Citizens Advice Bureau

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LOCAL INFORMATION

8.25.12
Divorce

    Extent: Jersey
    Updated 11 February 2015  

 


Words you may need to know

 
Divorce – ending a marriage legally

Deserted – you husband or wife has left you for a period of two years or more

Petitioner – the person wanting to divorce and asking for it

Respondent– the person who is being divorced

Without cause– without a reason

Litigant in person – this is someone who is presenting their own case in court without a lawyer

Ancillary matters - this is usually anything other than the divorce such as property, child care arrangements, money etc


If you are seeking a divorce

If you want to divorce, you may still be living with your partner, or may have been separated for some time. It is possible that your partner has left you and you may not know where they are.

If you are still living together, the first thing if it is at all possible is for you both to start living apart. This will help ease tensions in the home and allow each person to work out how much money they need to live on and give a breathing space to work out problems during a trial separation. You might like to first read on how separation and divorce can affect housing rights, see 8.28.10 Ending relationships and housing.

It is possible to separate but live in the same property, see Judicial and legal separation 8.25.6.

If you have been separated for a some time, have a maintenance order in place, and you both have settled housing, this can form the basis for the divorce settlement, and guide the Court as to what allowances for the parties is suitable.

Where you have been deserted by your spouse without cause for a period of two years you can apply to the Court for a divorce. However, you can get a divorce if you have lived apart for one year if both parties agree or two years if the other party does not agree.

The person who is asking for the divorce is called the Petitioner and the person being divorced is called the Respondent.

When you ask for a divorce it is called a petition. You petition for a divorce.  

 

Legal help

If you and your spouse can agree on the division of any assets, it is possible to manage your divorce yourself.

To manage your divorce yourself you can get help from the Judicial Greffe website. In some cases you may be wise to get legal help for your divorce especially if there are children involved or financial matters to settle. You might qualify for legal aid but if you have property that is extremely unlikely. It is important to remember that if you get legal aid, you will have no choice in which law firm is allocated to you or who manages your divorce.

If you think this might be the case for you, you might want to think about getting a lawyer who is used to doing divorces and specialises rather than use one given to you under the legal aid scheme that may have no experience.

Citizens Advice Jersey cannot recommend specific lawyers, but can give you a list of lawyers who specialise in divorce cases.
See 4.2.2 Specialist Lawyers

 

When can a divorce be heard in Jersey?

Other than in special situations, a request for a divorce cannot be heard by the Court during the first three years of the marriage, but see Judicial separation 8.25.6.

At least one spouse in the marriage needs to have been living in the island for one year before they can file for divorce but either party can file as long as they have lived in the island in the year before the divorce was filed.

Divorce petitions are heard by the Family Division of the Royal Court six times a year. However if a divorce is undefended, a decree nisi of divorce can be made by the Registrar of the Family Division without any hearing.

 

What are the grounds for divorce?

A decree is a court order and the Court may grant a decree of divorce for any of the following reasons:


  • That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. That means your partner has been unfaithful and you cannot forgive them or live with them.

  • Desertion without cause for a period of at least two years. This means your partner left you more than two years ago for no good reason.

  • Behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. This means that your partner has behaved in a way you find totally unacceptable and you no longer want to live with them

  • Incurable in soundness of mind . This means that your partner is not mentally fit to be married nor is likely to be so in the future.

  • Imprisonment for a term of not less than fifteen years. This means that if your partner is sent to prison for fifteen years or more, you can apply to be divorced.

  • Separation - living apart:

    • One year where you both agree to the divorce

    • Two years if your partner does not agree

This last reason (separation - living apart)  is the most common reason for divorce.

Unless the reason falls under separation - living apart, you cannot agree with your partner to arrange matters so that it falls under one of the other headings. If that happened a divorce would not be granted.

Except in the one or two year separation cases, the Court is able to dismiss a petition if they believe the person asking for the divorce has been guilty of cruelty, unreasonable delay in presenting the petition or, in certain cases, desertion or wilful neglect or misconduct.

 

What is the procedure?

The person in the marriage who wants the divorce (the petitioner) should get legal support from a solicitor or advocate (unless you are a litigant in person see para 6). The lawyer will then draw up the petition based on evidence given to them, and the papers will be sent to the partner (the respondent). At that stage, the respondent will need to instruct their own lawyer to answer the petition, and to agree the arrangements for any children and financial and property matters. When these matters have been agreed, the divorce papers are given to the Royal Court, Family Division for a decree nisi to be granted.  The decree nisi is a conditional divorce which does not become final until the decree absolute is granted some six weeks later. This period gives the opportunity to the public to object to the divorce.

In some cases, the financial settlement, (particularly when property is involved) is difficult to agree, so the divorce hearing goes ahead with these 'ancillary matters' to be finalised at a later date. Neither party has to be in Court for the hearing. The decree absolute must then be applied for some weeks later, see
8.25.12.L3 Decree nisi / absolute.

 

Divorce Proceedings - Litigant in Person

CLICK HERE for legal guidance on divorce, separation and relationship breakdown

A Litigant in Person is someone who is managing their own divorce case (or any other legal case) without the help of a lawyer, solicitor or advocate. See booklet Procedural Guide for Divorce Proceedings produced by and available from the Judicial Greffe.

http://www.gov.je/LifeEvents/SeparationDivorce/Pages/Guidance.aspx

The Judicial Greffe have produced a draft divorce petition and Guidance Notes for completion

http://www.gov.je/LifeEvents/SeparationDivorce/Pages/DivorceForms.aspx

The following forms are also required:-

Form 3- Notice of Proceedings  http://www.gov.je/LifeEvents/SeparationDivorce/Pages/DivorceForms.aspx

Form 4- Acknowledgment of Service http://www.gov.je/LifeEvents/SeparationDivorce/Pages/DivorceForms.aspx

and Form 5- Statement of Arrangements for Children[if applicable]

http://www.gov.je/LifeEvents/SeparationDivorce/Pages/DivorceForms.aspx

The forms need to be filled out and the petition and original marriage certificate need to be taken to the Family Division of the Judicial Greffe together with Court stamps to the value of £300 in order to start proceedings. If you have difficulty in paying court fees, an exemption certificate may be issued by the Viscounts Department.

 

Distribution of assets, divorce settlements

The distribution of assets means how your property or goods is split up when you divorce.

Information about how the court deals with settlements upon divorce is at 8.28.10 Ending relationships and housing.

 

Costs of divorce

Who pays for the divorce?

Shared costs

In most divorce cases there is no order for costs asked for, and so each party pays their own legal costs.

 

Defended costs

If the Respondent in the divorce case feels strongly that they should not pay costs, then it is up to them to tell their lawyer to discuss this and agree with the other party on costs.

The respondent in a one year separation divorce is in a stronger position, because their permission is needed for the divorce to go ahead.

The respondent is in a weaker position if the reason being given for the divorce is unreasonable behaviour or adultery. Even then costs are not automatically given to the Petitioner unless they do not reply to the petition.

A respondent who is worried about costs when they receive divorce papers must send back the Form 4 signed and 'asking to be heard in the matter of costs'. This stops an order on costs being asked for by the petitioner and perhaps given by the Court when the respondent does not reply.

 

Estimating Costs

At present there is no standard scale of fees for divorce work which means there is no system for working out how much is likely to be charged. The total cost of the divorce can be broken down into two parts: the cost of getting the actual divorce, and then the cost of the work involved in sorting out the financial / childcare matters. It is not unusual for legal costs when using a lawyer to be more than £25,000.

 

What are taxed costs?

When the Court makes an order for costs to be paid by either party to a divorce, the costs are "taxed" or decided by the Judicial Greffe, i.e. an amount which is based on a scale. It is not the amount that you have spent and is likely to be much less.