommend that the first section of the paper, entitled "Grounds for Divorce", as well as the Introduction, be rejected and rewritten. In regard to what it says about the supposed difficulties of obtaining a divorce in the Cayman Islands in comparison to elsewhere, the perception is that, whatever the procedure is that is in place here, divorce seems to be obtainable in weeks rather than months, and under such circumstances, as well as with certain cultural factors special to the Islands, it is not surprising that the divorce rate is excessively and unfortunately high in the Cayman Islands.

2/3. In respect of the sections entitled "Promotion of Reconciliation" and "Protection of the Interests of Children", the CMA supports and finds highly desirable the general approach that is taken by the Discussion Paper.

4. In respect of the section "Recognition of Common Law Unions between Men and Women", the CMA believes it is a just approach to protect the succession rights of children of such unions, (s. 57). 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.

5. In respect of the section "Divorce Proceedings", the CMA considers there is merit in the suggestion of s. 66, but that the 31 day period referred to in s. 67 is unacceptably short. The CMA would suggest a time period of 6 months at least.

6. The CMA agrees with the position taken in respect of "Financial Relief in Cayman Islands after Separation or Divorce in Another Jurisdiction".

7. The CMA has no comment to make on the section "Ancillary Orders." It trusts that the competent authorities will make the best arrangements.

8. The CMA agrees with the general position pointed to by the paper under "Damages for Adultery", that damages should no longer be available against a third party.

9. With respect to "Pre-Nuptial Agreements", while the CMA does not advocate the use of such agreements prior to Holy Matrimony and is inclined to deplore them, their objective existence is not in doubt, and they should be taken into account and recognised in divorce settlements.

10. 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. Fortunately, these matters appear not to be at this time matters of concern for families in the Cayman Islands. However, the CMA believes that children resulting from artificial insemination should be afforded appropriate legal protection, where necessary, in separate legislation.

11. The CMA agrees that the position of the MCL with respect to "Domicile and Jurisdiction of the Court in Matrimonial Proceedings" should be rationalised.

From the foregoing, it can broadly be seen that the response of the CMA to questions A to N will be

C: Possibly, but significant time periods ought to be maintained, e.g. 6 months minimum.

D: It is possible. However, the UK experience shows that the purpose of what is called "mediation" may not be reconciliation of the parties, but rather the reconciliation of a reluctant party to the impending divorce. Care should be taken to preserve the sense of justice. If the law envisages mediation as a means of preserving the marriage (which we would advocate), then very specific steps should be outlined within the law wherein this can take place prior to the matter coming before the courts, whose processes by their nature tend to be adversarial. The CMA believes that the society has an interest in the preservation of marriages and that the Government would rightly invest in this. The reconciliation process should become seen as a normal part of the total process, but an opt-out could be applied for for due cause.

* emphasis added. Earlier, the Latimer Report states "The 1969 Act, while adopting the terminology of irretrievable breakdown of marriage, severely qualified the concept and did not implement the inquisitorial procedure [that had been proposed]."

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).

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.

National Center for Health Statistics, Monthly Vital Statistics Report, 1990 (Washington, D.C.: U.S. Department of Health and Human Services). The divorce rate per 1,000 married women over 15 rose from 9.2 to 14.9 to 22.6 during the decades ending 1960, 1970, and 1980, respectively. The rate lowered slightly to 20.9 in 1990. Marriage and divorce statistics comparing the United States to twelve other nations can be found at www.ed.gov/pubs/Youth Indicators/indtab05.html.

Ibid.

Moore et al, “Marriage from a Child’s Perspective,” 1-2; Nan Marie Astone and Sara McLanahan, “Family Structure, Parental Practices, and High School Completion,” American Sociological Review 56 (1991): 309-320; Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Cambridge, MA: Harvard University Press, 1994).

J.A. Seltzer, “Relationships between Fathers and Children Who Live Apart,” Journal of Marriage and Family 53 (1991): 79-102.

A. Cherlin, P.L. Chase-Landsdale, and C. McRae, “Effect of Parental Divorce on Mental Health,” American Sociological Review 63, no. 2 (1998): 239-249; Adam Shapiro and James David Lambert, “Longitudinal Effects of Divorce on Father-Child Relationship Quality and Father’s Psychological Well-Being,” paper presented at the 1996 American Sociological Association Meeting in New York and the 1997 National Council on Family Relations’ Annual Meeting in Washington, D.C. Available at: www.unf.edu/-shapiro/jmffather.htm.

Kristin Anderson Moore, Sharon Vandivere, and Jennifer Ehrle, “Turbulence and Child Well-Being” (Washington, D.C.: The Urban Intitute, June 2000); Child Trends, Charting Parenthood: A Statistical Profile of Fathers and Mothers in America (Washington, D.C.: Child Trends, 2002).

Robert I. Lerman, “Marriage and the Economic Well-Being of Families with Children: A Review of the Literature” (Washington, D.C.: The Urban Institute, July 2002).