Should Jersey allow a 'no fault' divorce?

Monday 20 February 2017

Current marriage laws endorse the blame game and should be reformed according to a leading family lawyer.

Barbara Corbett, Partner and Head of Family Law at Benest Corbett Renouf, is campaigning for a ‘no fault divorce law’ – a measure that she says would, “…reduce the harm caused to couples, their children and society by making people have to blame one another in order to get a divorce.”

She believes that the introduction of the same sex marriage legislation this year is an “opportunity not to be missed” to update existing divorce laws.

Current legislation - the Matrimonial Causes (Jersey) Law 1949 - 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.

"Once you have to make allegations about the other party, it ups the ante when it comes to divorce proceedings. People can get upset and defensive when accused of something, and then they take up antagonistic positions," Advocate Corbett explained.

"If neither party had to allege fault and could do a joint application on the basis that the marriage has just come to an end, then it would make everything easier such as arrangements for children and finances."

Pictured: Benest Corbett Renouf's Advocate Barbara Corbett, a Family Law expert.

A refresh of these laws would also help to avoid awkward loopholes whereby divorce petitions can be refused, as was the case in the UK with Owens vs Owens.

The case saw a wife appear in front of the UK court on Valentine's Day this year in a bid to overturn a decision that she could not divorce her husband, who had objected to her divorce petition on the grounds of his unreasonable behaviour.

But same sex married couples would struggle to even get this far.

"You can't equate things easily when talking about same sex dissolution or divorce. It gets complicated because a man and a woman can get divorced on the basis of adultery, but there’s no such thing as adultery between two men or two women. A marriage can be annulled if it hasn’t been consummated – but the definition of sex is ordinary sex between a man and a woman so two men can’t officially consummate a marriage and nor can two women."

While the Matrimonial Causes Law has been amended many times, Advocate Corbett argues that many elements remain "archaic", and still operate under the notion that marriage, "...is between a man and a woman, and that there were such things as 'matrimonial offences' where people in marriage had to live together - what they call 'consortium - and had to have sex, and generally look after each other."

Such "outdated" elements mean that the knot has to remain tied for three years before a couple can get a divorce, even if they have lived together for a very long time previously.

It's a rule that doesn't exist in Guernsey or Scotland, and only applies for one year in England - yet the number of divorces in Jersey's neighbouring island does not vary wildly from Jersey's own rates.

"The idea was that the three year bar would stop people getting divorced quickly without thinking about it. No one goes into it hastily without thinking about it."

"Many people would think that [these rules] are crazy these days, as they manage their lives how they want and it's not dictated to them by the law. It makes sense to have a brand new law dealing with the whole lot - both equal marriage and the law on ending marriage."

Pictured: Jersey could be at the "forefront" of truly equal marriage and divorce if legislation is updated.

She therefore moves for a more "administrative" divorce procedure, whereby couples could make a joint application, and seek out, "...counselling, maybe mediation and arbitration, and also have access to financial advice and what's best for children in the context of a relationship breakdown."

Despite concerns surrounding about current divorce legislation's impact on same sex couples, Advocate Corbett fears that the States' promise for the introduction of same sex marriage legislation by 2018 might lead to a "...dog's breakfast."

"I can understand that the Chief Minister's Department would want to bring in equal marriage because they said they would bring it in in 2017, and I can understand why they want to keep their promise, so I’m not suggesting there’s anything wrong in them doing it that way, but it would be better if they’d take the opportunity to do the job more thoroughly.

"I’m imagining that the plan is just change the marriage law, as currently unless it’s a man and woman, then the marriage is void. If they're only going to change that bit and then do some tweaks to the other bits, it’s not going to be really 'equal' and still going to be a bit of a mess."

And the only people that stand to benefit from that "mess" are the lawyers, Advocate Corbett says.

"So it’s an opportunity not to be missed to move forwards. If we did it now or soon, it would put Jersey at the forefront of reform and [equality in] same sex marriages and divorces."