Citizens Advice Bureau

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LOCAL INFORMATION

8.27.10.L2
Maintenance and divorce

Extent: Jersey
Updated 22 April 2015

 

What is maintenance?

Maintenance is money; money that is necessary for someone and/or  children to live on. How much maintenance or money which is ordered to be paid by the court, will depend on many things.

 

Who can get maintenance?

1. Under the Matrimonial Causes (Jersey) Law, 1949 either person in a divorce may apply to the Family Division of the Royal Court to order the other person to pay maintenance for the spouse, children or both. A spouse is a married partner.

The Court will look at each person's situation  before deciding what is fair to both. It is usual for the husband to pay maintenance for the children of the family until they are sixteen years old unless they are supporting themselves or are no longer in full time education. The children don't have to be the children of the marriage.


How to apply for maintenance

2. It is helpful for anyone seeking maintenance to get legal advice. The way to get maintenance is often part of the divorce process. It might be that there has already been an informal arrangement, or there may be a Separation and Maintenance Order made by the Petty Debts Court, and this will continue until there is a new order made by the Royal Court.

3. When you go to your Lawyer, you will be asked to list everything you own, and draw up a list of all your income and outgoings. This is all the bills you have to pay and the money you need to live on. You will have to give proof of everything and when you do, the information is put into a document called an affidavit of means. Proof will be things like wage slips, bills, bank accounts, income tax statements, valuations of items such as cars etc. The value of any accommodation or property owned will also be needed.

4. Usually, the lawyer acting for the wife applies for a sum of money (maintenance) to support the family. This may be done as soon as the divorce petition has been filed "pending suit", to make sure the family can live while the divorce is going on. This arrangement can be made very quickly in a matter of a few weeks after the petitioner (the person asking for the divorce) has first visited their lawyer. The Court will order what it thinks is a reasonable amount to be paid straight away.

5. The lawyers for the parties will discuss each person's needs based on the affidavits of means that each one has given in. Any money that might be payable in insurance policies and pensions will also be taken into account. It is important for lawyers to think about a wife's pension rights based on her husband's contributions during their marriage, as, in some situations, divorce may result in her losing her pension rights.

6. If no agreement can be reached before the divorce petition is due to be heard then any dispute about maintenance will form part of the 'ancillary matters' as they are known, to be dealt with afterwards. This often happens when there is a property or a business to be sold.


What does the Court take into account in making official decisions on Maintenance Orders?

7. These days the Court does not usually take into consideration the reason for the marriage  breakdown when thinking about Maintenance Orders. In most cases the wife will have some income of her own and will be wanting a share of any property and perhaps  support for any children in the family. It is often preferred by the Court to allocate money and property to each party so that neither will be required to pay maintenance to the other, unless there are children.  This is called a 'clean break'.

8. It is the rôle of the Registrar to work out what both people need  to live on and make a decision for a fair settlement. Where the parties have themselves reached agreement already, that arrangement would usually be approved by the Registrar.

9. If the application is for child maintenance only, the Registrar may refer to tables published by the UK Family Bar Association in relation to rates payable under UK Child Support Agency law. Rates of maintenance are calculated as a percentage of net income, so that, if there is one child, the maintenance payer will pay 15% of net income.  If there are 2 children, the payer will pay 20%.  If there are 3 or more children, he or she will pay 25%. However these rates are not binding. The kind of things which are also taken into consideration by the Registrar are similar to those used in the English Divorce Court system :


FACTORS

EXPLANATION

How much does each person need to live on, who are they looking after, and what duties do they have.

This needs to be thought about not just for the present , but the future too. It might be that children over 18 will be in education or are disabled and will need on- going care.

How much each person earns, or might earn in the future. How much money or goods they have or might have in the future.

 

The courts are expected to look at whether a woman could get work following the ending of the marriage. If there are young children at home, the court is unlikely to expect a woman to go out to work. A woman with a young family who has been going out to work before the ending of the marriage might be expected to go on working if possible. If the children are grown up and she has not worked for many years there may not be any suitable employment available and so her earnings are likely to be very low. The courts may well not expect her to start back at work.

The ages of both partners.

How old each person is will affect how much they will earn in the future. They may drop from having a wage to having a pension.

The length of the marriage.

If it was a short marriage and there are no children, the court may not consider it necessary to award maintenance or maybe to award it for a short time only. This will depend on how dependant the woman has been on her husband. Where a couple lived together before their marriage, it is up to the Court whether or not to take this into account. It is likely to do so if children were born during that time or if one of them made a large payment of money  for example a home which was shared before marriage, or if it was a long period of living together.

The standard of living of the family before the breakdown of the marriage.

Did they have holidays/ nice cars/good accommodation.

The kind of lifestyle the couple led may be taken into consideration. They may want enough money so that they can continue with the same kind.

Any ill health, especially mental or physical disability.

The health of each member of the household is important. This includes disability of either partner or any children.

Conduct if it would be 'inequitable' to ignore it. Inequitable means unfair.

 

Conduct might be things like being abusive, having an affair, deserting/ leaving the other person  etc

This is hardly ever used. The conduct of one or both people should only be considered where the Court thinks it would be unfair not  to consider it. The conduct of the couple should not be taken into account when deciding what money is needed for the upkeep of the children. Also, since the child's standard of living will reflect that of the mother, the effect on the child of reducing the maintenance for the woman because of conduct must also be considered.


Conduct might be used by husbands to show that they are not to blame rather than that the wife has behaved badly, but this was not what the law and courts were meant for and they are reluctant to use it except in cases where the conduct has been really bad.

How much or how involved each person has been in caring for the family. This can be in the past, at this time , or in the future.

This need not be about money and will include any part played in looking after the home or caring for the family.

The value of any benefits which either of the partners has lost or the chance of getting in the future as a result of the ending of the marriage.

The main benefit the woman is likely to lose as a result of the divorce is rights to a pension. The courts can make an award  to pay her for this - for example, to order the husband to pay her a lump sum of money or give her a bigger share of the marital home.


How long does the Court Order for Maintenance last?

10. The usual order made for maintenance of children will go on until the child is sixteen, or stops being in full time education. An order made for the maintenance of a wife (or husband) could be open - ended, but could be changed at any time.


What happens if someone's situation change?

11. From time to time the life of the parties named in the order may change, and they are able to apply to the Court to alter the order if there are major changes. Examples might be job loss, re-marriage, or illness. If one of the parties re-marries, maintenance payments should continue to be paid unless and until the order is changed.

Even if no order for maintenance was made at the time of a divorce, it may be possible to apply for an order if circumstances change.

See 8.27.10.L11 Maintenance Order - applying for a variance ( change)


What happens if maintenance is not paid?

12. If you have not been paid maintenance due to you, you would need to get legal advice to get back unpaid sums. A summons which is a legal document would be given to the non-payer, and if they still fail to pay, they would be taken to the Royal or Petty Debts Court where an arrest on wages order might be made, or an arrest and sale of personal property ordered. The Court would usually award what it has cost to do this  to the applicant or their lawyer. Under the new Maintenance Orders (Enforcement) (Jersey) Law 1999 it is possible for a mother who has not received money under a maintenance order to apply in the Family Division of the Royal Court or in the Petty Debts Court, for an Ordre Provisoire and get an arrest on wages straight away by the Viscount's Department. Everyone who applies for an Ordre Provisoire must have an affidavit which is a sworn statement prepared by a lawyer. This sets out why the money is due. Both the Ordre Provisoire and the affidavit have to be served at the same time on the person who is supposed to be paying the maintenance . The Court may arrest wages for the amount asked for if it feels it is right to do so, and in this way you may get back the money owed, and make sure that money is paid again in the future.


What happens if the husband has moved away from Jersey

13. As long as the wife has lived in Jersey for three years a petition for divorce can be filed in Jersey even if the husband now lives away from the island. An order for maintenance can be made by the Court, and can be enforced in the UK or Portugal by getting what is called a reciprocal registration order from the Judicial Greffe. This means the courts in the other country will act to make the person pay.

14. The Child Support Agency in the UK cannot act for mothers living in Jersey whose ex-husbands live in the UK. In the same way, a mother living in the UK would not be able to get the Child Support Agency to take action against a father living in Jersey.


What happens if the wife has moved away from Jersey

15. A wife living away from Jersey may apply for a divorce in the country she now lives in but may have to wait until she has been in that country for a certain time. She may apply to the Court in the area where she lives for a maintenance order, and if it is granted, this could be registered in the Petty Debts Court in Jersey.

16. An ex-wife with a maintenance order granted in Jersey who is not getting payments she is due, should check what the order says, or contact her Jersey lawyer. It may be possible for payments to be stopped from his wages through the Viscount's Department, although this won't work if the ex-husband is unemployed, self-employed or it is not known where he lives. If money is owed, it is possible to sue the ex-husband in the Petty Debts Court or the Royal Court.


Maintenance Orders (Enforcement)(Jersey) Law 1999

17. The Maintenance Orders [Enforcement] Amendment no 2. came into force on the 6th April 2007. The Law gives the Royal Court and Petty Debts Court the power to authorise an arrest on wages of the payer of maintenance straight away when making the order or at any time afterwards.

If the ex-wife, having left the island, needs to try to change an Order granted by the Court in Jersey she should contact the Jersey lawyer who dealt with her divorce, or the Registrar, Family Division at the Judicial Greffe who can advise her on how to do it.


Reciprocal Enforcement of Maintenance Orders. (Reciprocal means each country helps the other.)    18. See 8.27.10.L1


How much maintenance will be paid?

19. Each person's circumstances are different. The Separation & Maintenance Orders [Jersey] Law 1953, as amended, has regulations giving the maximum amounts the Court can order to be paid weekly under the Law as follows:-

Maximum amounts per week ;

Maximum for applicant £200 per week. Maximum per child £100 per week. Larger amounts may be agreed between parties through their Lawyers.