Jersey Law 22/1949
MATRIMONIAL CAUSES (JERSEY) LAW, 1949.
____________
A LAW to
empower the Royal Court to grant decrees of dissolution and nullity of
marriage, of judicial separation and of restitution of conjugal rights, and to
make provision for matters incidental thereto, sanctioned by Order of His
Majesty in Council of the
25th day of NOVEMBER, 1949.
(Registered on the 17th day of
December, 1949).
____________
STATES OF JERSEY.
____________
The 10th day of
August, 1949.
____________
THE STATES, subject to the sanction of
His Most Excellent Majesty in Council, have adopted the following Law : -
ARTICLE 1
GENERAL DEFINITIONS
In this Law, unless the context otherwise requires –
“cause” and “suit” include any proceedings
in which there is an applicant, petitioner or plaintiff ;
“the court” has the meaning assigned thereto by Article
3 ;
“habitual drunkard” means a person who habitually and
intemperately drinks intoxicating liquor, or habitually takes or uses,
otherwise than in accordance with medical advice, opium or any other dangerous
drug ;
“prescribed” means prescribed by rules of court.
ARTICLE
2
INSANITY DEFINITION
(1) For
the purposes of Article 7 of this Law, a person of unsound mind shall be deemed
to be under care and treatment –
(a)
while he is detained in
pursuance of the “Loi (1890) sur la regie et l’administration de
l’asile public pour les alienes” or of an order under the
“Loi (1883) pour la regie et l’administration des maisons
d’alienes licenciees”; or
(b)
while he is detained in
pursuance of any order or inquisition under the Lunacy and Mental Treatment
Acts, 1890 to 1930 (being Acts of the Imperial Parliament), or of any order or
warrant under the Army Act, the Air Force Act, the Naval Discipline Act, the
Naval Enlistment Act, 1884, or the Yarmouth Naval Hospital Act, 1931 (being
Acts of the Imperial Parliament), or is being detained as a criminal lunatic or
in pursuance of an order made under the Criminal Lunatics Act, 1884 (being an
Act of the Imperial Parliament) ; or
(c)
while he is detained in
pursuance of any order or warrant for his detention or custody as a lunatic
under the Lunacy (Scotland) Acts, 1857 to 1919 (being Acts of the Imperial
Parliament) ; or
(d)
while he is detained in
pursuance of any order for his detention or treatment as a person of unsound
mind or a person suffering from mental illness made under any law for the time
being in force in Northern Ireland, the Bailiwick of Guernsey or the Isle of
Man (including any such law relating to criminal lunatics) ; or
(e) while
he is receiving mental treatment as a voluntary patient under the “Loi
(1883) pour la regie et l’administration des maisons d’alienes
licenciees” or under the Mental Treatment Act, 1930 (being an Act of the
Imperial Parliament) or under any such law as is mentioned in sub-paragraph (d)
of this paragraph, being treatment which follows without any interval a period
during which he was detained as mentioned in the foregoing provisions of this
paragraph ;
and not otherwise.
(2) In
this Article –
the “Loi (1890) sur la regie et l’administration de
l’asile public pour les alienes” means the Law passed by the States
on the thirtieth day of January, 1890, and confirmed by Order of Her Majesty in
Council of the twenty-first day of March, 1890, as amended by any subsequent
enactment;
the “Loi (1883) pour la regie et la surveillance des maisons
d’alienes licenciees” means the “Reglement” passed by
the States on the twenty-second day of January, 1883, and confirmed by Order of
Her Majesty in Council of the third day of March, 1883, as amended by any
subsequent enactment.
ARTICLE 3
JURISDICTION OF THE ROYAL COURT IN MATRIMONIAL CAUSES
(1) Subject
to the provisions of Article 45 of this Law, jurisdiction shall be vested in
and exercised by a division of the Royal Court to be called the Matrimonial
Causes Division (in this Law referred to as “the court”) in all
suits for divorce, suits for judicial separation, suits for restitution of
conjugal rights, suits for nullity of marriage, applications by a husband or
wife for a decree of presumption of death of the other spouse and dissolution
of marriage thereupon, and all other matrimonial causes, suits and matters
triable under this Law or otherwise in the Island.
(2) In
the authentication of decrees, orders and other instruments and copies thereof,
the Judicial Greffier may describe himself as Registrar.
ARTICLE 4
THE BAILIFF, JURATS AND OFFICERS OF THE COURT
(1) Subject
to the provisions of this Law and to rules of court, the Bailiff, Jurats,
Attorney General, Viscount, Solicitor General and Judicial Greffier shall
perform duties in the court analogous to those performed by them respectively
in the “Samedi” division of the Royal Court immediately before the
commencement of this Law.
(2) If
the office of Bailiff, Attorney General, Viscount, Solicitor General or
Judicial Greffier be vacant, or if the holder of any such office be prevented
by absence from the Island, illness or other lawful cause, from performing the
duties of his office, then the duties under this Law of the holder of such
office shall be performed by the person who is for the time being discharging
the duties of such office.
ARTICLE 5
SEAL OF THE COURT
(1) The
Superior Number of the Royal Court shall cause a seal to be made for the court
and may cause the same to be from time to time broken, altered and renewed at
its discretion.
(2) All
decrees, orders and other instruments, and copies thereof, respectively,
purporting to be sealed with the seal of the court shall be received in
evidence without further proof thereof.
ARTICLE 6
JURISDICTION
(1) Subject
to the provisions of paragraphs (4) and (5) of this Article, the court shall
not have jurisdiction in any suit for divorce or nullity of marriage unless the
husband is domiciled in the Island when the proceedings are instituted.
(2) Subject
to the provisions of paragraph (4) of this Article, the court shall not have
jurisdiction in any suit for judicial separation or restitution of conjugal
rights unless –
(a) the husband is
domiciled in the Island when the proceedings are instituted ; or
(b) the husband and the
wife are resident in the Island when the proceedings are instituted.
(3) Subject
to the provisions of paragraph (4) of this Article, the court shall not have
jurisdiction in any suit for presumption of death unless the petitioner is
domiciled in the Island when the proceedings are instituted.
(4) Where
a wife has been deserted by her husband or where her husband has been deported
from the British Islands under any enactment for the time being in force
relating to the deportation of aliens,
and the husband was immediately before the desertion or deportation
domiciled in the Island, the court shall have jurisdiction for the purpose of
any proceedings under this Law, notwithstanding that the husband has changed
his domicile since the desertion or deportation.
(5) In
any suit by a wife for divorce or nullity of marriage, the court shall have
jurisdiction, notwithstanding that the husband is not domiciled in the Island,
if –
(a) the wife is resident in
the Island and has been ordinarily resident therein for a period of three years
immediately preceding the commencement of the proceedings ; and
(b) the husband is not
domiciled in any other part of the British Islands.
ARTICLE 7
GROUNDS OF PETITION FOR DIVORCE
A petition for divorce may be presented to the court by either the
husband or the wife on the ground that the respondent –
(a) has since the
celebration of the marriage committed adultery ; or
(b) has deserted the
petitioner without cause for a period of at least three years immediately
preceding the presentation of the petition ; or
(c) has since the
celebration of the marriage treated the petitioner with cruelty ; or
(d) is incurably of unsound
mind and has been continuously under care and treatment for a period of at least
five years immediately preceding the presentation of the petition ; or
(e) is,
by reason of the commutation of a death sentence, undergoing imprisonment for
life or in confinement as a criminal lunatic, or is serving a sentence of
imprisonment for a term of not less than fifteen years ; or
(f) has since the
celebration of the marriage been guilty of bestiality or sodomy ;
and by the wife on the ground that the husband has since the
celebration of the marriage been guilty of rape.
ARTICLE 8
RESTRICTIONS ON PETITIONS FOR DIVORCE DURING FIRST THREE YEARS
AFTER MARRIAGE
(1) No
petition for divorce shall be presented to the court unless at the date of the
presentation of the petition three years have passed since the date of the
marriage :
Provided that the court may, upon application being made to it in
accordance with rules of court, allow a petition to be presented before three
years have passed on the ground that the case is one of exceptional hardship
suffered by the petitioner or of exceptional depravity on the part of the
respondent, but, if it appears to the court at the hearing of the petition that
the petitioner obtained leave to present the petition by any misrepresentation
or concealment of the nature of the case, the court may, if it pronounces a decree
nisi, do so subject to the condition that no application to make the decree
absolute shall be made until after the expiration of three years from the date
of the marriage, or may dismiss the petition, without prejudice to any petition
which may be brought after the expiration of the said three years upon the
same, or substantially the same, facts as those proved in support of the
petition so dismissed.
(2) In
determining any application under this Article for leave to present a petition
before the expiration of three years from the date of the marriage, the court
shall have regard to the interests of any children of the marriage and to the
question whether there is reasonable probability of a reconciliation between
the parties before the expiration of the said three years.
(3) Nothing
in this Article shall be deemed to prohibit the presentation of a petition
based upon matters which have occurred before the expiration of three years
from the date of the marriage.
ARTICLE 9
DUTY OF COURT ON PRESENTATION OF PETITION FOR DIVORCE
(1) On
a petition for divorce, it shall be the duty of the court to inquire, so far as
it reasonably can, into the facts alleged and whether there has been any
connivance or condonation on the part of the petitioner and whether any collusion
exists between the parties and also to inquire into any counter-charge which is
made against the petitioner.
(2) Subject
to the provisions of paragraphs (3), (4) and (5) of this Article, if the court
is satisfied on the evidence that –
(a) the case for the
petition has been proved ; and
(b) where the ground of the
petition is adultery, the petitioner has not in any manner been accessory to,
or connived at, or condoned, the adultery, or, where the ground of the petition
is cruelty, the petitioner has not in any manner condoned the cruelty ; and
(c) the petition is not
presented or prosecuted in collusion with the respondent or any co-respondent ;
the court shall pronounce a decree of divorce, but, if the court is
not satisfied with respect to any of the aforesaid matters, it shall dismiss
the petition.
(3) The
court shall not be bound to pronounce a decree of divorce and may dismiss the
petition if it finds that the petitioner has during the marriage been guilty of
adultery or if, in the opinion of the court, the petitioner has been guilty
–
(a) of unreasonable delay
in presenting or prosecuting the petition ; or
(b) of cruelty towards the
other party to the marriage ; or
(c) where the ground of the
petition is adultery or cruelty, of having without reasonable excuse deserted,
or having without reasonable excuse wilfully separated himself or herself from,
the other party before the adultery or cruelty complained of ; or
(d) where the ground of the
petition is adultery or unsoundness of mind or desertion, of such wilful
neglect or misconduct as has conduced to the adultery or unsoundness of mind or
desertion.
(4) Where
the ground of a petition for divorce is that the respondent is, by reason of
the commutation of a death sentence, undergoing imprisonment for life, or in
confinement as a criminal lunatic, or is serving a sentence of imprisonment for
a term of not less than fifteen years, the court shall not pronounce a decree
unless –
(a) the petition was
presented more than two years, and less than ten years, after the date of the
sentence ; and
(b) the respondent is, at
the time of the decree, in confinement under or by reason of the sentence.
(5) The
court may pronounce a decree of divorce on the ground that the respondent has
been guilty of bestiality, rape or sodomy notwithstanding the fact that the
offence has not been charged against the respondent in criminal proceedings.
ARTICLE 10
DECREE FOR JUDICIAL SEPARATION
(1) A
petition for judicial separation may be presented to the court either by the
husband or the wife on any ground on which a petition for divorce might have
been presented, or on the ground of failure to comply with a decree for
restitution of conjugal rights or on the ground that the respondent is an
habitual drunkard or on any ground on which divorce a mensa et thoro may be granted by the Ecclesiastical Court, and
the foregoing provisions of this Law relating to the duty of the court on the
presentation of a petition for divorce, and the circumstances in which such a
petition shall or may be granted or dismissed, shall apply in like manner to a
petition for judicial separation.
(2) Where
the court in accordance with the said provisions grants a decree of judicial
separation, it shall no longer be obligatory for the petitioner to cohabit with
the respondent.
(3) The
court may, on the application by petition of the husband or wife against whom a
decree for judicial separation has been made, and on being satisfied that the
allegations contained in the petition are true, reverse the decree at any time
after the making thereof, on the ground that it was obtained in the absence of
the person making the application, or, if desertion was the ground of the
decree, that there was reasonable cause for the alleged desertion.
(4) The
reversal of a decree for judicial separation shall not affect the rights or
remedies which any other person would have had if the decree had not been
reversed in respect of any debts, agreements or acts of the wife incurred,
entered into or done between the date of the decree and of the reversal
thereof.
ARTICLE 11
LIABILITY OF HUSBAND IN RESPECT OF WIFE’S ACTS ON GRANT OF
JUDICIAL SEPARATION
So long as a separation under a decree subsists, the husband shall
not be liable in respect of any engagement or agreement into which the wife may
enter after the separation begins or for any wrongful act or omission by her or
for any costs which she may incur as plaintiff or defendant :
Provided that where the court has ordered the husband to pay any
sum for the maintenance of the wife or of any children of the marriage, and the
husband has not duly paid such sum, he shall be liable for necessaries supplied
for the use of the wife or of any such children.
ARTICLE 12
DECREE OF JUDICIAL SEPARATION REVOKED IPSO FACTO BY CONTINUED
RESIDENCE OR RESUMPTION OF COHABITATION AND SUSPENDED DURING PERIODS OF
RESIDENCE
(1) No
decree of judicial separation shall be enforceable and no liability shall
accrue thereunder whilst the wife with respect to whom the decree was made
resides with her husband, and any such decree shall cease to have effect if for
a period of three months after it is made the wife continues to reside with her
husband.
(2) Where
a wife with respect to whom a decree of judicial separation has been made
resumes cohabitation with her husband after living apart from him, the decree
shall cease to have effect on the resumption of such cohabitation.
ARTICLE 13
DIVORCE PROCEEDINGS AFTER GRANT OF JUDICIAL SEPARATION
(1) A
person shall not be prevented from presenting a petition for divorce, or the
court from pronouncing a decree of divorce, by reason only that the petitioner
has at any time been granted a judicial separation upon the same or
substantially the same facts as those alleged in the petition for divorce or
proved in support thereof.
(2) On
any such petition for divorce, the court may treat the decree of judicial
separation as sufficient proof of the adultery, desertion or other ground on
which it was granted, but the court shall not pronounce a decree of divorce
without receiving the evidence of the petitioner.
(3) For
the purposes of any such petition for divorce, a period of desertion
immediately preceding the institution of proceedings for a decree of judicial
separation shall, if the parties have not resumed cohabitation and the decree
has been continuously in force since the granting thereof, be deemed
immediately to precede the presentation of the petition for divorce.
ARTICLE 14
RELIEF TO RESPONDENT ON PETITION FOR DIVORCE OR JUDICIAL SEPARATION
If, in any proceedings for divorce or judicial separation, the
respondent in his or her answer opposes the relief sought on the ground of the
adultery, cruelty or desertion of the petitioner and, in such answer, prays for
relief on any such ground, the court may give to the respondent the same relief
to which he or she would have been entitled if he or she had presented a
petition for divorce or judicial separation, as the case may be, seeking such
relief.
ARTICLE 15
PROVISIONS AS TO MAKING ADULTERER CO-RESPONDENT
(1) On
a petition for divorce or judicial separation on the ground of adultery
presented by a husband or a wife or if, in the answer to the petition the
husband or the wife prays for divorce or judicial separation on the ground of
adultery, the petitioner or respondent, as the case may be, shall cause the
alleged adulterer to be cited as a co-respondent, unless he or she is excused
by the court on special grounds from so doing.
(2) In
any case in which, on a petition or cross-petition for divorce or judicial
separation, the alleged adulterer is made a co-respondent, the court may, after
the close of the evidence on the part of the petitioner or the respondent, as
the case may be, direct the co-respondent to be dismissed from the proceedings
if the court is of opinion that there is not sufficient evidence against him or
her.
(3) In
proceedings for divorce or judicial separation on the ground of adultery, the
court may award compensatory, but not exemplary or punitive, damages, if
claimed in the petition or cross-petition, against a co-respondent, whether
male or female, in favour of the party to whom a decree of divorce or judicial
separation is granted, and any such award may be made notwithstanding that the
co-respondent is neither domiciled nor resident in the Island.
(4) The
court may direct in what manner the damages recovered on any such petition or
cross-petition are to be paid or applied, and may direct the whole or any part
of the damages to be settled for the benefit of the children, if any, of the
marriage, or as a provision for either spouse.
ARTICLE 16
DECREE FOR RESTITUTION OF CONJUGAL RIGHTS
A petition for restitution of conjugal rights may be presented to
the court either by the husband or the wife, and the court, on being satisfied
that the allegations contained in the petition are true, that the petitioner
bona fide desires a resumption of cohabitation and that there is no legal
ground why a decree for restitution of conjugal rights should not be granted,
may make the decree accordingly.
ARTICLE 17
PERIODICAL PAYMENTS
Where a petition for a decree for restitution of conjugal rights is
presented by the wife, the court, at the time of the making of the decree or at
any time thereafter, may, in the event of the decree not being complied with
within any time limited in that behalf by the court, order the respondent to
make to the petitioner such periodical payments as it thinks just and to secure
such payments to the satisfaction of the court.
ARTICLE 18
DECREE OF NULLITY
(1) The
court may decree the nullity of a marriage on any ground on which a marriage is
by law void or voidable or on any of the following grounds, that is to say
–
(a) the continuing
impotency of one party or of both parties to the marriage since the celebration
thereof ;
(b) that the marriage was
celebrated through fraud, threats or duress by the respondent upon or to the
petitioner ;
(c) that the marriage has
not been consummated owing to the wilful refusal of the respondent to
consummate the marriage;
(d) that the respondent was
at the time of the marriage pregnant by some person other than the petitioner,
unless the pregnancy resulted from intercourse which occurred between the
respondent and a former husband during the subsistence of their marriage ;
(e) that the respondent was
at the time of the marriage suffering from a venereal disease in a communicable
form;
(f) that either party
to the marriage was at the time of the marriage of unsound mind or mentally
defective or subject to recurrent fits of insanity or epilepsy :
Provided that, in the cases specified in sub-paragraphs (d), (e)
and (f) of this paragraph, the court
shall not grant a decree unless it is satisfied –
(i) that
the petitioner was at the time of the marriage ignorant of the facts alleged ;
(ii) that
proceedings were instituted within a year from the date of the marriage ; and
(iii) that
marital intercourse with the consent of the petitioner has not taken place
since the discovery by the petitioner of the existence of the grounds for a
decree.
(2) Any
child born of a marriage avoided pursuant to sub-paragraphs (b), (c),
(e) or (f) of paragraph (1) of this Article shall be a legitimate child of
the parties thereto notwithstanding that the marriage is so avoided.
(3) In
any proceedings for nullity of marriage, evidence of the question of sexual
capacity shall be heard in camera unless, in any case, the court is satisfied
that in the interests of justice any such evidence ought to be heard in open
court.
ARTICLE 19
PROCEEDINGS FOR DECREE OF PRESUMPTION OF DEATH AND DISSOLUTION OF MARRIAGE
(1) Any
married person who alleges that reasonable grounds exist for supposing that the
other party to the marriage is dead may present a petition to the court to have
it presumed that the other party is dead and to have the marriage dissolved, and
the court, if satisfied that such reasonable grounds exist, may make a decree
of presumption of death and of dissolution of the marriage.
(2) In
any such proceedings, the fact that for a period of seven years or more the
other party to the marriage has been continually absent from the petitioner and
the petitioner has no reason to believe that the other party has been living
within that time shall be evidence that he or she is dead, until the contrary
is proved.
ARTICLE 20
DECREE NISI FOR DIVORCE OR NULLITY OF MARRIAGE OR PRESUMPTION OF
DEATH
(1) Every
decree for a divorce, for nullity of marriage or of presumption of death shall,
in the first instance, be a decree nisi not to be made absolute until after the
expiration of such period, not exceeding six months, from the pronouncing
thereof, as may be prescribed :
Provided that the court may, in any particular case, fix a shorter
time where it considers it proper to do so.
(2) After
the pronouncing of the decree nisi, and before the decree is made absolute, any
person (including the Attorney General) may, in the prescribed manner, show
cause why the decree should not be made absolute by reason of the decree having
been obtained by collusion or by reason of material facts not having been
brought before the court, and in any such case the court may make the decree
absolute, reverse the decree nisi, require further inquiry or otherwise deal
with the case as the court thinks fit.
(3) Where
a decree nisi has been obtained and no application for the decree to be made
absolute has been made by the party who obtained the decree then, at any time
after the expiration of three months from the earliest date on which that party
could have made such an application, the party against whom the decree nisi has
been granted shall be at liberty to apply to the court and the court shall, on
such application, have power to make the decree absolute, reverse the decree
nisi, require further inquiry or otherwise deal with the case as the court
thinks fit.
ARTICLE 21
DUTIES OF ATTORNEY GENERAL
In the case of any petition for divorce or for nullity of marriage
or for the presumption of death –
(a) the court may, if it
thinks fit, direct all necessary papers in the matter to be sent to the
Attorney General who shall argue before the court any question in relation to
the matter which the court deems to be necessary or expedient to have fully
argued, and the Attorney General shall be entitled to charge the costs of the
proceedings as part of the expenses of his office;
(b) any person may at any
time during the progress of the proceedings or before the decree nisi is made
absolute give information to the Attorney General of any matter material to the
due decision of the case, and the Attorney General may thereupon take such
steps as he considers necessary or expedient ;
(c) if, in consequence of
any such information or otherwise, the Attorney General suspects –
(i) that
the decree may be obtained contrary to the justice of the case ; or
(ii) that
material facts are not before the court ;
he may, after obtaining the leave of the court, intervene and
summon witnesses to prove any allegations which he may think fit to make.
ARTICLE 22
PROVISIONS AS TO COSTS WHERE ATTORNEY GENERAL INTERVENES OR SHOWS
CAUSE
(1) Where
the Attorney General intervenes or shows cause against a decree nisi in any
proceedings for divorce or for nullity of marriage or of presumption of death,
the court may make such order as to the payment by other parties to the
proceedings of the costs incurred by him in so doing or as to the payment by
him of any costs incurred by any of the said parties by reason of his so doing,
as may seem just.
(2) So
far as the reasonable costs incurred by the Attorney General in so intervening
or showing cause are not fully satisfied by any order made under this Article
for the payment of his costs, he shall be entitled to charge the difference as
part of the expenses of his office, and any costs which under any order made by
the court under this Article the Attorney General pays to any parties shall be
deemed to be part of the expenses of his office.
(3) The
expenses declared to be expenses of the office of Attorney General by this Law
shall be paid out of the General Revenues of the States.
ARTICLE 23
POWER TO ALLOW INTERVENTION ON TERMS
In every case in which any person is charged with adultery with any
party to a suit or in which the court considers, in the interest of any person
not already a party to the suit, that that person should be made a party to the
suit, the court may, if it thinks fit, allow that person to intervene upon such
terms, if any, as the court thinks just.
ARTICLE 24
ABATEMENT OF PROCEEDINGS
(1) Without
prejudice to the operation of any rule of law governing the abatement of any
other proceedings under this Law and subject to the provisions of paragraph (2)
of this Article, where a decree nisi has been pronounced in a suit for divorce
or nullity of marriage, the suit shall be abated if the petitioner or the
respondent dies before the decree nisi is made absolute.
(2) Where,
in any proceedings for divorce or judicial separation on the ground of
adultery, a claim for damages is made against a person cited as a co-respondent
in the proceedings, the claim may be proceeded with notwithstanding the death
of the spouse with whom the co-respondent is alleged to have committed adultery
and, if damages have already been awarded in the proceedings, the court may
give directions as to the disposal of the sum awarded notwithstanding the death
of that spouse or of the spouse in favour of whom the damages were awarded :
Provided that nothing in this paragraph shall affect the operation
of the proviso to paragraph (1) of Article 1 of the Customary Law Amendment
(Jersey) Law, 1948.
ARTICLE 25
CUSTODY OF CHILDREN
(1) In
any proceedings for divorce or nullity of marriage or judicial separation, the
court may from time to time, either before or by or after the final decree,
make such provision as appears just with respect to the custody, maintenance
and education of the children, the marriage of whose parents is the subject of
the proceedings, or, if it thinks fit, direct proper proceedings to be taken
for placing the children under the protection of the court.
(2) On
an application made in that behalf, the court may, at any time before the final
decree in any proceedings for restitution of conjugal rights, or, if the
respondent fails to comply therewith, after the final decree, make from time to
time all such orders and provisions with respect to the custody, maintenance
and education of the children of the petitioner and respondent as might have
been made by interim orders if proceedings for judicial separation had been
pending between the same parties.
(3) The
court may, if it thinks fit, on any decree of divorce, judicial separation or
nullity of marriage, order the husband, or (in the case of a petition for
divorce by a wife on the ground of her husband’s insanity) order the
wife, to secure for the benefit of the children such gross sum of money or
annual sum of money as the court may deem reasonable, and the court may for
that purpose settle and approve a proper deed or instrument to be executed by
all necessary parties :
Provided that the term for which any sum of money is secured for
the benefit of a child shall not extend beyond the date when the child will
attain twenty-one years of age.
ARTICLE 26
CESSATION OF SUCCESSORAL RIGHTS AND INTERESTS ON DISSOLUTION OF
MARRIAGE
Where a marriage has been dissolved by divorce or has been
annulled, neither of the parties to the marriage shall be entitled, upon the
death of the other, to any share or interest in the personal estate of the
deceased person, or to any rights of “franc veuvage” in the real
estate of the deceased person or to any rights of dower in the real estate of
the deceased or any other person.
ARTICLE 27
POWER OF COURT TO VARY SETTLEMENTS, ETC
(1) Where
a decree of divorce or of nullity of marriage has been made, the court may,
upon the application of either party to the marriage which is the subject of
such decree, or upon the application of any person beneficially interested,
cancel, vary or modify, or terminate the trusts of, any marriage contract,
marriage settlement, post-nuptial settlement, or terms of separation
subsisting, between the parties to the marriage, in any manner which, having regard
to the means of the parties, the conduct of either of them or the interests of
any children of the marriage, appears to the court to be just.
(2) The
court may exercise the powers conferred by this Article notwithstanding that
the marriage was contracted, or the marriage contract, marriage settlement,
post-nuptial settlement or terms of separation was made or entered into, in an
extraneous jurisdiction.
ARTICLE
28
POWER OF COURT TO ORDER VESTING OR DIVISION OF PROPERTY
(1) Where
a decree of divorce or nullity of marriage or judicial separation has been
made, the court may, if it thinks fit, as regards real and personal property in
which each of the parties to the marriage has, notwithstanding the provisions
of Article 26 of this Law, an interest, present, prospective or conditional,
direct that their interests in such property shall be vested solely in the one
or the other of the parties or shall be divided between them in such
proportions as the court directs, and, where such property is so directed to be
vested solely in one of the parties or to be divided between them, order that
the one party shall pay to the other for his or her absolute benefit such gross
sum, or shall secure to the other for his or her absolute benefit such gross or
periodic sum or both for any term not exceeding the life of the party in favour
of whom the same is secured, as the court may direct, or may refrain from
making any order as to payment or security.
(2) An
order made under this Article, in so far as such order relates to a judicial
separation, shall be deemed to be part of the terms of separation between the
parties within the meaning of this Law.
ARTICLE
29
CONTRIBUTIONS FOR SUPPORT
(1) where
a decree of divorce, judicial separation, restitution of conjugal rights or nullity
of marriage has been made, the court may, if it thinks fit having regard to the
circumstances of the case including the financial position and conduct of the
parties, order that the husband shall pay or make provision for the payment to
the wife during any term not exceeding the life of the wife, of such annual or
other periodic sum of money for or towards the support of the wife as the court
deems reasonable, and that the husband shall secure the payments to be made
under such order in manner directed by the court.
(2) The
court may, if it thinks fit, order that a gross sum of money shall be paid or
secured in lieu of or in addition to the annual or other periodic sum referred
to in paragraph (1) of this Article.
(3) On
a petition for divorce, judicial separation, restitution of conjugal rights or
nullity of marriage, the court may, if it thinks fit, by interim order, direct
payments to be made by the husband to the wife, for or towards her support, and
any such interim order shall remain in force until it is rescinded by the court
or until the court makes a definitive order in respect thereof, or until the
relief sought in the petition is refused.
ARTICLE 30
CONTRIBUTION ORDER AGAINST WIFE OF HUSBAND OF UNSOUND MIND
Where a decree of divorce or judicial separation is granted to a
wife on the ground that her husband is of unsound mind, the court may, if it
thinks fit, order that the wife shall, for the benefit of her husband, make any
payment or give any security which the court is by Article 29 of this Law
empowered to order a party to make or give.
ARTICLE 31
PAYMENT OF CONTRIBUTIONS FOR SUPPORT TO PERSONS HAVING CHARGE OF
MENTALLY AFFLICTED RESPONDENT
Where a decree of divorce or judicial separation or nullity of
marriage is granted on the ground of the unsoundness of mind or mental
deficiency of the respondent, the court may direct that any payments of
contributions for support which, under Article 29 or 30 of this Law, it orders
to be made shall be made to such persons having charge of the respondent as the
court directs.
ARTICLE 32
POWER TO VARY ORDERS
(1) The
court may from time to time discharge or vary any order made under Article 17,
27, 28, 29 or 30 of this Law or suspend any of the provisions thereof
temporarily or revive the operation of any of the provisions so suspended.
(2) In
exercising the powers conferred by this Article, the court shall have regard to
all the circumstances of the case, including any increase or decrease in the
means of either of the parties to the marriage.
ARTICLE 33
ASCERTAINMENT OF ASSETS AND LIABILITIES OF PARTIES
(1) For
the purposes of Article 27, 28, 29, 30 or 32 of this Law, the court may require
each of the parties to a suit to file a sworn detailed declaration of his or
her assets and liabilities and of particulars of all charges against such
assets.
(2) The
court may sit in private for the verification of the assets and liabilities of
the parties and for the purpose of deciding upon the nature and extent of the
order or orders, if any, proper to be made in the case.
ARTICLE 34
COURT TO HAVE REGARD TO BENEFITS ACCRUING TO PARTY
In making any order under Article 29 or 30 of this Law, the court
shall have regard to the benefits accruing to the party in whose favour such
order is made under any other order made in pursuance of this Law.
ARTICLE 35
EXECUTION OF INSTRUMENTS BY ORDER OF THE COURT
Where any person neglects or refuses to comply with an order of the
court directing him to execute or make any conveyance, assignment, or other
document or instrument or indorsement, for giving effect to any order of the
court under Article 17, 27, 28, 29, 30 or 32 of this Law, the court may, on
such terms and conditions, if any, as may be just, order that the conveyance,
assignment, or other document or instrument or indorsement, shall be executed,
made or done by such person as the court nominates for the purpose, at the cost
of the person in default, or otherwise, as the court directs, and a conveyance,
assignment, document, instrument or indorsement so executed, made or done shall
operate and be for all purposes available as if it had been executed, made or
done by the person originally directed to execute, make or do it.
ARTICLE 36
DEATH OF PARTY AFTER DECREE ABSOLUTE
(1) In
the event of the death of either of the parties to a suit for divorce or
nullity of marriage after the decree has been made absolute but before any
definitive order under Article 27, 28 29 or 30 of this Law has been made, the
court may make any such order as aforesaid which it could lawfully have made if
such death had not occurred, and the said order shall take effect as if it had
been made immediately before the death.
(2) The
court may make an order under this Article on the application of any person who
is, in the opinion of the court, an interested person, if the court is
satisfied that notice of the proceedings has been given to every person whose
interests may be affected by the order or to the attorneys of such persons.
ARTICLE 37
RE-MARRIAGE AFTER DIVORCE OR PRESUMPTION OF DEATH
(1) As
soon as any decree of divorce or presumption of death is made absolute, either
of the parties to the marriage may, if there is no right of appeal against the
decree absolute, marry again as if the prior marriage had been dissolved by
death or, if there is such a right of appeal, may so marry again, if no appeal
is presented against the decree, as soon as the time for appealing has expired,
or, if an appeal is so presented, as soon as the appeal has been dismissed.
(2) No
clergyman of the Church of England shall be compelled to solemnize the marriage
of any person whose former marriage has been dissolved on any ground and whose
former husband or wife is still living or to permit the marriage of any such
person to be solemnized in the church or chapel of which he is the minister.
ARTICLE 38
RECORDS TO BE MADE IN REGISTERS OF MARRIAGES
(1) Where,
in relation to persons whose marriage has been registered in pursuance of the
“Loi (1842) sur l’Etat Civil”, a decree
of divorce or of nullity of marriage or of presumption of death has been made
absolute, the Judicial Greffier shall, at the expiration of the period
mentioned in paragraph (2) of this Article, transmit a certified copy of the
decree to the Superintendent-Registrar, and the Superintendent-Registrar shall
cause the entry of the marriage in the Registers of Marriages to be marked with
the words “Marriage dissolved or
declared void or annulled by decree
of the Royal Court of the day of , 19 ”.
(2) The
period within which the Judicial Greffier is required to transmit a certified
copy of a decree to the Superintendent-Registrar in pursuance of paragraph (1)
of this Article shall be –
(a) if there is no right of
appeal against the decree absolute, as soon as the decree has been made ;
(b) if there is such a
right of appeal and no appeal is presented against the decree, as soon as the
time for appealing has expired ;
(c) if there is such a
right of appeal and an appeal is so presented, as soon as the appeal has been
dismissed.
(3) In
this Article –
“the ‘Loi (1842) sur l’Etat Civil’ ”
means the Règlement relating to the registration of births, marriages
and deaths, passed by the States on the first day of November, 1841, and
confirmed by Order of Her Majesty in Council of the twenty-seventh day of
April, 1842,2
as amended by any subsequent enactment ;
“the Superintendent-Registrar” means the
Superintendent-Registrar appointed in pursuance of the “Loi (1842) sur
l’Etat Civil”.
ARTICLE 39
REGULATION OF REPORTS
(1) It
shall not be lawful to print or publish, or cause or procure to be printed or
published in relation to any judicial proceedings for dissolution of marriage,
for the separation of married persons, for nullity of marriage or for
restitution of conjugal rights any particulars other than the following –
(a)
the names, addresses and
occupations of the parties and witnesses ;
(b)
a concise statement of the
charges, defences and counter-charges in support of which evidence has been
given ;
(c)
submissions on any point of
law arising in the course of the proceedings and the decision of the court
thereon ;
(d)
the judgment of the court and
observations made by members of the court in giving judgment :
Provided that nothing in this paragraph shall be held to permit the
publication of any details or special matter likely to injure public morals.
(2) If
any person acts in contravention of the provisions of this Article, he shall be
liable in respect of each offence to a fine not exceeding one hundred pounds
sterling or to imprisonment for a term not exceeding six months or to both such
fine and such imprisonment :
Provided that no person, other than a proprietor, editor, master
printer or publisher of a newspaper or other vehicle of publication of the
matter in respect of which the prosecution is instituted shall be liable to be
convicted under this Article.
(3) Nothing
in this Article shall apply to the printing of any pleadings, transcript of
evidence or other document for use in connexion with any judicial proceedings
or the communication thereof to persons concerned in the proceedings, or to the
printing or publishing of any copies or report in pursuance of directions of
the court or of His Majesty or of the Lords of His Privy Council, or to the
printing or publication of any matter in any separate volume or part of any
bona fide series of law reports which does not form part of any other
publication and consists solely of reports of proceedings in courts of law, or
in any publication of a technical character bona fide intended for circulation
among members of the legal or medical professions.
ARTICLE 40
SERVICE OF PETITION
In any proceedings under this Law, any petition, summons, notice or
other document may be served on the party to be affected thereby, either within
or without the Bailiwick, in such manner as may be prescribed.
ARTICLE 41
EVIDENCE
The parties to any proceedings instituted in consequence of
adultery and the husbands and wives of the parties shall be competent to give
evidence in the proceedings, but no witness in any such proceedings, whether a
party thereto or not, shall be liable to be asked or be bound to answer any
question tending to show that he or she has been guilty of adultery unless he
or she has already given evidence in the same proceedings in disproof of the
alleged adultery.
ARTICLE 42
INDECENT EVIDENCE
In any proceedings under this Law in which any evidence of an
indecent character is about to be tendered, the court may, if it thinks it
necessary in the interest of the administration of justice or of public
decency, direct that all or any persons, not being members or officers of the
court or the parties to the proceedings or other persons directly concerned in
the proceedings, shall be excluded from the court during the taking of that
evidence.
ARTICLE 43
RULES OF COURT
The power to make rules of court under the Royal Court (Jersey)
Law, 1948, shall include a power to make rules for the
purposes of this Law and proceedings thereunder, and such rules may make
provision for enabling persons to take proceedings under this Law in forma pauperis, and for the hearing
in vacation of all such applications as may require to be immediately or
promptly heard.
ARTICLE 44
POWERS OF STATES AS REGARDS FEES
For the avoidance of doubt, it is hereby declared that the power to
fix fees conferred upon the States by –
(a) “La
Loi (1930) constituant le Département du Vicomte” ;
(b) “La
Loi (1930) constituant le Département des Officiers de la
Couronne” ;
(c) “La
Loi (1931) constituant le Département du Greffe Judiciaire” ;
(d) “La
Loi (1936) touchant la Rétribution de la charge de Bailli” ;
or by any Law, whether passed before or after the commencement of
this Law, amending the said Laws, shall include a power to fix fees for the
purposes of this Law.
ARTICLE 45
SAVING OF RIGHTS AND POWERS OF THE ECCLESIASTICAL COURT
Nothing in this Law shall be construed as derogating in any way
from any rights or powers of the Ecclesiastical Court in existence immediately
before the coming into force of this Law.
ARTICLE
46
TEMPORARY PROVISION IN RELATION TO APPEALS
Until such time as Articles 12, 13 and 14 of the Court of Appeal
(Channel Islands) Order, 1949, come into force, an appeal from a decision of
the court under this Law shall lie to the Superior Number of the Royal Court in
like manner as it would lie to the Court of Appeal if those provisions of that
Order were in force.
ARTICLE 47
SHORT TITLE AND COMMENCEMENT
(1) This
Law may be cited as the Matrimonial Causes (Jersey) Law, 1949.
(2) This
Law shall come into force on such day or days as the States may by Act appoint
and different days may be fixed for different purposes and different provisions
of this Law.
To be printed, published and posted.
F. DE L. BOIS,
Greffier of the States.