Matrimonial Causes
Rules 2005
PART 1
PRELIMINARY
1 Interpretation
(1) In these Rules, unless
the context otherwise requires –
“ancillary relief” means any relief obtainable by virtue
of Articles 25, 27, 28, 29, 30, 31, 32 or 33 of the Law and includes an
application for child maintenance;
“Children Law” means the Children (Jersey)
Law 2002;
“cause” means any action for divorce, nullity of
marriage, or judicial separation and includes proceedings on an application by
a husband or wife for a decree of presumption of death of the other spouse and
dissolution of the marriage thereupon;
“child maintenance” means maintenance payable under an
order pursuant to Article 25 of the Law;
“competent witness” means a person who, under Article 3
of, and the Schedule 1 to, the Powers of Attorney (Jersey)
Law 1995, would be competent to attest the document if it were an instrument
creating a power of attorney;
“Court” means the Family Division of the Royal Court and
includes the Greffier;
“defended cause” means a cause that is not an undefended
cause;
“filed” means filed in the Judicial Greffe;
“Greffier” means the Judicial Greffier;
“Inferior Number” means the Inferior Number of the Royal
Court;
“interim maintenance” means maintenance payable under an
order pursuant to Article 31 of the Law;
“Law” means the Matrimonial Causes (Jersey)
Law 1949;
“legal representative” means an advocate or solicitor
acting for a party to any proceedings, and includes a person authorized by that
advocate or solicitor in accordance with practice directions for a specific
purpose in the proceedings;
“lump sum payment” means a sum payable under an order
pursuant to Article 29(1)(b) of the Law;
“notary public” means a notary public duly admitted and
sworn and practising in Jersey;
“person named” includes a person described as “passing
under the name of, or known as A.B”;
“practice directions” means directions issued pursuant
to Rule 71;
“secured provision order” means an order pursuant to
Article 25(2) or Article 29(1)(c) of the Law;
“spousal maintenance” means maintenance payable under an
order pursuant to Article 29(1)(a) of the Law;
“transfer, sale or settlement of property order” means
an order pursuant to Article 28(1) or 30(1), as the case may be, of the
Law;
“undefended cause” means a cause in which no answer has
been filed or in which all the answers filed have been struck out or withdrawn;
“variation of settlements order” means an order pursuant
to Article 27(1) of the Law.
(2) Words and phrases used
in these Rules shall, unless the context otherwise requires, have the same
respective meanings as in the Children Law.
(3) In these Rules, unless
the context otherwise requires, a Form referred to by number means the Form so
numbered in the Schedule.
2 Powers
of Greffier
Subject to Article 3(5) of the Law, the hearing of
applications, the exercise of powers and the discharge of functions of the
Royal Court set out in –
(a) Articles 11, 25,
25A, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36 of the Law; and
(b) the proviso to Article 3
of the Separation and Maintenance
Orders (Jersey) Law 1953,
may be undertaken by the Greffier in accordance with these Rules.
PART 2
INITIATION OF PROCEEDINGS
3 Application
for leave to present petition
(1) An application for
leave to present a petition for divorce before 3 years have passed since
the date of the marriage must be made by originating summons in accordance with
Form 1.
(2) There must be filed in
support of the summons an affidavit by the applicant stating –
(a) the
grounds on which the application is made;
(b) particulars
of the hardship or depravity alleged;
(c) whether
there has been any previous application under this Rule;
(d) whether
there are living any children of the family and, if so, the names and dates of
birth or ages of such children, where and with whom they are residing; and
(e) whether
any, and if so, what attempts at reconciliation have been made,
and any circumstances which may assist the Court to determine
whether there is reasonable probability of a reconciliation between the
parties.
(3) A copy of the petition
must be exhibited with the affidavit.
(4) The application shall
be heard before the Inferior Number on a date not less than 28 days from
the filing of the originating summons to be fixed by the Greffier after
consultation with the Bailiff.
(5) Unless otherwise
directed, the summons and the documents referred to in paragraphs (2) and
(3) must be served on the respondent at least 28 clear days before the date of
the hearing and must be accompanied by a form of acknowledgement in accordance
with Form 1(a).
(6) If the respondent
wishes to oppose the application, the respondent, within 21 days of
service in accordance with paragraph (5), must file an affidavit setting
out the grounds on which it will be opposed.
(7) The respondent may be
heard without giving notice of intention to defend, but only with the leave of
the Inferior Number.
(8) References in this Rule
to the petition and to the respondent are references to the intended petition
and intended respondent.
4 Commencement
of proceedings
(1) Every cause must be
commenced by filing a petition addressed to the Royal Court.
(2) A petition must not be
filed without leave if there is before the Royal Court another petition by the
same petitioner that has not been dismissed or otherwise disposed of by a final
order.
(3) On the filing of a
petition for divorce, judicial separation or nullity the Greffier shall annex
to every copy of the petition for service a notice in Form 3 with
Form 4 attached and shall also annex to the copy petition for service on
the respondent the copy of any statement filed referred to in Rule 5(5).
(4) An application for
ancillary relief must be made in accordance with Rule 49.
(5) Unless these Rules
otherwise provide, any other application in a cause for leave or directions
must be made by summons in Form 15 to the Court.
5 Contents
of petition
(1) Unless otherwise
directed, every petition must state –
(a) the
names of the parties to the marriage and the date and place of the marriage;
(b) the
last address at which the parties to the marriage have lived together as
husband and wife;
(c) the
occupation and residence of the petitioner and the respondent;
(d) if it
is alleged that the court has jurisdiction based on domicile in Jersey, that
the parties to the marriage are domiciled in Jersey at the date of presentation
of the petition;
(e) if it
is alleged that the court has jurisdiction based on habitual
residence –
(i) the country in
which the petitioner has been habitually resident throughout the period of one
year ending with the date of presentation of the petition, or
(ii) if
the petitioner has not been habitually resident in Jersey, that the respondent
has been habitually resident during that period, with details in either case,
including the addresses of the places of residence and the length of residence
at each place;
(f) whether
there are living any children of the family and, if so –
(i) the number of
such children and the full names (including surname) of each and the
child’s date of birth or (if it be the case) that the child is
over 18, and
(ii) in
the case of each minor child over the age of 16, whether the child is
receiving instruction at an educational establishment or undergoing training
for a trade, profession or vocation;
(g) if it
be the case, that there is a dispute whether a living child is a child of the
family;
(h) whether
(to the knowledge of the petitioner in the case of the husband’s
petition) any other child now living has been born to the wife during the
marriage and, if so, the full names (including surnames) of the child, the
child’s date of birth or, if it be the case, that he or she is
over 18;
(i) if
there is a dispute as to whether a living child of one of the parties to the
marriage (including an illegitimate or adopted child) has been accepted as one
of the family by the other party, full particulars of the facts relied on by
the petitioner in support of his or her allegation that the child has or, as
the case may be, has not, been accepted as one of the family by the other
party;
(j) whether
or not there are or have been any other proceedings in any court in Jersey or
elsewhere with reference to the marriage or to any child of the family or
between the petitioner and the respondent with reference to any property of
either or both of them and, if so –
(i) the nature of the
proceedings,
(ii) the
date and effect of any decree or order, and
(iii) in
the case of proceedings with reference to the marriage, whether there has been
any resumption of cohabitation since the making of the decree or order;
(k) whether
there are any proceedings continuing in any country outside Jersey which relate
to the marriage or are capable of affecting its validity or subsistence and, if
so –
(i) particulars of
the proceedings, including the court in or tribunal or authority before which
they were begun,
(ii) the
date when they were begun,
(iii) the
names of the parties,
(iv) such
other facts as may be relevant to the question whether the proceedings on the
petition should be stayed;
and such proceedings shall include any which are not instituted in a
court of law in that country, if they are instituted before a tribunal or other
authority having power under the law having effect there to determine questions
of status, and shall be treated as continuing if they have begun and have not
been finally disposed of;
(l) the
grounds upon which relief is sought, setting out with sufficient particularity
the individual facts relied on, but not the evidence by which they are to be
proved;
(m) in the case
of a petition for divorce on the grounds of one year’s or
2 years’ separation, whether any, and if so what, agreement or
arrangement has been made or is proposed to be made between the parties for the
support of the respondent or, as the case may be, the petitioner or any child
of the family;
(n) whether
there has been any connivance or condonation on the part of the petitioner and,
except in the case of a petition presented on either of the grounds specified
in Article 7(2) of the Law, the petition is presented or prosecuted in
collusion with the respondent or any of the co-respondents;
(o) any
further or other information required by such of the following paragraphs as
may be applicable.
(2) A petition for a decree
of nullity under Article 18(1)(d), (e), (f) or (i) of the Law shall state
whether the petitioner was at the time of the marriage ignorant of the facts
alleged, and whether marital intercourse with the consent of the petitioner has
taken place since the discovery of the grounds for the decree.[1]
(3) A petition for a decree
of presumption of death and dissolution of marriage shall state –
(a) the
last place at which the parties to the marriage cohabited;
(b) the
circumstances in which the parties ceased to cohabit;
(c) the
date when and the place where the respondent was last seen or heard of; and
(d) the
steps which have been taken to trace the respondent.
(4) If the petitioner,
whether for his or her own protection or otherwise, wishes to omit from the
petition any information required by paragraph (1) –
(a) the
petition may be filed without such information; and
(b) before
service is effected the petitioner must make an ex
parte application to the Greffier for leave for
the petition to stand,
and if leave is refused, the Greffier shall make an order requiring
the petition to be amended to comply with paragraph (1).
(5) In the case of a
petition for divorce, nullity or judicial separation that discloses that there
is a minor child of the family, the petition must be accompanied by a separate
written statement signed by the petitioner personally containing the
information required by Form 5, if practicable, agreed with the
respondent.
(6) If an application for
ancillary relief is made in a petition, it must contain a statement in general
terms of the respondent’s income and property in so far as they are
within the petitioner’s knowledge and belief.
(7) The petition must
conclude with a prayer setting out particulars of the relief claimed
including –
(a) any
application for a residence or contact order;
(b) any
claim for ancillary relief, including child maintenance; and
(c) any
claim for costs.
(8) Every petition, if
settled by an advocate or solicitor, must be signed by that person and, if not
so settled, must be signed by the petitioner.
(9) If a petitioner is
legally represented, the petitioner’s advocate or solicitor must endorse
on the petition his or her name and address in Jersey, which shall be an
address for service.
(10) A petitioner acting in person
must endorse on the petition an address for service, which must be the
petitioner’s place of residence or, if he or she has no place of
residence in Jersey, an address for service in Jersey.
(11) Unless otherwise directed by
the Greffier on application being made to the Greffier ex parte, a certificate of marriage to which the
petition relates must be filed with the petition.
5A Supplemental:
petition for nullity on ground of issue of interim gender recognition
certificate[2]
(1) This Rule applies to a
petition for nullity brought under Article 18(1)(g) of the Law.
(2) Unless otherwise
directed, the petitioner must file with the petition a copy of an interim
gender recognition certificate issued to the petitioner or to the respondent,
as the case may be.
5B Supplemental:
petition for nullity on ground that respondent’s change of gender would
be recognized by an approved jurisdiction[3]
(1) This Rule applies to a
petition for nullity brought under Article 18(1)(h) of the Law.
(2) The petition must
contain particulars of the conditions satisfied and steps taken in the approved
jurisdiction that are –
(a) prescribed; or
(b) relied
upon to satisfy the Court that, but for the fact that the parties are still
married, the change of gender would be recognized by that jurisdiction.
(3) The petitioner must
file such documents as the Greffier may direct in support of a petition to
which this Rule applies.
5C Supplemental:
petition for nullity on ground of respondent's gender having become acquired
gender at time of marriage[4]
Where a petition for nullity is brought under Article 18(1)(i)
of the Law and a full gender recognition certificate has been issued to the
respondent, the petitioner must file a copy of that full certificate with the
petition, unless otherwise directed.
6 Parties
(1) Subject to paragraph (2),
where a petition alleges that the respondent has committed adultery, the person
with whom the adultery is alleged to have been committed shall be made a
co-respondent in the cause unless the Court otherwise directs pursuant to
Article 17 of the Law.[5]
(2) If a petition alleges
that the respondent has been guilty of an offence upon a named person, being an
offence the facts of which also constitute adultery, that person shall not be
made a co-respondent in the cause unless the Court so directs.[6]
7 Discontinuance
of cause before service of petition
Before a petition is served on any person, the petitioner may file a
notice of discontinuance whereupon the cause shall stand dismissed.
8 Notice
of proceedings
Every copy of a petition for service on a respondent or
co-respondent must be accompanied by a notice of proceedings in Form 3 and
an acknowledgement of service in Form 4.
9 Service
of petition and originating summons
(1) Unless otherwise
directed –
(a) a
copy of every petition must be served personally or by post upon every
respondent and co-respondent named in the petition;
(b) a
copy of every originating summons must be served personally or by post upon the
respondent to the petition.
(2) Personal service on any
person within Jersey shall be effected through the Viscount.
(3) Personal service must
not be effected by the petitioner or the intended petitioner.
(4) For the purposes of
paragraph (1), a copy of a petition shall be deemed to have been duly
served if –
(a) an
acknowledgement of service in Form 4 has been signed by the party to be
served and has been returned to the Judicial Greffe; and
(b) the
signature of the respondent is proved at the hearing or, where the cause is
undefended, in the affidavit filed by the petitioner under Rule 28(2).
(5) When an acknowledgement
of service is returned to the Greffier, the Greffier shall send a copy to the
petitioner or the petitioner’s advocate or solicitor within 48 hours
of its receipt.
(6) If a copy of the
petition has been sent to a party and no acknowledgement of service has been
returned to the Judicial Greffe, the Greffier, if satisfied by affidavit or
otherwise that the party has nevertheless received the document, may direct
that the document be deemed to have been duly served on that party.
(7) Paragraph (6)
shall not apply if –
(a) the
petition is presented on the ground of one year’s separation coupled with
the respondent’s consent to a decree being granted; and
(b) none
of the other facts mentioned in Article 7 of the Law is alleged,
unless the petitioner produces to the Court a written statement
containing the respondent’s consent to the grant of a decree.
(8) An application for
leave to substitute for the modes of service prescribed by this Rule some other
mode of service, or to substitute for service notice of the proceedings by
advertisement or otherwise, must be made ex parte
by lodging with the Greffier an affidavit, sworn by the petitioner or
respondent, as the case may be, personally, setting out the grounds on which
the application is made and the facts relied on.
(9) No order giving leave
to substitute notice of proceedings by advertisement shall be made unless it
appears to the Greffier that there is a reasonable probability that the
advertisement will come to the knowledge of the person concerned.
(10) If leave is given to
substitute for service notice of the proceedings by advertisement, the form of
advertisement must be approved by the Greffier and copies of the newspapers
containing the advertisement together with any notice to appear must be filed.
(11) An application for leave to
dispense with service altogether must be made ex
parte to the Greffier supported by an affidavit setting out the grounds
of the application and, if it appears necessary or expedient to do so, the
Greffier may grant such leave.
(12) Unless otherwise directed,
service or delivery of any summons, notice or other document in a cause may, if
no other mode of service or delivery is prescribed, be effected –
(a) where
the party to be served –
(i) is the
petitioner,
(ii) has
given notice of intention to defend, or
(iii) has
applied to be heard on ancillary matters,
by leaving the notice or document at or by sending it by post to,
the address for service;
(b) in
any other case, by delivering the notice or document to the party to be served,
or by leaving it at or by sending it by post to, the party’s last known
address.
(13) If an address mentioned in
paragraph (12) is in Jersey, service or delivery may be effected through
the Viscount.
10 Service
out of Jersey
(1) A petition, originating
summons, notice or other document in a cause or matter may be served out of
Jersey without leave in the manner provided by this Rule.
(2) When a petition is to
be served out of Jersey, the time limited for giving notice of intention to
defend in the notice accompanying the petition or contained in the notice shall
be fixed having regard to the place or country where or in which the petition
or notice is to be served.
(3) When an originating
summons is to be served out of Jersey, the date of the hearing shall be fixed
having regard to the place or country where or in which the summons is to be
served.
(4) When it is desired to
serve any petition, originating summons, notice or other document in a foreign
country the following procedure may, subject to the provisions of any relevant
convention between His Majesty and the Government of a foreign country, be
adopted –
(a) the
party bespeaking such service must lodge with the Greffier a request in
Form 2 (which may be varied as necessary to meet the circumstances of the
case);
(b) the
request must be accompanied by the original document and a translation of it,
in the language of the country in which service is to be effected, certified by
or on behalf of the person making the request, a copy of each for every person
to be served and any further copies that the Greffier may deem necessary;
(c) the
documents to be served must be sealed with the seal of the Royal Court and
shall be forwarded by the Greffier to the Bailiff for transmission through
official channels;
(d) an
official certificate, transmitted through official channels to the Bailiff,
establishing the fact and the date of the service of the documents shall,
provided that the official certificate in the case of a document to be served
personally shows the server's means of knowledge as to the identity of the
person served, be deemed to be sufficient proof of such service and shall be
filed as, and be equivalent to, a record by the Viscount or an affidavit of
service within the requirements of these Rules in that behalf; and
(e) where
an official certificate, transmitted to the Bailiff through official channels,
certifies that efforts to serve a document have been without effect, the Court
may, upon the ex parte
application of the person desiring to cause the document to be served, order
that such person be at liberty to bespeak from the Greffier a request for
substituted service of such document.[7]
11 Proof
of service
Unless otherwise directed, save where Rule 9(10) has been
complied with (or leave has been given to dispense with service altogether), a
petition shall not proceed to trial or hearing unless the respondent and every
co-respondent to the petition and every person named in it –
(a) has given notice of
intention to defend;
(b) is shown by record of
the Viscount or by affidavit in accordance with Form 6 (which record or affidavit
must be filed) to have been served with the petition personally or in
accordance with an order for substituted service; or
(c) has returned to the
Greffier an acknowledgement of service in accordance with Form 4.
12 Notice
of intention to defend
(1) In these Rules any
reference to a notice of intention to defend is a reference to an
acknowledgement of service in Form 4 containing a statement to the effect
that the person by whom it is signed intends to defend the proceedings to which
the acknowledgement relates, and any reference to giving notice of intention to
defend is a reference to returning such a notice to the Greffier.
(2) In relation to any
person on whom there is served a document requiring or authorizing an
acknowledgement of service to be returned to the Judicial Greffe, references in
these Rules to the time limited for giving notice of intention to defend are
references to 8 days after service of the document, exclusive of the day
of service, or such other time as may be fixed.
(3) Notice of intention to
defend a cause begun by petition may be given at any time before the issue of
the Greffier's certificate, notwithstanding that the time limited for giving
the notice has expired.
(4) Subject to paragraphs (2)
and (3) a person may give notice of intention to defend notwithstanding that
the person has already returned to the Judicial Greffe an acknowledgement of
service not constituting such a notice.
(5) Notice of intention to
defend may be under protest, may be either general or limited to any claim made
in the petition or by subsequent application or to making an application under
these Rules.
(6) Any notice of intention
to defend under protest must state concisely the grounds of the protest and the
party so giving the notice must, before the expiration of the time allowed for
filing an answer, apply for directions as to the determination of any question
arising by reason of such notice and, in default of making such application,
shall be deemed to have given an unconditional notice of intention to defend.
12A Supplemental:
acknowledgement of service of petition for nullity brought on ground relating
to gender recognition[8]
(1) This Rule applies where
a petition for nullity is brought under –
(a) Article 18(1)(g)
of the Law and an interim gender recognition certificate has been issued to the
respondent;
(b) Article 18(1)(i)
of the Law and a full gender recognition certificate has been issued to the
respondent.
(2) Where the respondent
returns to the Greffier an acknowledgement of service in Form 4, the respondent
must, unless otherwise directed, file with it a copy of the interim certificate
or the full certificate, as the case may be.
13 Consent
to grant of decree
(1) If, before the hearing
of a petition on the ground of one year’s separation coupled with the
respondent's consent to a decree being granted, the respondent wishes to
indicate to the Court that he or she consents to the grant of a decree, the
respondent must do so by giving the Greffier a notice to that effect signed by
him or her personally.
(2) For the purposes of
paragraph (1) an acknowledgement of service containing a statement that
the respondent consents to the grant of a decree shall be treated as such a
notice if the acknowledgement is signed personally by the respondent and attested
by a qualifying witness.
(3) For the purpose of
paragraph (2) a qualifying witness is –
(a) in
Jersey, a Jurat or a Connétable, a Deputy of the States, an advocate or
solicitor of the Royal Court or a notary public; or
(b) outside
Jersey, a judge, justice of the peace, magistrate, mayor, chief officer of any
city or municipal corporation, a lawyer qualified under the legal system of the
place of execution, a person authorized to take oaths or affidavits or the
equivalent thereof by the law of Jersey or the law of the place of execution, a
British consular official (or a person for the time being discharging the
duties of such an official) or, if the respondent is a member of the British
armed forces, an officer of those forces authorized to take affidavits.[9]
(4) A respondent to a
petition on the ground mentioned in paragraph (1) may give notice to the
Court either that he or she does not consent to a decree being granted or that
any consent he or she has already given is withdrawn.
(5) If notice is given
under paragraph (4) and none of the other grounds mentioned in Article 7
of the Law is alleged, the proceedings on the petition shall be stayed and the
Greffier shall thereupon give notice of the stay to all parties.
14 Supplemental
and amended petitions
(1) A supplemental petition
may be filed without leave at any time before an answer is filed but thereafter
only with leave of the Court.
(2) A petition may be
amended without leave at any time before an answer is filed but thereafter only
with leave of the Court.
(3) Subject to paragraph (4)
an application for leave under this Rule –
(a) must,
if no notice of intention to defend has been given by any opposite party, be
made ex parte
by filing an affidavit;
(b) may,
if every opposite party who has given notice of intention to defend consents in
writing to the supplemental petition being filed or the petition being amended,
be made ex parte
by filing the supplemental petition or a copy of the petition as proposed to be
amended together with such consents in writing; and
(c) must,
in any other case, be made by summons to be served, unless otherwise directed,
on every opposite party.
(4) The Court may, if it
thinks fit, require an application for leave under paragraphs (3)(b) and
(c) to be supported by an affidavit.
(5) Any affidavit required
to be filed in pursuance of paragraph (3)(a) or (4) must verify the new
facts of which the deponent has personal cognisance and depose as to belief in
the truth of the other new facts alleged.
(6) An order made under this
Rule shall –
(a) where
any party has given notice of intention to defend, fix the time within which
that party’s answer must be filed or amended;
(b) if
made after the Greffier has issued a certificate under Rule 28, provide
for a stay of the hearing until the Greffier has issued a new certificate.
(7) Unless otherwise
directed, a copy of the supplemental petition or of the amended petition,
together with a copy of the order (if any) made under this Rule and an
acknowledgement of service in Form 4, so far as such form is applicable,
must be served upon the respondent and co-respondent and, in the case of a
respondent or co-respondent not named in the original petition, the
supplemental petition or amended petition must be accompanied by a notice of proceedings
in accordance with Form 3 or, as the case may be, Form 7, and a form
of acknowledgement of service in accordance with Form 4, so far as such
form is applicable, and the provisions of Rules 9 to 11 shall apply to the
supplemental or amended petition as they apply to the original petition.
15 Interveners
(1) If an allegation is
made in a petition against a person who is not made either a respondent or
co-respondent under Rule 6, the Court may order that a copy of the
petition be served on that person accompanied, in lieu of a notice of
proceedings, by a notice in Form 7, and an acknowledgement of service in
Form 4, so far as such form is applicable.
(2) Service of a copy of
the petition under an order pursuant to paragraph (1) must, unless
otherwise directed, be effected, and proof of service given, in the manner
provided for by Rules 9, 10 and 11 in the case of service of a copy of a
petition on a co-respondent.
(3) Unless otherwise
directed, a party intervening must join in the proceedings at the stage the
proceedings have reached at the time that party appears, and his or her name
must appear thereafter in the title to the cause.
(4) References in this Rule
to a petition include references to a supplemental or amended petition.
16 Filing
of answer to petition
(1) Subject to paragraph (2)
and to Rules 13 and 17, a respondent or co-respondent who –
(a) wishes
to defend the petition or to dispute any of the facts alleged in it;
(b) being
the respondent wishes to make in the proceedings any allegation against the
petitioner in respect of which the respondent prays for relief; or
(c) being
the respondent to a petition to which Article 10(1) of the Law applies,
wishes to oppose the grant of a decree on the ground mentioned in that Article,
must, within 14 days after the expiration of the time limited
for giving notice of intention to defend, file an answer to the petition.
(2) If the time limited for
giving notice of intention to defend has expired, and the Greffier’s
certificate under Rule 28 has been issued, the time for filing an answer
shall be deemed to have expired, notwithstanding that 14 days have not
elapsed.
16A Supplemental:
answer praying for decree of nullity on ground of issue of interim gender
recognition certificate[10]
(1) This Rule applies to an
answer under Rule 16(1) that prays for a decree of nullity under Article 18(1)(g)
of the Law.
(2) The respondent must,
unless otherwise directed, file with the answer a copy of an interim gender
recognition certificate issued to the respondent or to the petitioner, as the
case may be.
16B Supplemental:
answer praying for decree of nullity on ground that petitioner’s change
of gender would be recognized by an approved jurisdiction[11]
(1) This Rule applies to an
answer under Rule 16(1) that prays for a decree of nullity under Article 18(1)(h)
of the Law.
(2) Unless otherwise
directed, the answer must contain particulars of the conditions satisfied and
steps taken in the approved jurisdiction that are –
(a) prescribed;
or
(b) relied
upon to satisfy the Court that, but for the fact that the parties are still
married, the petitioner’s change of gender would be recognized by that
jurisdiction.
(3) The respondent must
file such documents as the Greffier may direct in support of an answer to which
this Rule applies.
16C Supplemental:
answer praying for decree of nullity on ground of petitioner’s gender
having become acquired gender at time of marriage[12]
Where an answer under Rule 16(1) prays for a decree of nullity under
Article 18(1)(i) of the Law and a full gender recognition certificate has
been issued to the petitioner, the respondent must file a copy of the full
certificate with the answer, unless otherwise directed.
17 Pleadings
out of time
No pleading shall be filed out of time without leave of the Court
after the Greffier’s certificate has been issued under Rule 28.
18 Contents
of answer and subsequent pleadings
(1) If an answer, reply or
subsequent pleading contains more than a simple denial of the facts stated in
the petition, answer or reply, as the case may be, the pleading must set out
with sufficient particularity the facts relied on but not the evidence by which
they are to be proved.
(2) Unless otherwise
directed, an answer by a husband or wife who disputes any statement required by
Rule 5(1)(f)(g)(h) and (i) to be included in the petition must contain full
particulars of the facts relied on.
(3) Rule 5(7) shall,
where appropriate, apply with the necessary modifications to a respondent's
answer as it applies to a petition save that it shall not be necessary to
include in the answer any claim for costs against the petitioner.
(4) If an answer to any
petition contains a prayer for relief, it must contain the information required
by Rule 5(1)(k) in the case of the petition in so far as it has not been
given by the petitioner.
(5) An answer containing a
claim for a residence order in respect of any minor child of the family must be
accompanied by a separate written statement containing the information required
by Form 5.
(6) A party cited or person
named in an answer who has given notice of intention to defend the answer and
wishes to defend all or any of the charges made therein must, within
14 days after the expiration of the time limited for giving notice of
intention to defend, file an answer to the charges by sending it by post or by
leaving it at the Judicial Greffe.
(7) Every answer or
subsequent pleading, if settled by an advocate or solicitor, must be signed by
that person and, if not so settled, must be signed by the party filing it.
19 Filing
of reply and subsequent pleadings
(1) A petitioner may file a
reply to an answer within 14 days after having received a copy of the
answer.
(2) If the petitioner does
not file a reply to an answer, the petitioner shall, unless the answer prays
for a decree, be deemed, on making an application under Rule 28, to have
denied every material allegation of fact made in the answer.
(3) No pleading subsequent
to a reply shall be filed without leave of the Court.
19A Supplemental:
reply to answer praying for decree of nullity on ground relating to gender
recognition[13]
(1) This Rule applies where
an answer is filed under Rule 16(1) which prays for a decree of nullity
under –
(a) Article 18(1)(g)
of the Law and an interim gender recognition certificate has been issued to the
petitioner;
(b) Article 18(1)(i)
of the Law and a full gender recognition certificate has been issued to the petitioner.
(2) Where the petitioner files
a reply under Rule 19(1) to the answer, he or she must, unless otherwise
directed, file with it a copy of the interim certificate or the full
certificate, as the case may be.
20 Supplemental
answer and amendment of pleadings
Rule 14 shall apply, with the necessary modifications, to the
filing of a supplemental answer, and the amendment of a pleading or other
document not being a petition, as it applies to the filing of a supplemental
petition and the amendment of a petition.
21 Particulars
(1) A party on whom a
pleading had been served may in writing request the party whose pleading it is
to give particulars of any allegation or other matter pleaded and, if that
party fails to give the particulars within a reasonable time, the party
requiring them may apply for an order that the particulars be given.
(2) The request or order in
pursuance of which particulars are given must be incorporated with the
particulars, each item of the particulars following immediately after the
corresponding item of the request or order.
(3) A party giving
particulars, whether pursuant to an order or otherwise must file a copy of them
within 24 hours of giving them to the party requesting them.
22 Delivery
of subsequent pleadings
A copy of every answer (other than an answer which is required to be
served in the same manner as a copy of a petition), reply and subsequent
pleading must, within 24 hours after it is filed, be delivered to the
opposite parties or their advocates or solicitors.
PART 3
PREPARATION FOR TRIAL
23 Discovery
by interrogatories
(1) A party to a cause may
by leave deliver interrogatories in writing for the examination of an opposite
party.
(2) A copy of the
interrogatories proposed to be delivered must be filed when the summons is
issued and a further copy must be served with the summons.
(3) Interrogatories must,
unless otherwise ordered, be answered by affidavit to be filed within 14 days.
24 Discovery
and inspection of documents
(1) The Court may order any
party to a cause to furnish any opposite party with a list of the documents
which are or have been in the party’s possession, custody or power
relating to any matter in question in the cause, and to verify such list by
affidavit.
(2) An order under
paragraph (1) may be limited to such documents or classes of documents
only, or to such only of the matters in question in the cause, as may be
specified in the order.
(3) If it is desired to
claim that any documents are privileged from production, the claim must be made
in the list of documents with a sufficient statement of the grounds of the
privilege.
(4) A party who has
furnished any opposite party with a list of documents in compliance with
paragraph (1) must allow the other party to inspect the documents referred
to in the list (other than any which the furnishing party objects to produce)
and to take copies thereof and, accordingly, must give the other party notice
in writing stating a time within 7 days after furnishing the list at which
the said documents may be inspected at a place specified in the notice.
(5) The Court may order any
party to a cause in whose pleadings or affidavits reference is made to any
document to produce that document for the inspection of any other party and to
permit that party to take copies thereof.
25 Medical
examination in proceedings for nullity
(1) Subject to paragraph (2),
in proceedings for nullity on the ground of impotence or incapacity to
consummate the marriage the petitioner must apply to the Greffier to determine
whether medical inspectors should be appointed to examine the parties.
(2) An application under
paragraph (1) may not be made in an undefended cause –
(a) if
the husband is the petitioner; or
(b) if
the wife is the petitioner and –
(i) it appears from
the petition that she was either a widow or divorced at the time of the
marriage in question, or
(ii) it
appears from the petition or otherwise that she has borne a child, or
(iii) a
statement by the wife that she is not a virgin is filed,
unless in any such case the petitioner is alleging his or her own
impotence or incapacity.
(3) References in
paragraphs (1) and (2) to the petitioner shall, where the cause is
proceeding only on the respondent’s answer or where the allegation of
impotence or incapacity is made only in the respondent’s answer, be
construed as references to the respondent.
(4) An application under
paragraph (1) by the petitioner must be made –
(a) if
the respondent has not given notice of intention to defend, after the time
limited for giving such notice has expired; or
(b) if
the respondent has given notice of intention to defend, after the time allowed
for filing the answer, or, if he or she has filed an answer, after it has been
filed,
and an application under paragraph (1) by the respondent must
be made after the respondent has filed an answer.
(5) If the party required
to make an application under paragraph (1) fails to do so within a
reasonable time, the other party may, if he or she is prosecuting or defending
the cause, make an application under that paragraph.
(6) In proceedings for
nullity on the ground that the marriage has not been consummated owing to the
wilful refusal of the respondent, either party may apply to the Greffier for
the appointment of medical inspectors to examine the parties.
(7) If the respondent has
not given notice of intention to defend an application by the petitioner under
paragraph (1) or (6) may be made ex parte.
(8) Paragraphs (1) to
(5) shall be deemed to apply in proceedings for nullity where the grounds of
impotence or wilful refusal are pleaded in the alternative.
(9) If the Greffier, on
hearing an application under paragraph (1) or (6), considers it expedient
to do so, the Greffier shall appoint a medical inspector or, if he or she
thinks it necessary, two medical inspectors to examine the parties and to
report to the Inferior Number the result of the examination.
(10) At the hearing of any such
proceedings as are referred to in paragraph (1) the Inferior Number may,
if it thinks fit, appoint a medical inspector or two medical inspectors to
examine any party who has not been examined or to examine further any party who
has been examined.
(11) The party on whose
application an order under paragraph (9) is made or who has the conduct of
proceedings in which an order under paragraph (10) has been made for the
examination of the other party, must serve on the other party notice of the
time and place appointed for his or her examination, and service of such notice
must be effected and proof of service must be given in the manner provided for
by Rules 9 and 11 in the case of service of a copy of a petition on a
respondent.
(12) However, if the respondent is
represented by an advocate or solicitor, service must be effected on such
advocate or solicitor, as the case may be, in the manner provided for by Rule
9.
26 Conduct
of medical examination
(1) Every medical
examination under Rule 25 must be held at the consulting room of the
medical inspector or, as the case may be, by one of the medical inspectors
appointed to conduct the examination.
(2) However, the Greffier
may, on the application of a party, direct that the examination of that party
shall be held at such other place as the Greffier thinks convenient.
(3) Every party presenting
for examination must sign, in the presence of the inspector or inspectors, a
statement that he or she is the person referred to as the petitioner or
respondent, as the case may be, in the order for the examination, and at the
conclusion of the examination the inspector or inspectors shall certify on the
statement that it was signed in his, her or their presence by the person who
has been examined.
(4) Every report made in
pursuance of Rule 25 must be filed and either party shall be entitled to be
supplied with a copy on request to the Greffier.
27 Directions
for trial of issue
The Court may direct, and a petitioner and any party to a cause who
has given notice of intention to defend may apply to the Court for directions
for, the separate trial of any issue of fact or any question as to the
jurisdiction of the Court.
28 Greffier’s
certificate and directions for trial
(1) On the application in
accordance with Form 20 of the petitioner in an undefended cause, or on
the application in accordance with Form 21 of the petitioner or of any
party who is defending a cause, the Greffier, if satisfied –
(a) that
a copy of the petition (including any supplemental or amended petition) and any
subsequent pleading has been duly served on every party required to be served;
(b) if no
notice of intention to defend has been given by any party entitled to give it,
that the time limited for giving such notice has expired;
(c) if
notice of intention to defend has been given by any party, that the time
allowed for filing an answer has expired;
(d) if
any answer has been filed, that the time allowed for filing any subsequent
pleading has expired;
(e) in
proceedings for nullity –
(i) that any
application required by Rule 25(1) has been made, and
(ii) if
an order for the examination of the parties has been made on an application
under Rule 25, that the notice required by paragraph (11) of that
Rule has been served and that the report of the inspector or inspectors has
been filed,
shall issue a certificate (the “Greffier’s
certificate”) to that effect.
(2) If the cause is an
undefended cause for divorce, judicial separation or a decree of nullity and,
in a case to which Article 7(2)(a) of the Law applies, the respondent has
filed a notice under Rule 13(1) of consent to the grant of a decree, then,
unless otherwise directed, there must be filed with the application under
paragraph (1) an affidavit by the petitioner –
(a) containing
the information required by Form 8, 8A, 9, 10 or 11 (whichever is appropriate)
as near as may be in the order there set out, together with any corroborative
evidence on which the petitioner intends to rely; and
(b) verifying,
with such amendments as the circumstances may require, the contents of any
statement of arrangements filed by the petitioner under Rule 5(5),
and the Greffier shall enter the cause on the next undefended list.[14]
(3) In the case of a
defended cause the Greffier may treat the application under paragraph (1)
as a summons for directions so as to enable the Greffier to give such
directions with regard to –
(a) the
future course of the cause;
(b) any
application made therein for ancillary relief or for an order relating to a
child; and
(c) the
provision of evidence relating to the arrangements or proposed arrangements for
the children of the family,
as appear to be necessary or desirable for securing the just,
expeditious and economical disposal of the cause or application; and the
Greffier shall give the parties notice of a date, time and place at which the
request is to be considered.
(4) In any other case the
Greffier shall enter the cause on the next defended list.
(5) The Greffier, when
issuing the Greffier’s certificate to the party that made the application
under paragraph (1), shall send a copy to the address for service of each
of the other parties to the cause.
29 Listing
of causes and fixing date of trial
(1) The Greffier shall
prepare and maintain 2 numbered lists to be known as the “undefended
list” and the “defended list” showing respectively the
undefended causes and the defended causes which are for the time being set down
for trial or hearing.
(2) The causes shall be
entered in each list in the order in which they were set down for trial or
hearing and a copy of each list shall be displayed in a public place in the
vicinity of the Royal Court.
(3) Save with the consent
of all parties and by leave of the Court no undefended cause shall be heard
until after the expiration of 10 days from the date on which it is set down for
hearing.
(4) The Court may from time
to time fix a day or days for the trial or hearing of the causes for the time
being entered in the undefended list and the first of the days so fixed shall
not be less than 10 days from the date on which it was fixed.
(5) The Greffier shall,
with the least possible delay, cause notice of the day or days so fixed to be
made public in such manner as the Court shall direct.
(6) When a cause has been
entered in the defended list, either party may apply to the Bailiff in Chambers
for a day to be fixed for the trial or hearing of the cause.
(7) The party applying
must, not less than 4 days before making an application under paragraph (6),
notify in writing the other parties to the cause of the intention to make the
application and when it is intended to make it.
(8) Save with the consent
of all parties, the day fixed for the trial or hearing of the cause must be not
less than 10 days from the date of the application.
(9) When a date has been
fixed for the trial or hearing of a cause, the party that made the application
must, within 4 days, notify that date to every party who was not present
at the hearing of the application.
(10) In all defended causes the
petitioner must, at least 2 days before the day fixed for the trial or
hearing, lodge with the Greffier the billet
containing the full names of all parties to the cause and a list of all
witnesses whom the petitioner proposes to call.
(11) Any party who is defending or
to be heard in a cause must, at least 2 days before the day fixed for the
trial or hearing, lodge with the Greffier a list of all witnesses whom that
party proposes to call.
PART 4
TRIAL ETC
30 Evidence
at trial of cause
(1) Subject to this Rule
and the Civil Evidence (Jersey)
Law 2003 and any other enactment, any fact required to be proved by the
evidence of witnesses at the trial of a cause begun by petition must be proved
by the examination of the witnesses orally and in open court.
(2) Nothing in this Rule
shall affect the power of the Court at the trial to refuse to admit any
evidence if in the interest of justice the Court thinks fit to do so.
(3) The Court may
order –
(a) that
the evidence of any witness be reduced to writing and embodied in an affidavit
which may be read at the trial on such conditions as the Court thinks
reasonable;
(b) that
the evidence of any particular fact be given at the trial in such manner as may
be specified in the order and in particular –
(i) by statement on
oath of information or belief, or
(ii) by
the production of documents or entries in books, or
(iii) by
copies of documents or entries in books, or
(iv) in
the case of a fact which is or was a matter of common knowledge either
generally or in a particular area by the production of a specified newspaper
containing a statement of that fact; and
(c) that
not more than a specified number of expert witnesses may be called.
(4) An application to the
Greffier for an order under paragraph (3) must –
(a) if no
notice of intention to defend has been given; or
(b) if
the petitioner and every party who has given notice of intention to defend
consents to the order sought; or
(c) if
the cause is undefended and the Greffier’s certificate has been issued,
be made ex parte by filing an
affidavit stating the grounds on which the application is made.
(5) Where an application is
made before the trial for an order that the affidavit of a witness may be read
at the trial or that evidence of a particular fact may be given at the trial by
affidavit, the proposed affidavit or a draft thereof must be submitted with the
application; and where the affidavit is sworn before the hearing of the
application and sufficiently states the ground on which the application is
made, no other affidavit shall be required under paragraph (4).
(6) Subject to paragraph (7),
any party may apply to the Court –
(a) for
an order authorizing the Viscount or the Greffier to take in writing, on oath
or affirmation, the evidence of any person who is a party or witness in a cause
and who is in Jersey at the time of the application; or
(b) for a
commission or for letters of request to examine a person who is a party or
witness in a cause and who is not in Jersey at the time of the application.
(7) Unless otherwise
directed, evidence taken in accordance with paragraph (6) shall not be
admissible at the trial or hearing unless the Court is satisfied that the
deponent is dead, or out of Jersey or unable from sickness or other infirmity
to attend court, in any of which cases the depositions duly certified shall be
admissible in evidence.
(8) The Court may of its
own motion or on the application of any party give such further directions for
the expeditious and efficient trial of the cause as it thinks fit.
31 Hearing
of undefended causes by Greffier
(1) The Greffier shall have
jurisdiction to hear and determine undefended causes in accordance with this
Rule.
(2) As soon as practicable
after a cause has been entered on the undefended list, the Greffier shall
consider the evidence filed by the petitioner and –
(a) if
satisfied that the petitioner has sufficiently proved the contents of the
petition and is entitled to a decree, shall so certify; or
(b) if
not so satisfied, may give the petitioner an opportunity of filing further
evidence or remove the cause from the undefended list.
(3) On the making of a
certificate under paragraph (2), a date shall be fixed pursuant to
Rule 29(4) for the pronouncement of a decree by the Greffier in open court
and the Greffier shall send to the petitioner or his or her advocate or
solicitor notice of the date and place so fixed and a copy of the certificate
but, subject to paragraph (4), it shall not be necessary for any party to
appear on that occasion.
(4) Where the petition
contains a prayer for costs, the Greffier may –
(a) if
satisfied that the petitioner is entitled to such costs, include in the
certificate a statement to that effect;
(b) if
not so satisfied, give to any party who objects to paying such costs notice
that, if that party wishes to proceed with his or her objection, the party must
attend before the Court on the date fixed in accordance with paragraph (3).
32 Right
of respondent, co-respondent or party cited to be heard on question of costs
(1) A respondent,
co-respondent or party cited may, without filing an answer, be heard on any
question as to costs, but the Greffier may at any time order any party
objecting to a claim for costs to file and serve on the party making the claim
a written statement setting out the reasons for his or her objection.
(2) A party shall be entitled
to be heard on any question pursuant to paragraph (1) whether or not the
party has filed an acknowledgement of service stating his or her wish to be
heard on that question.
(3) In proceedings after a
decree nisi of divorce or a decree of judicial separation, no order the effect
of which would be to make a co-respondent or party cited liable for costs not
directly referable to the decree shall be made unless the co-respondent or
party cited is a party to such proceedings or has been given notice of the intention
to apply for such an order.
PART 5
ARRANGEMENTS FOR CHILDREN
33 Respondent's
statement as to arrangements for children
(1) A respondent on whom
there is served a statement in accordance with Rule 5(5) may, whether or
not he or she agreed that statement, file a written statement of his or her
views on the present and proposed arrangements for the children in Form 5,
and the respondent, upon filing any such statement, must send a copy of it to
the petitioner.
(2) Any such statement of
the respondent's views must, if practicable, be filed within the time limited
for giving notice of intention to defend and in any event before the Court
considers the arrangements or proposed arrangements for the upbringing and
welfare of the children of the family.
34 Applications
relating to children of the family
(1) An application may be
made in the cause to the Court at any time before or after final decree by a
party to the cause or by any other person for an order under any provision of
Part 1 or Part 2 of the Children Law in relation to a child of the
family; and where the applicant is not a party and has obtained such leave as
is required under that Law to make the application, no leave to intervene in
the cause shall be necessary.
(2) If, while a cause is
pending, proceedings relating to any child of the family are begun in any other
court, a concise statement of the nature of the proceedings must immediately be
filed by the person beginning the proceedings or, if that person is not a party
to the cause, by the petitioner.
35 Procedure
for complying with Article 25A of the Law
(1) If no application
mentioned in Rule 34(1) is pending, the Court shall, after making a
certificate under Rule 31(2)(a), proceed to consider the matters specified
in Article 25A(1) of the Law in accordance with this Rule.
(2) If, on consideration of
the relevant evidence, including any further evidence or report provided
pursuant to this Rule and any statement filed by the respondent under
Rule 33, the Court is satisfied that –
(a) there
are no children of the family to whom Article 25A of the Law applies; or
(b) there
are such children but the Court need not exercise its powers under the Children
Law with respect to any of them or give any direction under Article 25A(2)
of the Law,
the Court shall certify accordingly and, in a case to which
sub-paragraph (b) applies, the petitioner and the respondent shall each be
sent a copy of the certificate by the Court.
(3) The Court, if not
satisfied as mentioned in paragraph (2), may, without prejudice to any
power under the Children Law or Article 25A(2) of the Law, give one or
more of the following directions –
(a) that
the parties, or any of them, file further evidence relating to the arrangements
for the children (and the direction must specify the matters to be dealt with
in the further evidence);
(b) that
a welfare report on the children, or any of them, be prepared; and
(c) that
the parties, or any of them, attend before the Court at the date, time and
place specified in the direction,
and the parties shall be notified accordingly.
(4) When a direction is
given under Article 25A of the Law, notice of the direction must be given
to the parties.
(5) In this Rule
“parties” means the petitioner, the respondent and any person who
appears to the Court to have the care of the child.
PART 6
DECREES AND ORDERS AFTER
DECREE NISI
36 Application
for rescission of decree
(1) An application by a
respondent under Article 11(2) of the Law for the rescission of a decree
of divorce must be made to the Court by summons.
(2) An application under
paragraph (1) must be supported by an affidavit setting out the
allegations on which the applicant relies.
(3) Unless otherwise
directed, the summons and supporting affidavit must be served on the petitioner
not less than 14 days before the day fixed for the hearing of the
application.
37 Application
under Article 11(3) of the Law
(1) An application by the
respondent to a petition for divorce for the Court to consider the financial
position of the respondent after the divorce must be made by notice in
Form 17.
(2) A petitioner served
with a notice in Form 17 must (unless the petitioner has already filed an
affidavit of means) within 14 days after service of the notice, file an
affidavit in answer to the application containing full particulars of property
and income, and if that is not done, the Court may order the petitioner to file
an affidavit containing such particulars.
(3) Within 14 days
after service of any affidavit under paragraph (2), or within such time as
the Court may direct, the respondent must file an affidavit in reply containing
full particulars of the respondent’s property and income unless already
given in an affidavit of means filed by the respondent.
38 Intervention
by Attorney General
(1) If the Attorney General
wishes to show cause against a decree nisi being made absolute, the Attorney
General shall give notice to that effect to the Court and to the party in whose
favour it was pronounced.
(2) Within 21 days of
giving notice under paragraph (1) the Attorney General shall file a plea
setting out the grounds on which the Attorney General desires to show cause,
together with a copy for service on the party in whose favour the decree was
pronounced and every other party affected by the decree.
(3) The Greffier shall
serve a copy of the plea on each of the persons mentioned in paragraph (2).
(4) Subject to paragraphs (5)
and (6), these Rules shall apply to all subsequent pleadings and proceedings in
respect of the plea as if it were a petition by which a cause is begun.
(5) If no answer to the
plea is filed within the time limited, or if an answer is filed and struck out
or not proceeded with, the Attorney General may move the Court forthwith to
rescind the decree and dismiss the petition.
(6) Rule 28 shall
apply to proceedings in respect of a plea by the Attorney General as it applies
to the trial of a cause, so however that if all the charges in the plea are
denied in the answer, the application for directions shall be made by the
Attorney General and in any other case it shall be made by the party in whose
favour the decree nisi has been pronounced.
39 Intervention
by person other than Attorney General
(1) If any person other
than the Attorney General wishes to show cause against a decree nisi being made
absolute and has been allowed by the Court under Article 23 of the Law to
intervene, that person must give notice to that effect to the Greffier and file
an affidavit in support stating the facts relied on and, within 24 hours
of filing, serve a copy of the notice and affidavit in support on the party in
whose favour the decree was pronounced, and on the other parties to the cause
in which the decree was pronounced.
(2) A party on whom a copy
of the affidavit has been served under paragraph (1) may, within
14 days after service, file an affidavit in answer and, if that party does
so, the party must, within 24 hours of filing, serve a copy on the person
showing cause.
(3) The person showing
cause may file an affidavit in reply within 14 days after service of the
affidavit in answer and, if that person does so, he or she must, within
24 hours of filing, serve a copy on each party who was served with a copy
of the original affidavit.
(4) No affidavit may be
served after an affidavit in reply except with the leave of the Court.
(5) A person showing cause
must apply to the Greffier for directions within 14 days after expiry of
the time allowed for filing an affidavit in reply or, if an affidavit in answer
has been filed, within 14 days after the expiry of the time allowed for
filing such an affidavit.
(6) If the person showing
cause does not apply under paragraph (5) within the time allowed, any of
the other parties may do so.
40 Rescission
of decree nisi by consent
(1) If, after a decree nisi
has been pronounced but before it has been made absolute, or after a decree of
judicial separation has been pronounced, the petitioner and the respondent have
become reconciled, either party may apply to the Greffier by summons for an
order rescinding the decree by consent.
(2) A copy of the summons
by which an application under paragraph (1) is made, in addition to being
served on the petitioner or the respondent, as the case may be, must be served
on any other party against whom costs have been awarded or who is otherwise affected
by the decree; and such other party shall be entitled to be heard.
41 Decree
absolute on lodging notice
(1) Subject to Rule 42(1)
and (2) and Rule 43, an application by a spouse to make absolute a decree nisi
pronounced in the spouse’s favour may be made by lodging with the
Greffier a notice of application in Form 12.
(2) The Greffier shall make
the decree absolute if satisfied –
(a) that
no –
(i) application for
rescission of the decree or for re-hearing of the cause,
(ii) appeal
against the decree or against the dismissal of an application for re-hearing of
the cause, or
(iii) intervention
under Rule 38 or 39,
is pending;
(b) that
the provisions of Article 11(3) to (5) of the Law do not apply or have
been complied with; and
(c) that
the provisions of Article 25A(1) of the Law have been complied with and
the Court has not given any directions under 25A(2) of the Law.
(3) However, if the notice
is lodged more than 12 months after the decree nisi, there must be lodged
with the notice an explanation in writing –
(a) giving
reasons for the delay;
(b) stating
whether the parties have lived with each other since the decree nisi and, if
so, between what dates; and
(c) stating
whether the applicant being the wife has, or being the husband has reason to believe
that his wife has, given birth to any child since the decree nisi and, if so,
stating the relevant facts and whether or not it is alleged that the child is
or may be a child of the family,
and the Greffier may require the applicant to file an affidavit
verifying the said explanation and may make such order on the application as
the Greffier thinks fit.
42 Decree
absolute on application
(1) An application by a
spouse for a decree nisi pronounced against the spouse to be made absolute may
be made by summons after the expiration of the period of 3 months specified in
Article 20(3) of the Law to the Greffier and shall be accompanied by a
notice of application in accordance with Form 12 which must be served on
the other spouse not less than 4 clear days before the day on which the
application is to be heard.[15]
(2) An order granting an
application under this Rule shall not take effect until the Greffier is
satisfied as to the matters mentioned in Rule 41(2).
(3) In the following cases
an application for a decree nisi to be made absolute must be made by summons,
that is to say –
(a) where
the Attorney General gives to the Court and to the party in whose favour the
decree was pronounced a notice requiring more time to decide whether to show
cause against the decree being made absolute and the notice has not been
withdrawn; or
(b) where
there are other circumstances which ought to be brought to the attention of the
Court before the decree nisi is made absolute.
(4) Unless otherwise
directed, the summons by which the application is made must be served on every
party to the cause (other than the applicant) and, in a case to which paragraph (1)(a)
applies, on the Attorney General.
43 Expedition
of decree absolute
(1) No decree nisi may be
made absolute until after the expiration of 6 weeks from the pronouncing
of the decree.
(2) However, an application
to expedite the grant of a decree absolute may be made –
(a) in
person to the Court at the hearing of the case; or
(b) if
some matter arises after the decree nisi making it desirable that the decree
absolute should be expedited, to the Court by summons supported by an
affidavit.
44 Certificate
of decree absolute
A certificate in Form 13 or Form 14, whichever is
appropriate, that the decree has been made absolute shall be prepared and filed
by the Greffier and the certificate shall be authenticated by fixing to it the
seal of the Court.
45 Reversal
of decree of judicial separation
(1) A petition to the Court
for the reversal of a decree of judicial separation must set out particulars of
the decree which the Court will be requested to reverse and the grounds on
which the petitioner relies.
(2) The party in whose
favour the decree was pronounced may file an answer within 14 days after
service of a copy of the petition on that party.
(3) Except as provided in
paragraph (2), all proceedings on the petition shall be carried on in the
same manner, so far as practicable, as proceedings on a petition for judicial
separation.
45A Saving for certain
decrees of nullity absolute on pronouncement[16]
Nothing in this Part
affects a decree of nullity under Article 18(1)(g) or (h) of the Law that
is absolute on pronouncement in accordance with the proviso to Article 20(1)
of the Law.
PART 7
ANCILLARY RELIEF
46 Application
of this Part
(1) The procedures set out
in this Part apply to any ancillary relief applications and to any application
under Article 11(3) of the Law.
(2) In this Part, unless
the context otherwise requires –
“applicant” means the party applying for ancillary
relief;
“respondent” means the respondent to the application for
ancillary relief.
47 Overriding
objective
(1) The overriding
objective of the Court is to deal with cases justly.
(2) Dealing with a case
justly includes, so far as is practicable –
(a) ensuring
that the parties are on an equal footing;
(b) saving
expense;
(c) dealing
with the case in ways that are proportionate –
(i) to the amount of
money involved,
(ii) to
the importance of the case,
(iii) to
the complexity of the issues, and
(iv) to
the financial position of each party;
(d) ensuring
that it is dealt with expeditiously and fairly; and
(e) allotting
to it an appropriate share of the court's resources, while taking into account
the need to allot resources to other cases.
(3) The Court shall seek to
give effect to the overriding objective when it –
(a) exercises
any power given to it by this Part; or
(b) interprets
any Rule.
(4) The parties must help
the Court to further the overriding objective.
(5) The Court shall further
the overriding objective by actively managing cases.
(6) Active case management
includes –
(a) encouraging
the parties to co-operate with each other in the conduct of the proceedings;
(b) encouraging
the parties to settle their disputes through mediation, where appropriate;
(c) identifying
the issues at an early date;
(d) regulating
the extent of disclosure of documents and expert evidence so that they are
proportionate to the issues in question;
(e) helping
the parties to settle the whole or part of the case;
(f) fixing
timetables or otherwise controlling the progress of the case;
(g) making
use of technology; and
(h) giving
directions to ensure that the trial of a case proceeds quickly and efficiently.
48 Right
to be heard on ancillary questions
A respondent may be heard on any question of ancillary relief
without filing an answer and whether or not the respondent has returned to the
Greffier an acknowledgement of service stating his or her wish to be heard on
that question.
49 Application
for ancillary relief
(1) Any application by a
petitioner, or by a respondent who files an answer claiming relief
for –
(a) child
maintenance;
(b) interim
maintenance;
(c) spousal
maintenance;
(d) a
secured provision order;
(e) a
lump sum payment;
(f) a
variation of settlement order; or
(g) a transfer,
sale or settlement of property order,
must be made in the petition or answer, as the case may be.
(2) However, an application
for ancillary relief that should have been made in the petition or answer may
be made subsequently by leave of the Court, either by notice in Form 16 or
at the hearing.
(3) A notice of intention
to proceed with an application for ancillary relief made in the petition or
answer or an application for ancillary relief must be made by notice in
Form 16.
(4) An application by a petitioner
or respondent for ancillary relief, not being an application that is required
to be made in the petition or answer, must be made by notice in Form 16.
(5) The terms of the order
requested must be specified in the notice, and an application relating to
immovable property must identify the property and give particulars, so far as
is known to the applicant, of any hypothec or other charge.
(6) No application for
secured provision order, lump sum payment, variation of settlement order or for
transfer, sale or settlement of property may be made by a respondent who has
not filed an answer claiming relief within 2 months of final decree except
with leave of the Greffier.
(7) An application for
leave under paragraph (6) must be made to the Greffier by summons
supported by an affidavit accounting for the delay.
50 Application
by parent, guardian, etc for ancillary relief in respect of children[17]
Any of the following persons, namely –
(a) a parent or guardian of
any child of the family;
(b) any person in whose
favour a residence order has been made with respect to a child of the family,
and any applicant for such an order;
(c) any other person who is
entitled to apply for a residence order with respect to a child;
(d) the Minister for
Children and Families, where an order has been made under Article 24 of
the Children Law placing a child in the care of the Minister; and
(e) a child of the family
who has been given leave to intervene in the cause for the purpose of applying
for maintenance or secured provision,
may apply for an order for ancillary relief in respect of that child
by notice in Form 16.
51 Separate
representation of children on certain applications
(1) If an application is
made to the Court for a variation of settlement order, the Court may, if
satisfied that the proposed variation might adversely affect the rights or
interests of any children concerned, direct that the children be separately
represented on the application and may appoint a guardian ad litem of the children for the purpose of the
application.
(2) On any other
application for ancillary relief the Court may give such a direction or make
such appointment as it is empowered to give or make by paragraph (1).
(3) Before a person is
appointed guardian ad litem under this Rule,
the Court must be satisfied that that person has no interest in the matter
adverse to that of the children and is a proper person to be such guardian.
(4) This Rule is without
prejudice to Rule 64.
52 Information
required on an application for ancillary relief consent order
(1) Subject to paragraphs (2)
and (3), there must be lodged with every application for a consent order for
ancillary relief 2 copies of a draft of the order in the terms sought, one
of which must be indorsed with a statement signed by the respondent to the
application signifying the respondent’s agreement, and a statement of
information form, which must include –
(a) the
duration of the marriage, the age of each party and of any minor or dependent
child of the family;
(b) an
estimate in summary form of the approximate amount or value of the capital
resources and net income of each party and of any minor child of the family;
(c) what
arrangements are intended for the accommodation of each of the parties and any
minor child of the family;
(d) whether
either party has remarried or is cohabiting with another person, or has any
present intention to marry or to cohabit with another person;
(e) if
the terms of the order provide for a transfer of property, a statement
confirming that any person in whose favour any hypothecary or other charge has
been subscribed in respect of that property has been served with notice of the
application and that no objection to such a transfer has been made by the
mortgagee within 14 days from such service; and
(f) any
other especially significant matters.
(2) If an application is
made for a consent order varying an order for periodical payments, it shall be
sufficient compliance with paragraph (1) if the statement of information
required to be lodged with the application includes only the information in
respect of net income mentioned in paragraph (1)(b), and an application
for a consent order for interim periodical payments pending the determination
of an application for ancillary relief may be made in like manner.
(3) If all or any of the
parties attend the hearing of an application for financial relief the Court may
dispense with the lodging of a statement of information in accordance with
paragraph (1) and give directions for the information which would
otherwise be required to be given in such a statement to be given in such a
manner as it sees fit.
53 Notice
of preliminary directions hearing (“PDH”)
(1) Upon the filing of
Form 16 the Greffier shall give the applicant a date for a preliminary
directions hearing (in these Rules abbreviated to “PDH”).
(2) The applicant must then
serve on the other party a copy of Form 16 with the date and time of the
PDH endorsed on it giving not less than 2 clear days notice of the PDH.
(3) The notice required by
paragraph (2) may be given by sending it to the last known address of a
party that does not have, or is not deemed to have, an address for service.
(4) If a party seeking
ancillary relief has not filed Form 16 within 6 months of the issue
of the decree nisi, the Greffier may, of the Greffier’s own motion, after
giving not less than 28 days’ notice in writing to all parties to
the cause and after having given the parties an opportunity to be heard, order
that any application for ancillary relief be dismissed and may make such
consequential order as to costs, or otherwise, as he or she thinks fit.
54 Procedure
at PDH
(1) The legal
representatives of the parties must attend the PDH or, if any party is
unrepresented, that party must attend the PDH in person.
(2) At the PDH, the
Greffier may give or make any of the directions or orders mentioned in
Rule 55(1) and, in particular, directions or orders relating to the case
review hearing under Rule 56.
55 Directions
and orders in ancillary relief proceedings
(1) The Court may at any
stage of proceedings in connexion with ancillary relief after the issue of a
summons or of its own motion give directions and make orders –
(a) as to
the date of any subsequent proceedings (including the fixing of further
appointments for any purpose);
(b) as to
the service of any pleading, Form, statement or document by or on any party to
or person in the proceedings;
(c) as to
anything required to be stated in any pleading, Form, statement or document in
the proceedings;
(d) about –
(i) the valuation of
assets,
(ii) obtaining
and exchanging expert evidence, and
(iii) evidence
to be adduced by each party and, if appropriate, as to a statement of the
issues between the parties and chronologies or schedules to be filed by each
party;
(e) as to
affidavits (including affidavits of means);
(f) as
to being at liberty to make an application to the Court in the proceedings;
(g) as to
the rights of third parties (including trustees or hypothecary creditors or
secured parties in relation to security interest) in connexion with the matters
mentioned in sub-paragraphs (b) and (f);
(h) as to
the forum for any subsequent proceedings;
(i) that
the cause or proceedings be adjourned for alternative dispute resolution,
out-of-court mediation or private negotiation;
(j) in
relation to costs; or
(k) otherwise
conducive to attaining in the cause the overriding objective set out in Rule
47.
(2) A party may apply to
the Court for an order that any person attend an appointment (an
“inspection appointment”) before the Court and produce any
documents to be specified or described in the order, the inspection of which
appears to the Court to be necessary for disposing fairly of the application for
ancillary relief or for saving costs.
(3) No person shall be
compelled by an order under paragraph (2) to produce a document at an
inspection appointment which that person could not be compelled to produce at
the hearing of the application for ancillary relief.
(4) The Court shall permit
any person attending an inspection appointment pursuant to an order under
paragraph (2) to be represented at the appointment.
56 Case
review hearing
(1) The case review hearing
shall be conducted with the objective of defining the issues and saving costs.
(2) At the hearing the
Greffier –
(a) shall
determine the extent to which any questions seeking further information must be
answered, and give directions for the production of such further documents as
may be necessary;
(b) shall
give directions, if not already given at the PDH, about –
(i) the valuation of
assets (including, where appropriate, the joint instruction of joint experts),
(ii) obtaining
and exchanging expert evidence, if required, and
(iii) evidence
to be adduced by each party and, if appropriate, about further chronologies or
schedules to be filed by each party;
(c) may,
without prejudice to Rule 55(1), direct any one or more of the
following –
(i) that a further
case review hearing be fixed,
(ii) that
an appointment be fixed for the making of an interim order,
(iii) that
the case be fixed for final hearing and, if that direction is given, the
Greffier shall determine whether or not the case is to be heard by the Inferior
Number, or
(iv) that
the case be adjourned for alternative dispute resolution, to include mediation,
or for private negotiation or, in exceptional circumstances, generally; and
(d) may
make an interim order if an application for it has been made not less than 3
days beforehand.
(3) Both parties must attend
the hearing in person unless the Greffier orders otherwise.
57 Summons
for directions
(1) A party may apply at
any stage of the proceedings for further directions by filing a summons in Form
15.
(2) Rule 53 shall
apply to the fixing of a date for the hearing of the summons as it applies to a
PDH.
(3) When, in the opinion of
the Court, or a party alleges that, an application for ancillary relief gives
rise to a contested issue of conduct of a nature likely materially to affect
the question whether any, or what, order should be made, application must be
made to the Greffier by summons for directions as to the filing and service of
pleadings relative to the application and as to the further conduct of the
proceedings.
58 Costs
At any court hearing or appointment any party may be requested
produce to the Court an estimate of the costs incurred by that party.
59 Hearing
of application for ancillary relief
(1) At the hearing of an
application for ancillary relief the Greffier shall, subject to Rules 60 and 61
investigate the allegations made in support of and in answer to the
application, and may take evidence orally and may at any stage of the
proceedings, whether before or during the hearing, order the attendance of any
person for the purpose of being examined or cross-examined and order the
disclosure and inspection of any document or require further statements.
(2) A statement filed under
paragraph (1) shall be sworn to be true.
(3) Each party to the
application must, at least 2 days before the day fixed for the hearing of
the application, file a list containing the full names of all witnesses whom
that party proposes to call.
60 Order
on application for ancillary relief
(1) Subject to
Rule 61, the Greffier shall, after completing the investigation under Rule 59(1),
make such order as the Greffier thinks just.
(2) Pending the final
determination of the application, the Greffier may make an interim order upon
such terms as the Greffier thinks just.
61 Reference
of application to Inferior Number
The Greffier may at any time refer an application for ancillary
relief, or any question arising on such an application, to the Inferior Number
for its decision.
PART 8
MISCELLANEOUS
62 Appeals
against orders and decisions of the Greffier
(1) An appeal shall lie to
the Inferior Number from any order or decision of the Greffier.
(2) Any party to a cause
affected by an order or decision of the Greffier, other than an interlocutory
order, may apply to the Greffier, within 7 days of the order or decision,
to give reasons for having made it.
(3) The Greffier shall
deliver reasons for the decision to the applicant and to every other party to
the proceedings as soon as practicable, but, in any event, within 2 months
of the application.
(4) The appeal shall be
brought by the appellant serving on every other party a notice of appeal in
Form 18 and general grounds of appeal in Form 19, copies of which
must also be delivered to the Greffier.
(5) Forms 18
and 19 must be served within 10 days after the Greffier has delivered
reasons in accordance with paragraph (3).
(6) Any party may bring a
cross-appeal within 10 days of receiving a notice of appeal from any other
party.
(7) Upon receipt of
Forms 18 and 19, the Greffier shall order the preparation of a
transcript of any evidence taken at the hearing before the Greffier, in
accordance with Rule 65, at the cost of the appellant.
(8) Within 14 days
after filing Forms 18 and 19, the appellant must, having given due
notice to every other party, attend before the Bailiff’s Secretary to fix
a date for the hearing of the appeal.
(9) If the appellant does
not fix a date for the hearing in accordance with paragraph (8), the
appeal shall be deemed to have been abandoned.
(10) Within 21 days of
receiving the transcript, or within 21 days of delivery of the
Greffier’s reasons if no evidence was taken at the hearing before the
Greffier, the appellant must serve on the respondent and on any other party to
the appeal the appellant’s contentions together with any reports,
affidavits and authorities upon which the appellant intends to rely at the
hearing of the appeal.
(11) Within 21 days of the
receipt of a copy of the appellant’s contentions, reports, affidavits and
authorities, the respondent and any other party to the appeal must file his or
her contentions together with any reports, affidavits and authorities upon
which each intends to rely at the hearing of the appeal.
(12) No later than 5 clear days
before the date fixed for the hearing of the appeal, the appellant and any
other party to the appeal must lodge with the Greffier the contentions,
reports, affidavits, authorities and any other pleadings which that party
proposes to use and lodge 3 copies thereof with the Bailiff’s Secretary.
(13) Unless the Court otherwise
directs, an appeal under this Rule does not operate as a stay of the order or
decision appealed against.
63 Minors
and persons of unsound mind
(1) The tuteur of a minor, the guardian of a child or the
curator of a person under curatorship may commence, prosecute, defend,
intervene or make any application in any cause.
(2) A minor who has no tuteur and a person of unsound mind who has no
curator may apply to the Greffier ex parte
through his or her next friend, for the appointment of a guardian ad litem, by whom he or she may commence,
prosecute, defend, intervene or make any application in, any cause to which
these Rules relate.
(3) When in any cause any
document is required to be served, and the person on whom service is to be
effected is a minor, that document must, unless otherwise directed, be served
on the tuteur or guardian ad litem of the minor or, if there be neither, upon
the person with whom the minor resides or under whose care the minor is, and
service so effected shall be deemed good service on the minor, provided that
the Greffier may order that service made, or to be made, on the minor shall be
deemed good service.
(4) When in any cause any
document is required to be served, and the person on whom service is to be
effected is of unsound mind, that document must, unless otherwise directed, be
served on the curator or guardian ad litem of
such person or, if there be neither, upon the person with whom the person of
unsound mind resides, or under whose care he or she is, and service so effected
shall be deemed to be good service upon the person of unsound mind.
(5) In spite of paragraphs (3)
and (4), the Greffier may order that service effected, or to be effected, on a
minor or person of unsound mind be deemed good.
(6) If a petition or answer
has been served on a minor or person of unsound mind, and no notice of
intention to defend has been given by or on behalf of the minor or person of
unsound mind, or if an order of justice or originating summons has been served
on a minor or person of unsound mind, the party at whose instance the petition,
answer, order of justice or originating summons was served must, before
proceeding further, apply to the Greffier for an order that some proper person
be appointed guardian ad litem of the minor
or person of unsound mind.
64 Separate
representation of children
If in any matrimonial proceedings it appears to the Court that a
child ought to be separately represented, the Court may appoint an advocate or
solicitor or some other proper person (provided in any case that the person
consents) to be the guardian ad litem
of the child, with authority to take part in the proceedings on the
child’s behalf.
65 Transcript
of evidence
(1) Unless the Court
otherwise directs, a digital or tape recording shall be made of the sworn
evidence at the hearing of –
(a) any
defended proceedings for divorce, judicial separation or nullity;
(b) an
application –
(i) for ancillary
relief, or
(ii) in
relation to a child.
(2) The Attorney General,
the petitioner and any other party who at any time has given notice of
intention to defend or intervene in the suit shall be entitled to require a
transcript of proceedings in the suit and the Greffier shall, on the request of
any person so entitled, furnish that person with a transcript of the whole or
any part of the transcript on payment by that person of the charge on the same
scale as that fixed by Rules of Court for transcripts of proceedings under
Parts 1 and 3 of the Court of Appeal (Jersey) Law 1961.
(3) The costs of the
transcript shall be included in the recoverable costs of the cause, provided
that the Greffier may direct a party who brings an appeal in accordance with
Rule 62 to pay the costs of the transcript in the first instance.
66 Correction
of judgment and orders
Clerical mistakes in judgments or orders, or errors arising therein
from any accidental slip or omission, may at any time be corrected by the Court
on summons without an appeal.
67 Affidavits
An affidavit for the purpose of the Law or these Rules made in
Jersey must be made before the Bailiff, a Jurat or a notary public, or
otherwise in accordance with the Affidavits (Advocates and
Solicitors) (Jersey) Law 1992 and, if made elsewhere, be made before a person
authorized to take affidavits in the place where it is made.
68 Notice
of file number
(1) When an originating
summons or a petition is filed at the Judicial Greffe the cause will be
allotted a file number which must be indorsed at the top right hand corner of
all documents filed subsequently.
(2) A notice of the file
number shall be sent by the Greffier to the advocate or solicitor or, if the
petitioner is acting in person, to the petitioner who filed the originating
summons or the petition.
69 Change
of advocate or solicitor
Any party may change his or her advocate or solicitor at any stage
of the proceedings but, until notice of any such change is filed by the new
advocate or solicitor and copies of the notice are served on every other party
to the proceedings (not being a party in default), the former advocate or
solicitor shall be taken to be the advocate or solicitor of the party.
70 Entries
in the Public Registry
The Court may give directions for the making in the Public Registry
of all such entries as the circumstances of the case may require in accordance
with Rule 18 of the Royal Court Rules 2004.
71 Directions
The Greffier may, with the concurrence of the Bailiff, issue
directions for the purpose of securing due observance of statutory requirements
and uniformity of practice in matrimonial proceedings.
72 Citation
These Rules may be cited
as the Matrimonial Causes Rules 2005.