Henderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE NO. D11 of 2006
BETWEEN: DARELL HINES Petitioner
AND: ESTHER HASSETT Respondent
Appearances: Mr. Anthony Akiwumi of Stuarts Walker Hersant for the Petitioner
Ms. Sheridan Brooks of Brooks & Brooks for the Applicant/Respondent
Before: Hon. Justice Henderson
Heard: September 8, 2006
RULING
This somewhat unusual application raises a question of domicile.
In his amended petition for divorce, the Petitioner said this (in paragraph 3):
"This Honourable Court has jurisdiction in the above cause by reason that the Petitioner is domiciled and resident in The Cayman Islands. The Petitioner has been resident in the Cayman Islands since March 2001 and has been employed on several work permits by his employer, Caribbean Network Solutions, as a manager. The Petitioner is recognized by his employer as key to the organization. It is the Petitioner's settled intention to remain in the Cayman Islands for the foreseeable future."
The Respondent (Applicant here) mounts two attacks on this petition.
First, she says that the petition should be struck out as it does not allege, in proper form, the jurisdictional underpinnings which must be present for the Court to assume jurisdiction over this matrimonial proceeding.
I have already ruled, during the course of argument, that the allegation quoted above is sufficient. If the facts alleged in paragraph 3 of the amended petition are proved to the satisfaction of the Court, the Petitioner will indeed have established that he is domiciled in the Cayman Islands. That aspect of the application is dismissed.
The summons also asks for an order that the amended petition be dismissed "on the basis that this Honourable Court has no jurisdiction to hear the matter". With the acquiescence of both counsel, I have chosen to treat this as an application for, in effect, summary judgment on the question of jurisdiction.
The only evidence before me is that of the parties themselves. Mr. Hines has attested in his affidavit that he has a fixed intention to remain in the Cayman Islands indefinitely.
In response to that, Ms. Hassett points to his immigration status. This requires some explanation. Mr. Hines is from the United Kingdom; that, I take it, is his domicile of origin. To acquire a new domicile in this (or any other) common law jurisdiction he must, establish first that he is a resident in the jurisdiction and, secondly, that he has a settled intention to remain indefinitely.
The question of intention is not judged in a purely subjective manner. The Court takes into account the subjective intention of the party, but also takes into account objective considerations which bear upon not only the sincerity of the professed intention but (I accept, for present purposes) the possibility or impossibility of fulfilling that intention.
As a foreigner in this jurisdiction, Mr. Hines will not be permitted to work here without a work permit. He will not be permitted to have a work permit which would take the aggregate of all the work permits issued to him beyond a period of seven years unless and until the Immigration Board classifies the position he is holding as an exempt position.
There is evidence that Mr. Hines’ employer intends to apply to have the position so classified, but the evidence does not indicate that the employer has actually commenced that process. There is a significant amount of time remaining within which the employer can commence the process. Now may not be an opportune time for making such an application, as it is my understanding that aspects of the current immigration policy are under active review by the Government of the Cayman Islands and may be altered, perhaps significantly, in the near future.
The degree to which Mr. Hines’ subjective intention is unrealistic because of immigration constraints is a question of fact and one which is highly disputed. The resolution of that question would require more evidence that I have before me. I would need evidence from Mr. Hines’ employer, and I expect there will be a need for some evidence from the Immigration Department itself on the subject of current practices and policies regarding exempt positions. In addition, the proposition that a person’s subjective intention can be
overridden for domicile purposes by the legal impossibility of carrying out that intention is still, I think, open to some debate. (I have not lost sight of the fact that, in Hawkes v. Hawkes, Justice Douglas of this Court assumed the validity of the proposition.)
For these reasons, the question of fact is not ripe for decision on this application. With some regret, I must leave this question for resolution at trial. The application for summary judgment is dismissed.
Dated this 8th day of September, 2006
Henderson, J.
Judge of the Grand Court