1940s divorce law update could exclude LGBTQ+ people

Monday 08 May 2017

A leading family lawyer has welcomed moves towards an overhaul of Jersey’s outdated 1940s divorce law, but fears that it will exclude LGBTQ+ islanders.

The Chief Minister announced last week that a public consultation into how divorce law can stop endorsing the ‘blame game’ and allow for a ‘no fault’ split between couples, as well as access to mediation services, will start in 2018.

Barbara Corbett, Partner and Head of Family Law at Benest Corbett Renouf, had been campaigning for an updated law which would end the need for parties to allege fault and make a joint application for divorce on the basis that the marriage had come to a natural end, for a number of years.

She told Express that it was “good news” the States would finally act on their ‘in-principle’ decision to change legislation in 2015, but expressed concern that they had not taken the opportunity to review divorce law alongside equal marriage to ensure that same sex couples enjoyed the same benefit.

Pictured: Advocate Barbara Corbett, one of the key voices in the 'no fault' divorce law reform campaign.

A refresh of the laws would help avoid loopholes whereby divorce petitions can be refused, as was recently the case in the United Kingdom when a judge overturned a wife’s bid to divorce her husband on the grounds of his unreasonable behaviour.

But same sex couples would struggle to even get this far under current legislation.

Created in 1949, the law stipulates that a petition for divorce may only be presented to the court by "either the husband or wife" on the grounds that the respondent has committed adultery, deserted the petitioner without cause for at least two years, is guilty of 'unreasonable behaviour', is of "unsound mind" and has been in related treatment for at least five years, or is serving a prison sentence of no less than 15 years.

In addition, only men and women are able to apply for dissolution, as the law does not recognise adultery between two men or two women. A marriage can also be annulled if it hasn’t been consummated, but the definition of sex under the law involves a man and a woman.

Advocate Corbett commented: “I am very much in favour of no fault divorce and the fact that a public consultation is to be started next year is good.

“I had hoped that the States would have combined no fault divorce with the equal marriage legislation, which would have made sense but I appreciate that the no fault divorce would have taken more drafting time and as the Chief Minister had pledged to get equal marriage on the statute books there wasn’t enough time for everything.

“As things stand, equal marriage won’t actually be equal because of the differences in the way gay and straight couples are treated on divorce, for example, the concepts of adultery and consummation.”