Avoiding financial heartbreak

Written by: David Craik Posted: 07/03/2019

BL61_divorceThe government of Jersey is consulting on changes to its 70-year-old divorce law. Experts are divided on whether the proposals will ease the financial worries of couples that are breaking up

Christmas may be a distant and happy memory for most of us, but for some, it marks the start of a long and unhappy road to divorce. This year, ‘Divorce Day’ took place on 7 January as couples, stretched to festive breaking point, began to seek a parting of the ways. 

According to divorce support service Amicable, around 45,000 people search the word ‘divorce’ online in January, more than any other month.

Divorce is also on the minds of the Government of Jersey, which is currently consulting on proposed changes to its 70-year-old divorce law. 

At present, grounds for divorce in Jersey are based either on a period of separation – the spouses do not live together – or on ‘fault’, where one spouse declares the other has committed an act such as adultery.

There are two periods of separation in relation to divorce – the spouses have lived apart continuously for at least one year if both spouses agree to get a divorce, or the spouses have lived apart continuously for at least two years if only one spouse wants to divorce. These periods are higher in England and Wales, at two years and five years respectively.

The consultation – which began in November 2018 and closed on 22 February 2019 – is looking at moving to a no-fault divorce system. It also covers removing the three-year bar, which means you must be married for that period before filing for divorce. It is currently only one year in England and Wales, and there is no time limit in Guernsey.

In addition, it is considering introducing joint filing and ending the requirement for unhappy couples to live separately.

“Jersey’s divorce law, the Matrimonial Clauses Law 1949, is out of date,” says a spokesperson from the Government of Jersey. “It does nothing to minimise conflict among divorcing couples. It requires one to divorce the other, as opposed to joint divorce, and, if the divorce is not based on a period of separation, it must be based on fault grounds. This requires one spouse to say the other has done something wrong. This is often unfair and unnecessary as it has no bearing on any subsequent financial settlement.”

Assessing opinion

Although this issue of Businesslife went to press before the outcome of the consultation was known, a January 2018 survey gives some clues as to which way the responses might go. 

Conducted by the Government of Jersey to understand more about public attitudes towards the island’s divorce laws, it found that 66% of the 972 respondents felt no-fault divorce should be introduced and 60% wanted the three-year ban lifted. 

The government plans to analyse responses to the consultation and publish the results within eight weeks of the consultation deadline. 

Advocate Victoria Myerson at Jersey-based law firm Myersons, says these are “long-awaited changes”. She identifies the potential introduction of no-fault divorce as particularly positive. “Having a fault-based system means that one party involved in a divorce has to take the blame,” she says. 

“Life isn’t black and white, it is grey, and although a marriage might break down ultimately because one party is unfaithful or just wishes to leave, what led to this point is often more complex. Nevertheless, it’s rare that both parties are going to agree that one of them was exclusively to blame for the marriage breakdown.”

The difficulty with the fault-based system, she adds, is that from the very outset, an “adversarial blame game” is being created.

“Dealing with arrangements for the children and how the finances are divided is the most time-consuming and expensive part of such proceedings,” Myerson continues. “The reason behind the breakdown of the marriage is relevant to how the assets are divided in only the most exceptional circumstances. But with the added emotion and acrimony of the fault-based system, it makes it much harder to get parties to reach agreement. 

“This extends the length of their proceedings and increases their legal fees, which means there may be less to provide for the family. We see these kinds of disputes regularly and it causes unnecessary expense and distress.”

No fault divorces will, she hopes, also help more couples to agree matters such as levels of child maintenance and division of assets without having to go to court. “Reaching agreement in this way can keep costs and tensions down and provides parties with greater control, rather than having a judge at trial determine the outcome,” she explains.

Myerson is also in favour of joint-filing. “This may encourage better co-operation when it comes to resolving other issues,” she states. 

BL61_divorceCritics’ concerns

Rose Colley, Family Law Partner at Viberts, is less enthusiastic. She is concerned that removing the three-year bar and introducing no-fault could make divorce “easier and quicker”, thus jeopardising personal finances. There is a fear that one party may be forced into agreeing a divorce they may not wish to enter, and which may not be in their best interests, if money is tight and they can’t afford lawyers.

“A one-year period of separation can help you sort out issues such as how the assets will be divided and how the children will be financially maintained,” she says.

Lauren Glynn, Senior Associate and lead family practitioner at Carey Olsen in Jersey, is also surprised that the reforms are not specifically designed to reduce the cost of divorce, and that there are no proposals within the consultation relating to the reform of how matrimonial finances and arrangements for children are dealt with.

“In truth, a simple divorce is not hugely expensive. It can be, and frequently is, dealt with by the parties themselves, without lawyers. It is when the parties are unable, or refuse, to reach an agreement in relation to their finances or their children, or want to point the finger at the other, that things really get expensive,” she states.

Colley says she wanted the consultation to go further. “In an English divorce, if you are a male police officer with a £500,000 pension pot, then you can share or split it in a way whereby your wife can set up her own pension scheme,” she explains. “She takes half, and it means that other assets, such as your house, can be normally divided. 

“In Jersey you can’t do that. All you can do is offset the pension against other assets. So, in the same example, the wife would get the house and the husband would be left with his illiquid pension pot. This causes a lot of hardship for clients.”

She also points out that the consultation fails to address the disparity between Jersey and England and Wales when it comes to property rights. Jersey does not have the equivalent of Matrimonial Home Rights, which protect a husband, wife or civil partner from being evicted by the other spouse without a court order. 

Often, during a separation, the person who owns the property in their name may look to sell the family home without the agreement of the non-owner spouse. In such cases, the non-owner can register their Matrimonial Home Rights with the Land Registry.

“This gives a warning to any potential purchasers that the other spouse has an interest. In Jersey, you can’t do this,” Colley says. “Jersey’s housing rights laws are strange and complex, so a husband could have rights to live here and not a wife. When they split, that can cause hardship.” 

Unsurprisingly, Colley is ambivalent about whether Jersey will now be a financially better or worse place to be divorced, citing little real change. “We need a wholesale look at divorce laws and other issues such as housing rights,” she states.

Glynn is more optimistic. “Without having to play the blame game and putting the parties on an equal footing, they will be able to get through the process less scarred, financially and emotionally.” 

Guernsey gears up for change

The States of Guernsey launched a targeted consultation in 2018, which could lead to potential divorce reform. Responders suggested that the time it took to divorce without ‘fault’ should be shortened from the current two years with consent and five years without consent for divorce by separation. They did not believe that the divorce process was too long, but that the costs were too high. They supported some form of cap or fixed fee arrangement to provide greater certainty. The States was due to issue a public consultation on outline proposals for change in February.

 


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