Broadly, family law falls into three main categories:-
1. separation and divorce/dissolution of civil partnership;
2. financial relief; and
3. children issues.
For the purposes of this website, we have focused on the particular topics on which we are most often asked to advise. We have prepared some short guides in “question and answer” format. These give nothing more than a basic overview and are not intended to constitute advice. You are always recommended to seek formal legal advice on these very important issues. We would of course be happy to assist you with any queries you may have arising from the listed topics and, indeed, all aspects of private family law.
Separation and Divorce/Dissolution of Civil Partnership
Q. Is it possible to obtain a “legal separation”?
There is no such thing in Jersey as a “legal separation.” Two courses of action are available to a person seeking to formalise a separation. The first is to enter into a Separation Agreement which, essentially, is a document setting out what has been agreed between the parties with regard to matters concerning finances and any children. The document is signed by both parties but is not lodged at the Court. Strictly speaking, such documents do not have the force of law but are likely to be taken into consideration if either of the parties sought to depart from the agreement and the Court were then obliged to decide ancillary matters following divorce/dissolution of civil partnership proceedings.
The other course of action is that of obtaining a Judicial Separation (where married couples are concerned) or a Separation Order (where civil partners are concerned). Such proceedings would have to be based on one of the grounds of divorce/dissolution of civil partnership available. The procedure is used relatively rarely and usually only where the parties have not been married/in a civil partnership long enough to issue divorce proceedings/dissolution of civil partnership proceedings.
The benefit of obtaining a Decree of Judicial Separation/Separation Order would normally be that Court Orders can be obtained with respect to financial matters.
Q. What are the most common grounds for getting a divorce in Jersey?
The most common grounds for divorce in Jersey are:-
1. That, since the marriage your spouse has committed adultery and you feel you cannot live with him/her
2. That your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her;
3. That you and your spouse have lived apart for a continuous period of one year and your spouse consents to a divorce; or
4. That you and your spouse have lived apart for a continuous period of at least two years.
Other, lesser used, grounds of divorce exist and we can, of course, advise as to these.
Q. What documents are required to start divorce proceedings?
1. The Petition – this is a document wherein you must set out the particulars of your marriage, grounds for the divorce and the relief you would like.
2. Form 3 (Notice of Proceedings) and Form 4 (Acknowledgment of Service).
3. Your original marriage certificate or a formal copy from the issuing authority.
4. If you have children under the age of 18 you will need to complete a Statement of Arrangements form (Form 5), setting out the various arrangements in place for your children going forward.
A fee (currently £300) is also payable to the Court to issue the Petition.
Q. What are the grounds for dissolving a civil partnership?
Jersey law requires you to satisfy the court that one of the following grounds is applicable: –
1. That your partner has behaved in a way that you cannot reasonably be expected to live with him/her;
2. That your partner is of unsound mind and has for the last five years been receiving treatment;
3. That your partner has deserted you for two years without cause;
4. That you and your partner have lived apart for a continuous period of one year and your partner consents to the dissolution being granted; or
5. That you and your partner have lived apart for a continuous period of at least two years.
Q. What documents are required for initiating an application
for dissolution of a civil partnership?
1. The Cause Application – this is a document wherein you must set out the particulars of your civil partnership, grounds for dissolution and the relief you would like.
2. Form CP3 (Notice of Proceedings) and Form CP4 (Acknowledgment of Service).
3. Your original civil partnership certificate or a formal copy from the issuing authority.
4. If you have children under the age of 8 you will need to complete a Statement of Arrangements form (Form CP5), setting out the various arrangements in place for your children going forward.
A fee (currently £300) is also payable to the Court to issue the Cause Application.
Q. When can I apply for a divorce or dissolution of a civil partnership?
In Jersey, proceedings for divorce or dissolution of a civil partnership cannot be issued until the couple has been married/in a civil partnership for at least three years.
The only exception to this time limit is where it can be shown that “the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent.” This is an extremely high hurdle to overcome and you are advised to take legal advice if you believe your case is exceptional.
Please note that, in order to commence divorce or dissolution of civil partnership proceedings, you and your spouse/partner must be domiciled in Jersey or you or your spouse must have been habitually resident in Jersey for the twelve months preceding commencement of the proceedings.
Q. Should I enter into a pre-nuptial/pre-civil partnership agreement
before I get married/ enter into a civil partnership?
There is no decided case law in Jersey as to the enforceability of pre-nuptial/pre-civil partnership agreements. However, given that the Courts in Jersey will take into consideration decisions of the Courts of England and Wales when deciding family law issues, there is every possibility that we would follow their approach and the existence of a pre-nuptial/pre-civil partnership agreement would be one of the circumstances of the case which the Court would be bound to consider on marriage/civil partnership breakdown.
Importantly, the enforceability of any pre-nuptial/pre-civil partnership agreement is likely to depend on how, and in what circumstances, it was drafted. For example, the parties should receive independent legal advice, they should enter into it freely after having exchanged financial information and the agreement should be fair in the circumstances which exist at the time of separation.
Q. What is the process for resolving financial issues following
the breakdown of a marriage/civil partnership?
Parties are usually advised to exchange financial information on a voluntary basis so that their respective legal representatives can form a view as to an appropriate settlement. The process usually takes the form of both sides completing and exchanging affidavits of means. When complete the affidavit should provide a comprehensive overview of the assets (including any business interest and pensions), liabilities, income and outgoings of that party.
In the vast majority of cases, agreement is reached as regards matrimonial/civil partnership finance issues. Where agreement cannot be reached, the Court must decide how the assets and liabilities should be divided and what, if any, ongoing financial provision should be made.
When considering matrimonial/civil partnership finance matters, the Court has the power to make a number of orders which include sale or transfer of property, orders for a lump sum, maintenance orders for spouses/civil partners and maintenance orders for any children.
Q. What does the Court take into account before reaching
a decision as to matrimonial/civil partnership financial issues?
Before reaching any decision, the Court will consider all of the circumstances of the case, including:-
1. the income, earning capacity, property and other financial resources of each of the parties;
2. the financial needs, obligations and responsibilities of each of the parties;
3. the standard of living enjoyed by the family;
4. the age of each party and the duration of the marriage/civil partnership;
5. any physical or mental disability of either of the parties;
6. the contributions which each of the parties has made;
7. the conduct of each of the parties, if that conduct is such that it would, in the opinion of the Court, be inequitable to disregard it;
8. the value to each of the parties of any benefit which he or she will lose the chance of acquiring as a consequence of the dissolution of the marriage/civil partnership.
Where there are minor children, the Court will also consider the following:-
1. the financial needs of the children;
2. the income, earning capacity (if any), property and other financial resources of the children;
3. any physical or mental disability of the children; and
4. the manner in which the parties expected the children to be educated.
Q. How is child maintenance calculated?
Broadly speaking, a non-resident parent (ie the parent with whom the child does not live) can expect to pay the following by way of child maintenance:-
• For one child – 15% of his/her net income;
• For two children – 20% of his/her net income;
• For three or more children – 25% of his/her net income.
It is advisable to seek legal advice in relation to what is an appropriate contribution as various other factors (such as whether the non-resident parent has other children living with him/her) can have a bearing on the calculation.
It is also possible, in certain circumstances, to make claims under the Children (Jersey) Law for lump sums. Again, it is recommended that legal advice is sought in this respect.
Q. What is Parental Responsibility?
Parental responsibility is, essentially, the right to make important decisions with regard to children such as those relating to medical care, education and religion.
Q. Who has Parental Responsibility?
A child’s mother automatically has parental responsibility.
Where a child’s parents are married to each other (whether at the time of the child’s birth or subsequently) the father will also have parental responsibility.
If the parents are not married then the biological father can obtain parental responsibility, either by entering into agreement with the child’s mother or by applying to the Court.
If a person is granted a Residence Order in respect of a child, that person will also have parental responsibility for the duration of the Residence Order.
Q. With whom will the children live when mum and dad separate?
Every case is different but, usually, the children will have their main home with the parent who has been the primary carer. That said, in certain circumstances (ie where both parents have had a similar level of involvement in the upbringing of their children), it may be appropriate for a shared care arrangement to be put in place. In such circumstances, the children have two homes.
As with residence arrangements, arrangements for contact with a non-resident parent must be tailor made to fit the particular case and should always be centred around the welfare of the child(ren).
Parents are expected to try to reach agreement in relation to children issues if at all possible. This can be achieved by direct dialogue between the parties, via dialogue between lawyers or with the assistance of the Jersey Family Mediation Service.
We will always do all that we can, particularly where children are involved, to encourage and assist parties to find an amicable way forward. If, however, the Court’s involvement is required to make decisions with respect to residence and contact, the Court will have regard to the following:-
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and education needs;
(c) the likely effect upon him of any change in circumstances;
(d) his age, sex, background and any characteristics of his which the Court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents (and any other person in relation to whom the Court considers the question to be relevant) is of meeting his needs;
(g) the range of powers available to the Court under the Children Law in the proceedings in question.
For the avoidance of doubt, the Court will generally be of the view that all children should, if at all possible, have the benefit of regular contact with the parent with whom they do not reside.
Q. How does the Court decide applications for permission to remove a child
to a new home outside Jersey?
When the Court is deciding whether or not to agree to the removal of a child from Jersey, the paramount consideration is what is in the child’s best interest.
The Court will, within that consideration, look at:-
(a) whether the move is genuinely motivated or an attempt to restrict contact between the child and the other parent;
(b) whether the arrangements for the child (ie for housing, schooling and employment) are reasonable;
(c) the potential effect of refusing the application on the parent and new family of the child;
(d) the potential effect of depriving the child of contact with the other parent and his family;
(e) the opportunities available for contact to continue with the parent left behind; and
(f) the wishes and feelings of the child and other, broader “welfare checklist” principles.
Applications for leave to remove a child from the jurisdiction are inevitably emotionally charged. In spite of that fact and, as with all children issues, we would always encourage parties to try to find some common ground and, if possible, a mutually agreeable compromise.