The bailiwick shows us the way on divorce reform

Divorce|January 30th 2018

Rightly or wrongly, I’ve always had the impression that the Bailiwick of Jersey is quite a conservative place, resistant to change. For example, they still technically had the death penalty until 2006, and birching was still practised on Jersey long after it was abolished over here. It is therefore slightly ironic that Jersey is now leading the way on reform of its divorce laws, with the introduction of no-fault divorce being high on the agenda, whilst here on the mainland no-fault divorce seems as far away as ever.

Of course, the urgency of reform depends upon the nature of the existing law. I have therefore had a quick look at the current divorce law in Jersey, and it is quite interesting – very similar to our present law, but also with significant differences. In some instances it is more conservative than our law, but in others it is already more liberal.

The first point to make is that there is a bar on issuing a divorce petition in Jersey within three years of the date of the marriage. This is actually the same as when our law was originally drafted – it was only in 1984 that our parliament reduced the period to one year.

Then there are seven grounds upon which a petition for divorce may be presented in Jersey:

  1. That the respondent has committed adultery.
  2. That the respondent has deserted the petitioner for a period of two years.
  3. That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them.
  4. That the respondent “is incurably of unsound mind and has been continuously under care and treatment for a period of at least 5 years immediately preceding the presentation of the petition”.
  5. That the respondent is serving a sentence of imprisonment for life or for a term of not less than 15 years.
  6. That the parties have been separated for one year and the respondent consents to a divorce.
  7. Two years’ separation, with no consent required.

Thus we have our five ‘grounds’ reproduced at paragraphs 1, 2, 3, 6 and 7, with the difference that the separation grounds are reduced from our two and five years to just one and two years – far more sensible. On the other hand, paragraphs 4 and 5 seem quite archaic (the current divorce law in Jersey was formulated back in 1949), belonging to a different era completely.

The government of Jersey, concerned about the adversarial nature of its current divorce system, is asking islanders for their views on a number of issues, including the following:

  1. Whether the three year rule should change: well, if we realised back in 1984 that this was an unnecessary restriction upon the ‘right’ to divorce, I’m sure the good people of Jersey will be sensible enough to see things the same way now. In fact, I’m not even sure of the need for any period of time to elapse before divorce – if the marriage is over, it’s over, and having to wait to get divorced seems pretty pointless to me.
  2. Whether there should be a no-fault divorce system, in which you can file for divorce without having to prove that your husband or wife was at fault. Yes!
  3. Here’s an interesting one: whether the parties should be able to file for divorce jointly. My answer to that would be: why on Earth not?
  4. Lastly, the non-sequitur: whether ‘compulsory mediation’ should be introduced, ‘forcing’ parties to try to sort out their divorce settlement via mediation. As I’m sure I’ve said here previously, you can lead a horse to water, but you can’t make it drink. Mediation, by its very nature, is voluntary – compulsory mediation is therefore a nonsense. If a party doesn’t want to mediate, then the process is a complete waste of time. In any event, the vast majority of cases (about 90%) are resolved by agreement anyway, so the issue of contested settlements is not as big as many believe. Mediation may help with the 90%, but it will do little for the 10%.

OK, so I don’t agree with everything that’s being suggested. However, the basic point is this: the Jersey government agreed back in 2015 that reform of their divorce laws was long overdue. Now they are doing something about it.

Meanwhile, here on the mainland…

Author: Stowe Family Law

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