What are the grounds for divorce in Jersey?
Under the Matrimonial Causes (Jersey) Law 1949, there are several grounds available for when a Petitioner petitions for divorce against the Respondent, the most common grounds available to Petitioners are discussed below. Some of the grounds are ‘non-fault’ based, and others are ‘fault’ based, meaning allegations are required to be made by the Petitioner against the Respondent.
Commentators in both England and Wales have recognised that petitioning under ‘fault’ based grounds is archaic and causes unnecessary animosity between parties. England are currently undergoing reform to move away from ‘fault’ based grounds, whilst there has been an online survey by the Government of Jersey in relation to the divorce grounds available under Jersey law, its unsure as to whether we are going to follow in the footsteps of our overseas counterpart.
Divorce grounds available to a petitioner under Jersey law
‘Fault’ based grounds
Adultery and intolerability
There are two separate elements which the Petitioner has to prove under this ground:
- That the Respondent has committed adultery.
- That the Petitioner finds it intolerable to live with the Respondent.
It’s important to note that that the relationship between the Respondent and the other person (known as the Co-Respondent) for the purposes of divorce proceedings must be a sexual one, i.e. that intercourse must have taken place. The intercourse must be between a man and a woman, therefore a spouse in a same sex marriage cannot use the adultery ground.
This ground is not available to the Petitioner if they are alleging adultery on their own part, it must be the adultery of the Respondent.
The Petitioner must be able to prove that the adultery has taken place between the Respondent and the Co-Respondent, and such evidence must go beyond the Petitioner’s suspicion in order to satisfy the Court that adultery has taken place. The Respondent’s own admission to the adultery can be admissible in evidence.
Desertion petitions are a rarity in practice, due to the unusual circumstances. Under this ground the Petitioner must show that the Respondent has deserted them for a period of two years, prior to the petition being issued by the Petitioner.
The Respondent’s desertion of the Petitioner must be an unjustifiable withdrawal from cohabitation (living together). However, desertion known as ‘constructive desertion’ will be justified if one of the party’s treatment of the other was so bad that the other party had to leave the marital home.
Where the desertion is unjustifiable, the Petitioner if petitioning under this ground must prove 4 elements:
- On the face of it that separation has occurred (i.e. no cohabitation is taking place).
- The deserting spouse intends to remain separated permanently.
- The deserted spouse does not consent to the absence/ separation.
- There is no reasonable cause for the deserting spouse to withdraw from cohabitation.
This is a commonly used ground amongst Petitioner’s, if there are real and cogent reasons as to why the marriage has broken down between the Petitioner and the Respondent (due to the fault on part of the Respondent).
The test for this ground, is whether the Respondent has behaved in such a way that the Petitioner cannot be reasonably expected to live with them. The Court will make a value judgment about the Respondent’s behaviour and its effects on the Petitioner. It cannot be mere marital disputes between the parties, there has to be fault of the Respondent for this ground to be available to the Petitioner.
The Petitioner must list under the ‘particulars’ section of the petition the Respondent’s relevant misdemeanours which lead to the breakdown of the parties marriage. The Court will have regard to the history of the marriage as well as having a regard to the parties’ personalities.
Whilst Behaviour is a common ground, it can often be difficult in practice to advise on, if the particulars being stated by the Petitioner are considered to be trivial.
It is important to note for the grounds of adultery and unreasonable behaviour, if the actions of the Respondent happened in the past, the Petitioner may not be able to rely on the same for their petition, as the Court may deem the period in which the parties have continued living together as the Petitioner condoning the actions of the Respondent.
‘Non-fault’ based grounds
One year’s separation
The Petitioner under this ground has to prove two matters:
- That the parties have lived apart for a continuous period of at least one year, immediately prior to the presentation of the divorce petition being issued with the Court.
- That the Respondent consents to a decree being granted.
In Jersey it is not uncommon due to purchase and rental prices for housing that separated spouses will continue living in the marital home. If that is the case, the parties must show that whilst they live under the same roof, they are operating separate households, which means that all marital ‘duties’ have ceased. Such duties can include; eating together and doing chores for one another, such as laundry.
Two year’s separation (no consent required)
The separation period must be proved, much like the above ground but for two years, however, under this ground no consent of the Respondent is required.
It should be noted that for all of the grounds above that the pronouncement of decree nisi, the first stage in divorce proceedings can be dismissed or even the Petitioner can be prevented for applying for decree nisi if the Respondent can show that they will suffer hardship as a result of the dissolution marriage, although this is very rare in practice.