Jersey Divorce Reform – Consultation in Progress
As a barrister in St.Philips Chambers, the late David Hershman QC – a much missed and lovely man- headed our family group and asked me to do a seminar on divorce reforms being introduced by the Family Law Act 1996 and in particular, on the much anticipated “no fault divorce.”
Despite the passage of over 20 years, I can recall the seminar that we delivered, not least because despite the Act having been passed by the UK Parliament, “no fault divorce” still proved so controversial that these provisions were never actually brought into force! In part, certain procedures that accompanied the reforms were also rather problematic, but the aspiration of removing the “blame game” always seemed to me to be a good one.
It was for this reason that a colleague and I broached the idea of reform of Jersey’s divorce law to a “no fault basis” believing that Jersey might succeed in introducing a better system than that which prevailed in the UK. In 2009 we publicised various proposals but only to find ourselves challenged publicly by the then Dean of Jersey. Beneath this article is our response as published by the Jersey Evening Post.
It is heartening to know that some 9 years later, and after continuing efforts, divorce reform in Jersey is firmly on the agenda. It will be interesting to see if the aspiration of removing “fault” as the main gateway to divorce in Jersey will succeed, or if, as a society, we are still not ready for such a change.
Jersey Evening Post : 20 August, 2009
From Advocate Timothy Hanson and Barbara Corbett, Hanson Renouf.
CHURCH leaders are reported (JEP, 7 August) to have ‘condemned’ this firm’s attempt to have the divorce law in Jersey reformed. Unfortunately, there appears to have been a degree of misunderstanding as to the reforms that we have put forward.
In Jersey, divorce is governed by the Matrimonial Causes (Jersey) Law 1949. Much of that law was originally based on the English Matrimonial Causes Act 1937.
Since that time there have been many amendments and changes to divorce law in both England and in Jersey, although the provisions in each jurisdiction are not exactly the same. Many of the changes in the Jersey 1949 law have emanated from England, but rather than copying laws wholesale, Jersey has taken bits and pieces from English statutes, occasionally adopted slightly different provisions and at other times has simply failed to react.
In part, our suggested reforms fall into this latter category and all that we seek is to match certain elements that already exist in the UK. In other respects, primarily in reducing bitterness and hostility in divorce, we feel that Jersey can put itself ahead of current UK law.
The JEP reported that Jersey church leaders opposed reducing to one year the general prohibition on couples getting divorced, unless they have been married for three years.
While to some extent an understandable reaction, this view failed to take account of the fact that the three-year restriction does not apply in cases of exceptional hardship or depravity and, therefore, it simply encourages (if not requires) one spouse to make the most unpleasant allegations possible against the other spouse to get an early divorce, but without any guarantee that the court might agree.
The English Law Commission stated in 1982 that such a rule merely produced considerable ill-will and suffering and, consequently, several decades ago the UK abandoned the three-year rule in favour of a blanket one-year ban. We suspect that this UK reform, and the reasons for it, may not have been fully appreciated in the reaction to our recommendations.
It is unclear as to what the Church may feel about our suggested reforms that would remove the need to prove that someone was at fault; for instance, that they had committed adultery or had been guilty of unreasonable behaviour. Hopefully, the Church would agree that it should no longer be necessary to prove that one spouse is responsible for the breakdown of a marriage; merely that the marriage has irretrievably broken down.
As long ago as 1988, the English Law Commission concluded that divorce based upon fault was not helpful: ‘The necessity of making allegations in the petition “draws the battle-lines” at the outset. The ensuing hostility makes the divorce more painful, not only for the parties but also for the children, and destroys any chance of reconciliation…In petitions relying on fault-based facts, the petitioner is encouraged to “dwell on the past” and to recriminate.’
These proposals formed the basis of a 1993 Government consultation paper, Looking to the Future – Mediation and the Ground for Divorce, which as well as looking at the basis for divorce, also dealt with procedures whereby mediation could be used to help people through the consequences of divorce, rather than the traditional processes of lawyer negotiation and court order.
The commission produced draft legislation which, the consultation paper concluded, ‘might reduce the bitterness and feelings of injustice so prevalent in divorce proceedings and…consequently minimise the harm suffered by children. Perhaps by encouraging parents to look at how best they can meet their parental responsibilities for the future, rather than dwelling upon the unhappiness and unfairness of the past, the process could be easier for children.’
The UK Government accepted many of the proposals of the Law Commission and brought in the Family Law Bill in 1995, which was to become the Family Law Act 1996.
This act would have removed the need to establish that one spouse was at fault for the breakdown of a marriage, as well as other useful reforms, but unfortunately these aspects have not yet been brought into force in the UK for a variety of bureaucratic and other reasons. The principles enshrined in that act, however, remain worthy to pursue in Jersey.
Divorce can be a lengthy process, expensive and unpleasant. Proceedings in fact tend to take longer and cost more in Jersey than in England, and contentious cases take up significant court time.
The fault-based grounds for divorce, and the lack of encouragement to reconcile, or requirement to explore alternative methods of resolving issues, engenders bitterness and distress. Worse still, this distress can also be felt by the children. They at least should be protected from the blame game.
In fact, they need their parents to be able to communicate and provide good role models, irrespective of the fact that they no longer live together. A divorce process that concentrates in so many respects upon blame is clearly at odds with what most people would either want to experience or to happen to others.
Further, it tends to destroy even those marriages that might otherwise have been saved along the way.