NEW ARTICLE – THE RIGHTS OF UNMARRIED COUPLES IN THE CAYMAN ISLANDS
New Article – The rights of unmarried couples in the Cayman Islands.
In their new article, NICK HEMUS an Attorney in our company and commercial department and GARETH JACQUES, our specialist family law Attorney, considers the rights of unmarried couples in the Cayman Islands and how unmarried couples can protect themselves when buying residential property.
The Rights of Unmarried Couples in the Cayman Islands
Spoiler alert – there is no such things as Common Law Marriage in the Cayman Islands.
According to the Cayman Island’s 2021 Census Report1 approximately 48.4% of residents aged 15 and older were legally married, with around 80% of those married living with their spouse. Upon divorce, financial provision for those couples is governed by the Matrimonial Causes Law (2005 Revision), meaning that the Courts can make orders to sell or transfer property from one spouse to the other and for the payment of spousal support. With cohabitation between unmarried couples becoming increasingly common, this article looks at the legal options available to unmarried couples, both with and without children, should they separate and sets out why parties may consider entering into a Cohabitation Agreement
The Problem
It is a commonly held misconception that unmarried couples in the Cayman Islands have rights against each other’s property should they separate under ‘Common Law Marriage.’ Despite recommendations that the law in the Cayman Islands be reformed in this area2, the law has not yet been changed. Put shortly, Common Law Marriage does not exist as a principle in the Cayman Islands, and this can create problems for unmarried couples upon separation.
Therefore, for those adults living together in the Cayman Islands who are not married, the present state of the law does not provide for any financial provision being made upon the breakdown of that relationship.
This means that, in situations where unmarried couples (particularly those without children) have cohabited and later separate, there is no statutory provision granting them the same legal rights as married couples. Consequently, such individuals do not have the legal capacity to bring a claim against their former partner for:
1. a share of the other’s property
2. the ability to resolve debts not held in joint names
3. any claims for spousal support
Instead, parties would have to rely upon trust doctrines to establish that they had an interest in the property, with such litigation being expensive and time consuming.
Where the unmarried couple have children, then applications can be brought for financial support for the children, however such provision would usually expire when the child turns 18 or finished their university education.
How does this play out in real life (unmarried childless couples)?
Example 1
Tom and Sarah decide to live together. Sarah moves into a property owned in the sole name of Tom. The couple live together for a period of 10 years and then separate, they have no children. Sarah gives up work after 1 year to support the career of Tom. Sarah makes no contribution to the household bills / mortgage or payment towards the house and the parties keep separate accounts, with Tom paying CI$2,000 per month to Sarah for housekeeping.
In this example, on separation, Sarah will have no financial claims against Tom. They will have no share of the property in which they were living and, in all likelihood, will have to find alternate accommodation at the time of separation. They will not be able to claim ongoing financial support from Tom.
Example 2
Claire and Ben decide to live together, and they decide to purchase a property together. The property is purchased for CI$1,000,000 and Claire pays a down payment on the property of CI$500,000. The property is registered in joint names. The couple live together for a period of 5 years and then separate, they have no children. Claire and Ben work throughout the relationship and all bills, including the monthly mortgage payments, are paid from a joint account. Ben pays CI$2,000 per month to Claire for housekeeping.
In this example, on separation, Ben, will have a claim for 50% of the equity of the property, despite the fact that Claire contributed 50% of the purchase price. The parties will ordinarily split the joint account and Claire will not be able to claim ongoing financial support from Ben.
What can be done?
Option 1 – Agree your property rights from the outset
If you are at the stage of purchasing a property with your partner, you may wish to consider specifying and protecting your interests from the start. There are two ways for couples to own a property in the Cayman Islands: Joint Proprietors or Proprietors in Common. These give very different legal outcomes.
If you hold property as Joint Proprietors, then you own the property together with no identifiable or divisable shares. This means that you are treated as joint property owners and, should the property need to be sold you would need a negotiated agreement as to the distribution of the proceeds of sale, or how much it would cost for one party to buy out the other’s interest. In addition, in the event of death of one of the parties, the whole of the property automatically vests in the remaining owner, meaning your individual will could not address what happened to your “share” of the property.
If you hold property as Proprietors in Common, you each own a specified share of the property. Whilst this is an “undivided share”, i.e. you cannot draw a line down the land and say which section belongs to each person, the legal interest you hold in the property is divided in accordance with the shares that you stated as being within each party’s ownership. For example, you could state that each party owned a 50% share of the property, and this would be recorded on the land register. That is then an enforceable valuation associated with your interest in the property and any proceeds would have to be split on the basis recorded. It also gives a clearly defined “buy out” value, as the value is easily ascertainable by carrying out a formal valuation and paying the specified percentage of that to buy out the other party. In the event of death of a Proprietor in Common, their identified share can pass in accordance with their individual will and does not automatically vest in the other owner.
It is therefore worth considering whether using the Proprietors in Common option could work for an unmarried couple. You can calculate, based perhaps on the deposit contributions made, or on how you plan to make mortgage repayments, how much of a share each party should be entitled to. In addition, later down the line, you can vary these shares (although note that a stamp duty liability would likely be incurred by any party increasing their share of ownership, in proportion to the increase).
At Priestleys, our specialist Real Estate team can advise upon and act for you in respect of any Property transaction. The team has an unparalleled track-record and reputation in the market and has been handling transactions in the Cayman Islands for more than 20 years.
Option 2 – Enter into a Cohabitation Agreement
To protect yourself in Example 1 and Example 2 above, you could consider entering into a Cohabitation Agreement. A Cohabitation Agreement is a document (much akin to a Pre-Nuptial Agreement for married couples) that is negotiated between the couple and sets out how they seek to regulate their financial (and potentially non-financial) arrangements between the couple, both during the time they are living together and in the event of a separation.
Ordinarily, a Cohabitation Agreement could record:
– Who owns each particular asset.
– How much each party has contributed to the purchase of a property.
– How much each party will contribute to household expenditure.
– What each party’s financial contribution can (and cannot) be used for.
– Who will keep each asset or whether the asset will become shared over time.
– What will happen to the joint bank accounts on the breakdown of the relationship.
– Who is liable for any debts accrued during the relationship, for example credit cards or loans.
– How long a party will be entitled to remain living in a property owned by the other upon separation.
– Provision for the needs of any children of the relationship.
In Example 1 above, if the parties had a Cohabitation Agreement, the parties could have agreed that Sarah would have 6-months to find alternate accommodation, and that Tom would fund any rental deposit. The parties could also have agreed that Tom would provide Sarah with financial support for a further 12-month period following separation. This would have ensured that Sarah had sufficient support to be able to move to independent living after the breakdown of a 10-year relationship.
In Example 2 above, if the parties had a Cohabitation Agreement, the parties could have agreed that upon separation, that the property would be sold and Claire would receive the CI$500,000 down payment back, prior to the division of any equity. Such an agreement would have protected Claire’s financial investment, whilst still ensuring that Ben received some funds from the sale given their contribution towards the mortgage payments.
How do I get a Cohabitation Agreement?
It is important if you are considering entering into a Cohabitation Agreement to get specialist legal advice. Here at Priestleys we can give you that specialist advice and can guide and advise you throughout the process.
Specialist legal advice is important because without it, any such document is unlikely to be binding on you or the other party, leading to more uncertainty and increased legal costs in the event of court proceedings. Both parties to the document must have received independent legal advice as to its meaning and effect and be fully aware of what the agreement contains.
As each relationship is different, every Cohabitation Agreement will need to be tailored to each particular couple. No two agreements in our experience are ever alike and therefore an “off the shelf” agreement is unlikely to cover every aspect of your particular relationship and financial circumstances.
At Priestleys we have extensive experience of providing advice on a tailor-made solution that will protect you and your family in the event of a separation. We can advise you as to possible changes in the law and ensure, as far as possible, that any agreement is future proofed. We will take the time to get to know you as an individual and what you want and act in a collaborative way to get an agreement that you are happy with.
Do you have Children? Then you have more options!
A parent of a child living in the Cayman Islands is liable to maintain that child pursuant to s.16A of the Children (Amendment) Act 20243, whether or not they were married to the other parent at the time. If a parent fails to maintain that child, and you are unmarried, then upon separation you can bring an application under Schedule 1 of the Children Law (2012 Revision)4 (as amended by the 2024 Act) for financial provision for the children (it being noted that there is no Child Maintenance Service or equivalent in the Cayman Islands).
Under Schedule 1, the Court, upon application by a parent or guardian of a child, has the power to make orders providing for:
1. An order requiring either or both parents of a child to make to periodical payments (or secured periodical payment) to the other parent or the child for such term as may be specified in the order.5
2. An order requiring either of both parents of a child to make a lump sum payment to the other parent or the child, with such sum being at the discretion of the court.6
3. An order requiring a settlement to be made for the benefit of the child, of property to which either parent is entitled.7
4. An order requiring either or both parents of a child to transfer a property to the other parent, for the benefit of a child or to the child themselves.8
Simply, this means that the Court can order child support to be paid by one parent to the other for the benefit of the child and the Court can order a party to either buy or transfer a property to the other party so that the child has a roof over their head and somewhere to live.
The Court will ordinarily make such orders on the basis that the property will revert back to the parent funding or transferring the property to the other, when the child attains the age of 18 or finishes their vocational education. 9
As Schedule 1 is a complex piece of legislation, it is important that you take specialist legal advice at the earliest possible opportunity.
How does this play out in real life (unmarried couple with children)?
Example 3
Andrew and Olivia decide to live together. Olivia moves into a property owned in the sole name of Andrew. The couple live together for a period of 10 years and then separate, they have two children, aged 9 and 5. Olivia gives up work after 1 year to look after the children and is their main carer. Olivia makes no contribution to the household bills / mortgage or payment towards the house and the parties keep separate accounts, with Andrew paying CI$5,000 per month to Olivia for housekeeping and the children’s activities. Andrew is a wealthy individual but following separation refuses to provide any support to Olivia or the children.
In this example, Olivia could bring an application under Schedule 1 to secure a property in which to live for the children. Olivia could also bring an application for monthly child support to meet the children’s expenses, including any school fees and could bring a lump sum application to provide for specific items for the children. Such an application if successful would ensure that the children have somewhere to live for at least the next 13-years and Olivia would receive significant monthly support.
Need more help?
If you require any assistance or advice in relation to the purchase of a property, any aspect of the breakdown of your relationship or want assistance with drafting a Cohabitation Agreement, do not hesitate to contact the team at Priestleys on info@priestleys.ky and we will be happy to assist you.
The authors
Nick is a specialist attorney within the Company and Commercial department at Priestleys. Nick’s specialist background is in real estate, regularly acting across the whole spectre of property matters such as residential and commercial conveyancing, landlord and tenant, real estate development, financing and secure lending, transaction structuring, holding company and SPV structuring, joint ventures and collaboration agreements. Nick is included in the 2024 Legal 500 directory as a ‘Rising Star’ and the 2024 Chambers & Partners directory as an ‘Associate to watch”.
Gareth is a specialist family law attorney and heads up the family law department at Priestleys, dealing with divorce and children cases. Gareth joined Priestleys in January 2025 having previously being Head of Chambers at the leading specialist family law chambers outside of London. Gareth was called to the Bar of England and Wales in 2007 (now non practicing) and to the Bar of the Cayman Islands in January 2025. Gareth has been consistently ranked as a leading practitioner in family law by the Chambers and Partners and Legal 500 directories, which describe Gareth as “exceptional, approachable and extremely knowledgeable” and a “brilliant advocate.”
Nick Hemus & Gareth Jacques
13 March 2025
References:
1. https://www.eso.ky/user_images/census_2021/Section_1.5.pdf
2. https://cnslibrary.com/wp-content/uploads/FAMILY-PROPERTY-2018-for-public.pdf
3. https://www.gov.uk/publication-detail/children-(amendment)-act,-2024,-(lg2,-s5)
4. https://legislation.gov.ky/cms/images/LEGISLATION/PRINCIPAL/1995/1995-0009/ChildrenAct_2012%20Revision.pdf
5. S1 (2) (a) and s1 (2) (b) of Schedule 1 of the Children Law (2012 Revision)
6. S1 (2) (c) of Schedule 1 of the Children Law (2012 Revision)
7. S1 (2) (d) of Schedule 1 of the Children Law (2012 Revision)
8. S1 (2) (e) of Schedule 1 of the Children Law (2012 Revision)
9. S3 of Schedule 1 of the Children Law (2012 Revision)
Note:
All examples used are fictious. Any resemblance to real cases or real persons, living or dead, is purely coincidental.
The article can be downloaded below:
https://priestleys.ky/wp-content/uploads/2025/03/The-Rights-of-Unmarried-Couples-in-the-Cayman-Islands-003.pdf
