Jersey: What's More Important; Business Or Home?

When a marriage breaks down and one party issues divorce proceedings it can be a difficult time for everybody involved. Once the issue of the financial settlement is reached things usually become more fraught. A thorny issue which some believe is raising its head again is whether the contribution made by the "breadwinner" (usually the husband) is more important than that made by the homemaker in cases where the assets are large and capable of meeting the needs of both husband and wife.

When the Family Court makes an order it does so bearing in mind what lawyers call the "section 25 factors" these are factors set out in English Law and the practice of the Jersey Court is to take these into account when looking at how assets should be dealt with upon divorce. The Courts look at all of these factors and give greater or lesser weight to each, depending on the factors of the case. Many moons ago in high asset cases the Courts looked at the non-­ breadwinner's needs (usually this was the wife) and made an order on that basis with the breadwinner retaining the remaining assets namely the bulk of the matrimonial property.

In 2001 the well-­known English case of White v White dealt with the issue of how assets should be divided although the Judgment is often misunderstood. White v White was a case where the matrimonial assets were substantial and both parties needs could be met, the question arose of how to deal with the surplus monies. The marriage was a long one of 33 years, the wife had initially been heavily involved with the family farming business but had reduced her involvement and looked after the house and children but still worked hard within the business.

The court said there should be " bias in favour of the money-­earner and against the home-­maker and the child-­ carer..." where there had been equal contribution to the family. The Court also stated that there was nothing in the law stating that where assets exceed needs, the surplus should belong to only one party. The settlement should be fair not equal. On the facts of each case different factors would carry different weight when considering how the assets should be split. It could not be that just because the needs of one party are met the other should retain all the remaining assets.

The Court specifically stated that the starting point of each case was not an equal division of the assets but that as a general guide, equality should be departed from if the factors of the case required it, with a check against equal division to ensure that no discrimination had occurred. This has become known as the "yardstick of equality" which has been misunderstood by many. In White v White, the wife received approximately 40% of the matrimonial assets rather than half. The Court had given weight to the fact that the assets were tied up in the family farm and that it would be wrong to force sale to give her more in the circumstances.

One of the section 25 factors is the extent to which the parties have each contributed to the welfare of the family during the marriage and the extent to which each will contribute in the future. This has led the Courts to consider whether one party's contribution in creating the wealth of the family should be taken account of over and above the other's role. In the case of Lambert v Lambert (2002) the Court said that an attempt to reduce the award to a wife due to the husband's special contribution was only available in exceptional cases and would often be difficult to establish in practice.

The impact of "special contribution" by one party as a factor in determining an award was set out in the English case of Charman v Charman (2007) which gave guidance that the minimum an award could be varied from equality is 5% up or down from 50% otherwise the variation was so slight that it would be a token variation rather than a genuine one. The Court considered the most generous split to be a 66.6% -­ 33.3% split of assets.

Since this case there have been many well publicised English decisions involving wealthy couples and the awards made. In the majority of cases the main "breadwinner" has been the husband. The English Courts have built up a reputation for being a generous jurisdiction in which to divorce. However, what the majority of these cases have in common is that the settlements have not been an equal division of assets. There has been a degree of media frenzy which is largely down to a new breed of super-­wealthy divorcing couples where the Courts have given large awards to the "non-­breadwinner".

The reason why awards to the wives have been lower than 50% of the assets has depended on a number of case-­ specific factors. However, the Courts have frequently been influenced by the argument that the husband has made a special contribution and that should be reflected in any award given. In the case of Charman the wife received 36.5% of the assets on the basis of this argument.

The most recent case in England is Cooper-­Hohn v Hohn (2014) where the wife received 36% of the matrimonial assets in the sum of $530 million. On the facts the Court decided that the husband had made a special contribution to the wealth accrued during the marriage and in addition the exponential growth of the husband's business after the couple separated was solely due to the husband and his abilities. He was referred to as a financial "genius". This decision may yet be appealed.

The Court was persuaded that the husband had contributed over and above in relation to the business, they also accepted that he was in effect the business and therefore the business did not have a value of its own. He was the reason that people chose him to invest their monies given his exceptional talent at making money. It was he who had the value not the company. The Court was persuaded that the wife should not have the benefit of the growth of the husband's business post-­separation. This was considered to be due to the husband's skills alone and therefore had to be dealt with differently from wealth attained during the course of the marriage.

The Court did not apply a strict formulaic approach to the assets when calculating what the wife would receive. It looked at the case as a whole and made an order it considered fair taking into account the relevant factors cross-­checking this against the yardstick of equality and the movement away from an equal division.

In Jersey the Family Court has consistently referred to the need for fairness and through case law has adopted the same approach as in White v White and the subsequent cases. It remains to be seen whether the division of assets in Cooper-­ Hohn v Hohn will change how the Court are looking at financial cases and whether this is the end of equality between business and home. I would argue not. Cooper-­Hohn confirms the long standing position that fairness is what is sought when dealing with financial settlement upon divorce and that each case will depend on its facts and its facts alone. Sometimes fairness will involve assets being split on a 50% -­ 50% basis and other times not.

This article was first featured in the April 2015 Edition of Jersey Life Magazine.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions