The Jersey Law Commission recently delivered a consultation
paper entitled "Divorce Reform", which is refreshingly
straightforward and surprisingly comprehensive. In an area of law
in which the primary source of legislation dates from 1949, this
firm believes that the overhaul proposed by the paper is long
The overarching theme behind the changes put forward for
consideration by the Commission is the enablement of parties to a
marriage or civil partnership to be treated as responsible adults,
who can, not only determine how and when their marriage is to end,
but also agree in advance, subject to certain safeguards, the
financial provision which will be made for them on divorce or
dissolution of their relationship.
As to the potential changes to divorce itself, specifically, the
Commissioners propose that:
The current three year period during which parties must remain
married or in a civil partnership before presenting a Petition of
divorce or dissolution to the Court should be abolished. The
Commission is canvassing a change in legislation which will enable
parties to issue a divorce petition at any time after their
marriage or civil partnership.
"No fault" divorce should be introduced.
Lawyers should be required, as they already are in England and
Wales, actively to advise those considering divorce about
reconciliation. Proposed changes would also mean that the period of
one year's separation required by current legislation, before
proceedings on that ground can be commenced, should not preclude,
as it currently does, the parties spending even one night together
in an effort to explore reconciliation.
Welcome and significant recommendations have been put forward in
relation to the thorny issue of resolving financial disputes on
divorce or dissolution of a civil partnership. These include:
The introduction of legislation to enable the Court to set
aside financial dispositions intended to put assets beyond the
reach of a spouse or partner.
Statutory provision to enable the Court to make orders against
pensions, known in England and Wales as pension earmarking and
pension sharing orders.
A legislative presumption in favour of upholding the terms of
any pre-nuptial agreement, provided certain safeguards are in place
(see link to previous briefing note
The Commission also considers the role and importance of
alternative dispute resolution in family law, in particular
arbitration, mediation and collaborative law.
The legislative framework surrounding the dissolution of
marriage and civil partnerships is in urgent need of
The Royal Court has often closely followed developments in the
matrimonial law and practice in England and Wales, but Carey Olsen
believe the Commission's proposals, if implemented, would
create a modern divorce law which would offer this jurisdiction a
law in advance of its time, inasmuch as it would enable Jersey
residents, subject to safeguards, to have a far greater say in how
and when they divorce and manage the financial issues arising on
The Law Commission has invited responses to its consultation
paper by 31 March 2015.
Carey Olsen will report on legislative developments as and when
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.
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My friend was married to a Muslim man and they had a daughter together before he divorced her. He recently passed away, leaving another daughter from his first wife, whom he divorced before marrying my friend.
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