Jersey: Equal Marriage, Equal Divorce?

Last Updated: 21 October 2015
Article by Kirsty Thomas

BACKGROUND

On 23rd September 2015, The States voted to legislate to enable same-sex marriage by January 2017 at the latest. However, The States has used the opportunity of extending marriage to include same-sex couples to also consider the issues around divorce and the dissolution of marriage (both heterosexual and same-sex) generally.

ANALYSIS

An interesting issue on which same-sex marriage and heterosexual marriage potentially clash concerns adultery. Adultery is grounds on which one can divorce. In law, adultery is defined as a sexual relationship between a man and a woman. If one party to a marriage were to form a sexual relationship with another person of the same sex, the other party would not be able to rely on the grounds of adultery. If adultery is to survive as grounds for divorce in the future, it will either have to be redefined to be gender-neutral or will simply not be available if a spouse has engaged in a sexual relationship with persons of their own sex, which potentially limits this to heterosexual couples. Other, more gender-neutral grounds for divorce may still be available, such as separation or unreasonable behaviour, assuming these grounds will survive The States' reforms.

If adultery is to remain as it is currently defined, does that lead to two systems of divorce running in parallel; one for same-sex marriages and one for heterosexual couples? How easily does a separate but otherwise equal system for the ending of a marriage sit with those who have campaigned for equality in marriage? Does a separate basis for divorce make same-sex and heterosexual marriage inherently different or unequal?

This is an issue The States will have to grapple with. The difficulty with including adultery as grounds for divorce between same-sex spouses revolves around the definition of adultery, which historically has been confined, like marriage itself, to heterosexual relationships.

A further option would be for there to be different grounds for divorce dependent on your sexual orientation, and a third possibility is to amend the current grounds for divorce. Equalising the situation could be achieved in several ways. The first would be to abolish adultery as grounds for divorce altogether, whether same-sex or heterosexual. Another option might be to redefine adultery to mean 'sexual infidelity'. If this is to happen, The States will have to decide what sexual infidelity amounts to. A third option might be to do away with the current grounds for divorce altogether and move to a no-fault system where no blame would be attributed to anyone when seeking a divorce.

A no-fault system of divorce, it is hoped, could take some of the stress and animosity out of the current divorce system, which would enable couples to deal with financial issues and questions surrounding their children in a more conciliatory fashion.

There are some who take the view that whether or not the divorce process is 'fault-based', it is nevertheless inevitable that arguments about money and children will continue because the breakdown of any relationship is stressful and difficult and these are often issues that are very important to people coming out of a relationship. Divorce can often be a relatively calm and stress-free process until issues surrounding the finances and children arise. While a no-fault system of divorce might avoid the need for one spouse to formally assign blame to the other for the breakdown of a marriage, the factors that will prompt spouses to take the serious step of a divorce will inevitably still exist. It is unlikely that even a no-fault divorce will be a bed of roses.

Another of the issues, approved in principle but the detail of which is yet to be debated, is a legal requirement that divorcing couples access and use mediation services, subject to safeguards (e.g. in cases of domestic violence) and Human Rights considerations, prior to divorce proceedings being issued. It is hoped that the use of mediation services will either assist couples in reconciling their differences, if that is an option, or enable them to settle their finances or any issues regarding childcare outside of court, where it is thought that unless couples consider the use of collaborative lawyers, matters can easily become polarised and fraught. This clearly benefits neither party, particularly not the children, and can be positively harmful.

As a family lawyer, I am concerned about the effectively mandatory requirement for divorcing spouses to use a mediation service. While mediation should always be encouraged, to say to someone "you cannot get divorced unless..." seems wrong. During the initial stages of many separations, matters are very emotional and can be volatile. Forcing someone, who may have had no idea their spouse wanted to end their marriage, to attend mediation is unlikely to be of great assistance to them. There is the risk that the mediation becomes, or is perceived, as a 'hoop' through which parties must jump rather than a helpful tool in the resolution of family disputes. The reality is that many divorce cases settle prior to reaching a final hearing as negotiations take place between lawyers. Those soluble cases that can be settled often do, and those insoluble cases that will not settle will inevitably proceed to a hearing.

In an initial meeting with a client, I always discuss all the available options that seem appropriate including mediation, collaborative dispute resolution, arbitration and the traditional court process. This ensures my clients are able to make the right decision for them. If the traditional court route is preferred, unless there is an urgent need to issue proceedings immediately, the other party is notified in advance and an attempt is made to settle financial and matters relating to children without recourse to the court process. It is only if matters cannot be settled that the court process is used, and it could be said that those divorcing couples who are capable of dealing with matters in a conciliatory manner already do so.

There may be an argument that those who are in receipt of legal aid certificates should have to attend mediation prior to a certificate being granted. This was the system in place in the UK prior to the removal of legal aid from family proceedings, a regrettable decision, save in very limited circumstances.

A relevant practical issue to the widespread deployment of mediation in family cases is the number of practising family mediators in Jersey, of which there are currently only two of which I am aware.

An additional issue raised by The States in consideration of divorce and dissolution of marriage generally, is whether matrimonial law, as it applies to financial awards made upon divorce, needs to be amended to include certain presumptions regarding the divorcing spouses' finances; namely whether assets (including pensions) will be divided equally on divorce, and pre-acquired assets, inheritances and gifts, stay separate once the parties' needs are met. These presumptions would be subject to the Court's discretion. There has to be a concern that these proposed presumptions may be misunderstood by those who may not see how they work together, and how they are subject to the Court's discretion. For instance, someone who has been married for four years may think they are now entitled to 50% of the assets and will go into divorce proceedings having this as a benchmark or expectation, causing difficulties in sensibly settling the dispute rather than understanding the presumption concerning assets acquired prior to the marriage. Lawyers are currently able to advise on the whole picture to ensure that clients understand this, and how the court will look at matters. If people see the presumptions and decide to take no legal advice, confident that they will be given half, it would be to the detriment of all.

One can see scope for legal argument as to how the presumption has been applied by the judge hearing the matter in terms of whether or not the court's discretion has gone too far. In setting these presumptions, is The States going to fetter the ability of the court to look at financial matters and make an order appropriate in the circumstances? One of the presumptions being discussed involves pension sharing, which is currently not possible under Jersey Law. Presumably this will have to be subject to detailed debate and analysis by The States before any presumption is included in the final draft of the legislation.

CONCLUSIONS

The States' decision to introduce same-sex marriage is a very important one that will necessarily have an impact on divorce law generally, well beyond same-sex spouses. Even the title of The States paper, focussing as it does on same-sex marriage, does not suggest that major recommendations in relation to divorce generally are contained within it. Many people, including family lawyers, believe that Jersey's current matrimonial law is overdue an update, however, there is a danger in introducing measures with such wide-ranging ramifications on which there has been little or no proper public consultation.

www.bakerandpartners.com

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 Mondaq.com.

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

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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