Jersey: A Degree Of Certainty? Pre-Nups In Jersey

Last Updated: 10 December 2008
Article by Victoria Myerson

The recent spate of high profile, big money divorce cases appears to be creating a ripple effect among those wishing to avoid a similar experience. In the wake of the widely publicized Miller case, which yielded the wife £5 million after a 3 year marriage, the column inches devoted to the Mills-McCartney divorce proceedings once again gave centre stage to the increasingly generous awards made to wives in the English divorce courts. As awards have risen, so the demand for pre-nuptial agreements has soared.

A pre-nuptial agreement is defined, at its simplest, as an agreement made by a couple before they marry concerning ownership of assets in the event of their divorce. Unromantic perhaps, but also arguably an increasingly realistic approach by those individuals seeking some measure of protection in a climate where many marriages unfortunately end in divorce.

Such agreements are not currently enforceable in Jersey in the same way as they are in other jurisdictions such as California. The Royal Court retains a discretion to order the ultimate financial settlement but adherence to certain criteria will increase the weight afforded to a pre-nup.

Firstly, independent legal advice must be obtained by both parties and full and frank financial disclosure must be made. This means all assets, liquid and illiquid, anywhere in the world. Pre-nups risk being set aside by the court if one party is found to have exerted pressure or undue influence on the other to sign the agreement and agree to wording or "trigger factors" which they do not fully understand. The overriding objective of the court is to ensure a fair settlement for both the parties and therefore any children of the marriage. The agreement should be executed no less than three months before the wedding date. A hastily executed agreement may have the hallmarks of hidden assets about it and the immediate run-up to the wedding is not the time to think clearly about such matters.

Pre-nuptial agreements require bespoke drafting in precise terms and will often contain a number of different asset separation scenarios depending on how far into the marriage the relationship breaks down. Should the agreement incorporate the anticipation of children of the marriage, for example? Have any unforeseen circumstances arisen that render the pre-nup invalid, such as one party exploiting their economically dominant position? It is the role of the parties' legal advisors to consider the agreement from all angles.

Financial proceedings ancillary to divorces are governed in Jersey by the Matrimonial Causes (Jersey) Law 1949 [as amended] which was based to a large degree on the legislation in England and Wales at the time of drafting. The exercise of the court's discretion as to the division of the assets between the parties is dictated by the application of the "section 25 factors" taken from section 25 of the English Act and incorporated into the Jersey system via case law. These factors include the length of the marriage, the age of the parties, the income, earning capacity and financial obligations, contributions and foreseeable inheritances of each spouse; in other words, their historic, present and foreseeable future financial circumstances.

Pre-nups are currently regarded a "circumstance of the case", which is the final "catch-all" section 25 factor. Hence the importance they are given remains for the trial judge to decide in the overall exercise of his discretion.

The Royal Court has not yet had the occasion to rule on such an issue but since Jersey law is based upon English law, predicting how such discretion will be exercised may be assisted by reference to English cases. In recent years a marked shift can be detected in the attitude of English judges towards pre-nuptial agreements. Always careful to protect their position of ultimate arbiter, they have nevertheless afforded such agreements increasing weight:

In the 1992 case of N –v- N 1992 FLR 745, the court indicated "that there were circumstances in which the terms of such agreements would be upheld...". By 2002, Connell J stated in M –v- M 2002 1 FLR 654 that "the court should look at any such agreement and decide in the particular circumstances what weight should, in justice, be attached...". In 2007 the Court of Appeal held in the case of Ella –v- Ella 2 FLR 35 that it was right to regard the pre-nup as a major factor.

The most recent case and perhaps the most highly publicised has been that of Susan and Stuart Crossley, who married in January 2006. Attempting to avoid the terms of their pre-nuptial agreement, she sought a share of her latest husband's fortune but was ruled against by Lord Justice Thorpe who opined "If ever there is to be a paradigm case in which the courts will look to the prenuptial agreement as not simply one of the peripheral factors of the case but a factor of magnetic importance it seems to me that this is such a case".

Recognised in much of Europe and the United States, it is clear that pre-nup agreements have in recent times gained greater legal stature closer to our shores. This positive evolution played out under the media spotlight can only provide increasing comfort to those wishing to lessen the emotional and financial cost of divorce proceedings.

This article first appeared in the Autumn 2008 issue of Appleby Jersey's Resolution newsletter.

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.

Victoria Myerson
In association with
Mondaq Advice Centre (MACs)
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.