Originally published in the Jersey Evening Post, 14 April 2012
Imagine if you will, that everything in the garden is lovely, you and your soul mate have a nice home and great kids, some indebtedness admittedly (but who doesn't these days?) when one day the brutal reality of the recession knocks upon your door in the form of the Viscount seeking to serve a bankruptcy order on you or your partner.
At that moment, the harsh reality of losing the roof over your head presents itself and you have to consider ways in which you can protect your family and their home.
Jersey insolvency law in the 21st Century provides not only special protection for the "matrimonial" home where there is a spouse and children, but extends that protection to civil partners, their families and the civil partnership home with the coming into force of the Civil Partnership (Jersey) Law on 2nd April 2012.
For insolvency purposes the matrimonial home is taken to be the property used as the only or main residence of the family and the same term is applied to the civil partnership home.
It is worthy of observation that both a "spouse" and civil partner also includes a person to whom the bankrupt is alleged to be married or in a civil partnership with by "habit and repute".
With a view to preserving the property for the family, it is essential that the solvent partner considers making a timely application to the court and to ask the court for an order to allow them to stay in the family home.
It is reassuring to note that the duty of the court in making any order is to give first consideration to the appropriateness of reserving the matrimonial or civil partnership home for the occupation of the spouse or civil partner and any children of the bankrupt.
However, the court has the power to make various orders in relation to the property upon hearing an application by the solvent partner or spouse.
These orders include:
- awarding the property to the applicant partner (subject to certain debts);
- ordering a sale of the property and how the proceeds should be divided; or
- permitting the family to occupy and enjoy the property for a defined period of time.
The court has to balance a number of competing factors (the family's circumstances) which would include:
- the income, earning capacity, property and other financial resources available;
- the ages of all involved; and
- the financial resources of the debtor's dependants (if any).
This updating of the law means that Jersey continues to recognise the importance of the various family units which exist in the modern world. Jersey can be justly proud that any "couple" can seek to apply to the Royal Court for it to recognise and protect the family home.
A Jersey "person's" home is truly their castle.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.