Speedy divorce reforms needed to outdated 1940s law, says commission

Monday 26 October 2015

Fast-track and "no fault" divorces should be introduced in Jersey, according to lawyers who are calling for the Island's 66-year-old Matrimonial Law to be scrapped.

Today, the Jersey Law Commission has published a report recommending radical reform to the Island’s divorce law that they say would help the 250 couples who start divorce proceedings every year, and their families.

Among the changes proposed are:

- A completely new law to replace the Matrimonial Causes (Jersey) Law 1949, which the commission say is no longer fit for purpose. The new law would "emphasise reconciliation processes to save marriages where possible. Where this is not possible, the next best outcome is for the couple to be helped to reach an agreement for themselves about how the marriage will be ended".

- Under the proposed new law, where there is no dispute in respect of children or finances, a divorce should be able to be fast-tracked to obtain a divorce order within three months. Court proceedings should be the exception rather than the rule, says the commission, reserved for any issues that the couple have not been able to resolve themselves.

- The grounds for obtaining a divorce - or dissolution of a civil partnership - should not be based on factors such as adultery or “unreasonable behaviour”. The proposed new law would introduce “no fault” divorce to the Island.  The three-year waiting period before divorce proceedings can be started would be abolished in the proposed new law; Jersey law should be brought into line with the law in Guernsey and Scotland. 

- Jersey law should enable a couple to make a financial ‘clean break’ after divorce. It should permit married couples to enter into legal binding agreements - sometimes referred to as “pre-nups” and “post-nups” - about what should happen if their marriage should come to an end, provided certain safeguards are in place.

- A Resolution Service should be set up, administered separately from the court system, to provide alternative dispute resolution services, mediation, arbitration and counselling services for couples who feel their marriage is coming to an end.

Advocate Barbara Corbett, appointed by the Law Commission to lead the project, said: “The current Jersey law doesn’t encourage or facilitate reconciliation when a couple are separated prior to starting the divorce proceedings or during the proceedings – on the contrary, Jersey law actively discourages couples from trying to save their marriage. The Law Commission’s proposals support the institution of marriage and recommend ways in which marriage can be saved wherever possible”. 

“It should be possible to obtain a divorce without apportioning blame. If a couple agree that their marriage is at an end they should be able to apply jointly for a divorce. There should be no need for court proceedings.” 

Mr Clive Chaplin, chairman of the Jersey Law Commission said: “The Law Commission exists to help bring about practical improvements in the Island’s legal system. Divorce is a matter of great significance to many people in Jersey. Between 240 and 260 couples start divorce proceedings every year. Many couples have children who, along with the wider family and the couple’s friends and colleagues, are all affected by the breakdown of a marriage. The Law Commission’s project provides a blueprint for better law that may help save some marriages and, where that’s not possible, make the process of ending marriages easier”.

It will now be for the States to decide whether to accept the recommendations and, if so, how to implement them.