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Jersey Divorce Reform – Long overdue?

The Jersey Law Commission recently delivered a consultation paper entitled “Divorce Reform.”  The Report is comprehensive and seeks to consider whether the current divorce law meets the needs of society in the 21st century. The primary legislation for matrimonial matters dates from 1949 and society in Jersey has moved on considerably since that law was passed.  Jersey now has a Civil Partnership Law, far more people live together rather than getting married and divorce is much more common than in previous generations.  The overhaul proposed by this report is therefore long overdue.

Divorce

With regard the potential to divorce reform in Jersey, the Commissioners propose the following:

  • That the current inability to petition for divorce within 3 years of marriage or civil partnership be abolished and that there should be no restriction on issuing a petition for divorce at any time after marriage.
  • “No fault” divorce should be introduced.
  • The establishment of a divorce process which encourages reconciliation. The separation grounds were introduced into Jersey Law by the Matrimonial Causes (Amendment No.5) (Jersey) Law 1978 and then amended again in 1996 to the current position of divorce available for couples who have lived apart for a continuous period of one year with consent or two years without consent.   Unlike in England, there is no provision in Jersey for the period of separation to be interrupted to allow the parties to explore the possibility of reconciliation.  This means that if the parties spend even one night together under the same roof the period of separation has to start over.   The Commissioners propose that lawyers should be required, as they already are in England and Wales, to advise those considering divorce about reconciliation.

Ancillaries

The Commissioners have also made significant recommendations in relation to divorce reform regarding the issue of resolving financial disputes arising out of proceedings for divorce or dissolution of a civil partnership.  These include:-

  • Introducing provision within the family law legislation enabling the court to set aside a disposition which a spouse has made to avoid meeting their responsibilities to their spouse.
  • That there be a presumption in favour of the terms of a marital agreement being binding on the parties unless one of a number of safeguards is breached. Pre-nuptial agreements are not currently binding in Jersey with the Court retaining the discretion to make any order available to it, regardless of any prior agreement entered into between the parties.
  • That there should be provision within the legislation that would enable the court to make orders against pensions by enabling “pension-sharing.”
  • That the court should be able to impose a clean break on the parties if appropriate.
  • That the procedure in relation to financial claims be simplified in order to limit the types of questions that can be raised in questionnaires. The Commissioners propose that this could be achieved by adopting a procedure which is already in place in England and Wales whereby the judge determines which questions may be put to the other side.  This would then limit the questions and replies making the disclosure process more efficient and focussed.
  • That the Law should recognise that there are now more methods of resolving family disputes available to separating spouses in the form of Arbitration, collaborative law and mediation and that the law should incorporate encouragement to consider out of court dispute resolution wherever possible.

Natalie Jenner | Partner |  Divorce and Family law – Department Head
January 2017

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The information and opinions expressed in this briefing does not purport to be definitive or comprehensive and are not intended to provide professional advice. For specific advice, please contact Parslows, We are not responsible for, and do not accept any responsibility or liability in connection with, the content of this document or any reliance upon it.

 

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