By Barbara Corbett, Partner and Head of Family Law, and Jean-Marie Renouf, Partner, Benest Corbett Renouf, Jersey
There is so much legislation these days, and so many cases in the Royal Court that interpret and reframe the laws that the States pass, that it’s very hard to provide any concrete predictions for what changes to the law will happen across the board.
Most lawyers are specialists, so our predictions for 2017 concern family law, trusts law and employment law – our areas of expertise.
Possibly the most significant and most likely change in family law in 2017 will be the introduction of equal marriage. This follows commitments made by the States to change the law to enable same-sex couples to marry during 2017.
This is significant in one respect – it’s the first time gay couples will be able to marry in Jersey – although in some ways it may not change things a great deal. Although same-sex couples can’t marry now, they can enter into a civil partnership and so enjoy almost all the same rights of married couples, including when the relationship ends. The big difference is likely to be in the use of the term ‘marriage’ and a resulting feeling of equality rather than simply technical changes.
Divorce law
However, the equal marriage legislation does present an opportunity to overhaul the law on divorce. The current law is outdated, it tries (and fails) to discourage divorce by putting obstacles in the way that cause unnecessary distress, upset and expense. No-one can divorce in Jersey until they have been married for at least three years. There’s no such limit in Guernsey.
A marriage can be annulled if one of the parties suffers from epilepsy, an outrageously outdated concept – which wasn’t included in the Civil Partnership (Jersey) Law – and unless a couple have lived apart for at least a year, they can only get divorced if one of them blames the other.
It’s not possible to make a joint application for divorce. There always have to be two opposing sides. This means people can be pitted against each other from the beginning, making it much more difficult to reach amicable agreements in respect of their children and finances.
In our view, the introduction of equal marriage should be used as an opportunity to bring in ‘no fault’ divorce and to enshrine in legislation encouragement for couples to try to resolve differences between them through mediation and conciliation rather than the courts. Let’s hope the States will take that opportunity.
Tax shift
It would also be good if, at the same time, the tax law could be changed to move away from married women having their income included in their husbands’ tax returns and to be allowed to have a domicile other than simply that of their husbands. Those provisions are particularly outdated in Jersey, where so many women are the higher earners.
Another aspect of family law which is in need of change is the law around assisted reproduction and surrogacy. It’s unlikely that there will be any changes in 2017 but currently there is no law at all in this developing area.
There could do with being changes to the registration of births too. Following the Civil Partnership (Jersey) Law 2012, civil partners both have parental responsibility for their children, but unfortunately the registration law hasn’t been changed and only one mother and one father can be named on a birth certificate. There's a good chance that a change in this area will come during 2017.
Trusts dominate much of our courts' time and represent one of the island’s most important industries. The Trusts (Jersey) Law, 1984, has been amended six times, and it’s likely a further set of amendments will be passed this year to deal with a number of issues, potentially including:
• Clarifying that there is no need for a beneficiary to exist at all times during the lifetime of a trust
• Redrafting the right of beneficiaries to information about ‘their’ trusts
• Confirming the ability of a settlor to reserve powers to themselves
• Allowing the Royal Court to vary a trust without the need for the consent of all adult beneficiaries
• Removing lÉgitime, a rule of Jersey inheritance law, as a ground to challenge the transfer of assets to trustees by will.
Employment law
In employment law, discrimination has dominated the headlines in recent times, and this year we might see the further extension of the law to cover disability discrimination. However, this might be more likely to happen in 2018, given the particular complexities of this area.
The 10th amendment to the Employment Law will, in contrast, definitely come into force this year, and bring in certain protections for armed forces reservists working within the Jersey Field Squadron. These will include:
• A right to return to a job after a period away with the forces
• Protection against unfair dismissal for reason of being a reservist
• Preserving continuity of (employment) service.
Finally, the amendment also gives the tribunal the power to impose a fine – of up to four weeks’ wages – where an employer breaches certain requirements under the law, such as providing a statement of terms of employment.