Matrimonial Causes
(Jersey) Law 1949
A LAW to empower the Royal Court to
grant decrees of dissolution and nullity of marriage and of judicial
separation, and to make provision for matters incidental thereto[1]
Commencement
[see endnotes]
1 General
definitions[2]
In this Law, unless the context otherwise requires –
“cause” and “suit” include any proceedings
in which there is an applicant, petitioner or plaintiff;
“child of the family” has the same meaning as in the Children (Jersey) Law 2002;
“court” has the meaning assigned 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;
“mental disorder” has the meaning given by Article 1(1)
of the Mental Health (Jersey)
Law 2016;
“prescribed” means prescribed by rules of court.
2 Insanity
definition[3]
For the purposes of Article 7, a person of unsound mind shall
be deemed to be under care and treatment while, and only while –
(a) the person is liable to
be detained in an approved establishment or other place of safety under the Mental Health (Jersey)
Law 2016, or is subject to a significant restriction on his or her liberty
under Part 5 of the Capacity and
Self-Determination (Jersey) Law 2016;
(b) the person is liable to
be detained in a hospital, mental nursing home or place of safety under the Mental
Health Act 1983 or in a hospital or place of safety under the Mental
Health (Care and Treatment) (Scotland) Act 2003, being Acts of the
Parliament of the United Kingdom, as amended until the date
of commencement of the Mental Health (Jersey)
Law 2016;
(c) the person is detained
in pursuance of an order for the person’s detention or treatment as a person
of unsound mind or a person suffering from mental illness made under any
enactment for the time being in force in Northern Ireland, the Bailiwick of
Guernsey or the Isle of Man (including any such enactment relating to criminal
lunatics), or is receiving treatment as a voluntary patient under any such
enactment; or
(d) the person is receiving
treatment for mental illness as a resident in –
(i) a
hospital or other institution provided, approved, licensed, registered or exempted
from registration by any Minister or other authority in the United Kingdom, the
Bailiwick of Guernsey or the Isle of Man, or
(ii) a
hospital or other institution in any other country, being a hospital or
institution in which the person’s treatment is comparable with the
treatment provided in any such hospital or institution as is mentioned in clause (i),
and in determining for the purposes of Article 7 whether any
period of care and treatment has been continuous, any interruption of the
period for 28 days or less shall be disregarded.[4]
3 Jurisdiction
of the Royal Court in matrimonial causes
(1) Subject to the
provisions of Article 44, 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 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 Jersey.[5]
(2) The court shall also
have the power to grant such injunctions and other relief as may, in all
matrimonial causes, suits and matters, be granted by the Samedi Division of the
Royal Court.[6]
(3) In the authentication
of decrees, orders and other instruments and copies thereof, the Judicial Greffier may describe himself or herself as Registrar.
(4) Rules of court may make
provision authorizing the Judicial Greffier to
exercise such powers or to discharge such functions of the court under this Law
or under the proviso to Article 3 of the Separation and Maintenance
Orders (Jersey) Law 1953, as may be prescribed in relation to such proceedings as may be
prescribed.[7]
(5) Any order made or
direction given by the Judicial Greffier in pursuance
of rules of court made under paragraph (3) shall be subject to appeal in
the first instance to the court.[8]
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 Jersey, illness or other lawful cause, from
performing the duties of the office holder’s 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.
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.
6 Jurisdiction[9]
(1) The court shall have
jurisdiction to entertain proceedings for divorce or judicial separation if
(and only if) –
(a) the
parties to the marriage are domiciled in Jersey on the date when the
proceedings are begun; or
(b) either
of the parties to the marriage was habitually resident in Jersey throughout the
period of one year ending with that date.
(2) The court shall have
jurisdiction to entertain proceedings for nullity of marriage if (and only
if) –
(a) the
parties to the marriage are domiciled in Jersey on the date when the
proceedings are begun; or
(b) either
of the parties to the marriage –
(i) was
habitually resident in Jersey throughout the period of one year ending with
that date, or
(ii) died
before that date and either was at death domiciled in Jersey, or had been habitually
resident in Jersey through the period of one year ending with the date of
death.
(3) The court shall have
jurisdiction to entertain proceedings for death to be presumed and a marriage
to be dissolved if (and only if) the petitioner –
(a) is
domiciled in Jersey on the date when the proceedings are begun; or
(b) was
habitually resident in Jersey throughout the period of one year ending with
that date.
(4) The court shall, at any
time when proceedings are pending in respect of which it has jurisdiction by
virtue of paragraph (1) or (2) (or by virtue of this paragraph), also have
jurisdiction to entertain other proceedings, in respect of the same marriage,
for divorce, judicial separation or nullity of marriage, notwithstanding that
jurisdiction would not be exercisable under paragraph (1) or (2).
7 Grounds
of petition for divorce
(1) A petition for divorce
may be presented to the court by either spouse on the ground that the
respondent –
(a) has
since the celebration of the marriage committed adultery and the petitioner
finds it intolerable to live with the respondent;
(b) has
deserted the petitioner without cause for a period of at least 2 years
immediately preceding the presentation of the petition;
(c) has
since the celebration of the marriage behaved in such a way that the petitioner
cannot reasonably be expected to live with the respondent;
(d) is
incurably of unsound mind and has been continuously under care and treatment
for a period of at least 5 years immediately preceding the presentation of the
petition; or
(e) is
serving a sentence of imprisonment for life or for a term of not less than 15
years.[10]
(2) A petition for divorce
may also be presented to the court by either spouse on the ground that the
parties to the marriage –
(a) have
lived apart for a continuous period of at least one year immediately preceding the
presentation of the petition (in this Law referred to as “one year’s separation”) and
the respondent consents to a decree being granted; or
(b) have
lived apart for a continuous period of at least 2 years immediately preceding the
presentation of the petition (in this Law referred to as “2 years’ separation”).[11]
(3) For the purposes of
this Article, only conduct between the respondent and a person of the opposite
sex may constitute adultery.[12]
8 Restrictions
on petitions for divorce during first 3 years after marriage
(1) No petition for divorce
shall be presented to the court unless at the date of the presentation of the
petition 3 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 3 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 3 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 3 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 3 years from the date of the marriage, the court shall have
regard to the interests of any children of the family and to the question
whether there is reasonable probability of a reconciliation between the parties
before the expiration of the said 3 years.[13]
(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 3 years from the date of the
marriage.
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), (5) and (6) and to Article 10, if
the court is satisfied on the evidence that –
(a) the
case for the petition has been proved;
(b) [14] and
(c) except
in the case of a petition presented on either of the grounds specified in Article 7(2)
the petition is not presented or prosecuted in collusion with the respondent or
any co-respondent,
the court shall pronounce a decree of divorce.[15]
(3) If the court is not
satisfied that the case for the petition has been proved, it shall dismiss the
petition.[16]
(4) If the court is not
satisfied as to any matter arising under paragraph (2)(c), it may in its
discretion either pronounce a decree of divorce or dismiss the petition.[17]
(5) Except in the case of a
petition presented on either of the grounds specified in Article 7(2), the
court shall not be bound to pronounce a decree of divorce and may dismiss the
petition if, in the opinion of the court, the petitioner has been
guilty –
(a) of
unreasonable delay in presenting or prosecuting the petition;
(b) [18]
(c) [19] or
(d) where
the ground of the petition is unsoundness of mind or desertion, of such wilful
neglect or misconduct as has conduced to the
unsoundness of mind or desertion.[20]
(6) Where the ground of a
petition for divorce is that the respondent is serving a sentence of
imprisonment for life or for a term of not less than 15 years, the court shall
not pronounce a decree unless –
(a) the
petition was presented more than 2 years, and less than 10 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.[21]
(7) [22]
10 Refusal
of decree of divorce in 2 years’ separation cases in certain
circumstances [23]
(1) The respondent to a
petition for divorce in which the petitioner alleges 2 years’ separation
may oppose the grant of a decree on the ground that the dissolution of the
marriage would result in grave financial or other hardship to the respondent
and that it would in all the circumstances be wrong to dissolve the marriage.[24]
(2) Where the grant of a
decree is opposed by virtue of this Article, then –
(a) if
the court finds that the petitioner is entitled to rely in support of his or
her petition on the petitioner’s allegation of 2 years’ separation and makes no
such finding as to any other ground specified in Article 7; and
(b) if
apart from this Article the court would grant a decree on the petition,
the court shall consider all the circumstances, including the
conduct of the parties to the marriage and the interests of those parties and
of any children or other persons concerned and, if of opinion that the
dissolution of the marriage would result in grave financial or other hardship
to the respondent and that it would, in all the circumstances, be wrong to
dissolve the marriage, it shall dismiss the petition.[25]
(3) For the purposes of
this Article, hardship shall include the loss of the chance of acquiring any
benefit which the respondent might acquire if the marriage were not dissolved.
11 Special
protection for respondent in separation cases[26]
(1) Provision shall be made
by rules of court for the purpose of ensuring that where, in pursuance of Article 7(2)(a),
the petition alleges that the respondent consents to a decree being granted,
the respondent has been given such information as will enable the respondent to
understand the consequences to the respondent of his or her consenting to a
decree being granted and the steps which the respondent must take to indicate
that he or she consents to the grant of a decree.
(2) Where in any case the
court has granted a decree of divorce solely on the ground of one year’s
separation coupled with the respondent’s consent, the court may, on an
application made by the respondent at any time before the decree is made
absolute, rescind the decree if it is satisfied that the petitioner misled the
respondent (whether intentionally or unintentionally about any matter which the
respondent took into account in deciding to give his or her consent.[27]
(3) The following
provisions of this Article apply where –
(a) the
respondent to a petition for divorce in which the petitioner alleged one year’s or 2 years’ separation coupled, in the
former case, with the respondent’s consent to a decree being granted, has
applied to the court for consideration under paragraph (4) of the
respondent’s financial position after the divorce; and
(b) the
court has granted a decree on the petition solely on the ground of one
years’ separation coupled with the respondent’s consent, or solely
on the ground of 2 years’ separation, as the case may be.[28]
(4) The court hearing an
application by the respondent under paragraph (3) shall consider all the
circumstances, including the age, health, conduct, earning capacity, financial
resources and financial obligations of each of the parties, and the financial
position of the respondent as, having regard to the divorce, it is likely to be
after the death of the petitioner should the petitioner die first; and, subject
to paragraph (5), the court shall not make the decree absolute unless it
is satisfied –
(a) that
the petitioner should not be required to make any financial provision for the
respondent; or
(b) that
the financial provision made by the petitioner for the respondent is reasonable
and fair or the best that can be made in the circumstances.
(5) The court may if it
thinks fit make the decree absolute notwithstanding the requirements of paragraph (4)
if –
(a) it
appears that there are circumstances making it desirable that the decree should
be made absolute without delay; and
(b) the
court has obtained a satisfactory undertaking from the petitioner that the
petitioner will make such financial provision for the respondent as the court
may approve.
12 Decree
for judicial separation
(1) A petition for judicial
separation may be presented to the court by a party to the marriage on any
ground on which a petition for divorce might have been presented 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.[29]
(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 spouse 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.[30]
(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.
(5) Paragraph (4) only
applies in relation to the judicial separation of spouses who are of the
opposite sex.[31]
13 Liability
of husband in respect of wife’s acts on grant of judicial separation
In the case of a marriage of 2 persons of the opposite sex, 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 family, and the husband
has not duly paid such sum, the husband shall be liable for necessaries
supplied for the use of the wife or of any such children.[32]
14 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 party to the marriage with respect to whom the decree was made resides with
his or her spouse, and any such decree shall cease to have effect if, for a
period of 3 months after it is made, the parties to the marriage continue
to live with each other.[33]
(2) Where a party to the
marriage with respect to whom a decree of judicial separation has been made
resumes cohabitation with his or her spouse after living apart from him or her,
the decree shall cease to have effect on the resumption of such cohabitation.[34]
15 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 or an order under the Separation and Maintenance
Orders (Jersey) Law 1953, upon the same or substantially the same facts as those alleged in
the petition for divorce or proved in support thereof.[35]
(2) On any such petition
for divorce, the court may treat the decree of judicial separation or the said order
as sufficient proof of the ground on which it was granted, but the court shall
not pronounce a decree of divorce without receiving the evidence of the
petitioner.[36]
(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 or an order
under the said Law having the effect of such a decree shall, if the parties
have not resumed cohabitation and the decree or order has been continuously in
force since the granting thereof, be deemed immediately to precede the
presentation of the petition for divorce.[37]
16 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 a ground mentioned
in Article 7(1)(a), (b) or (c) 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.[38]
17 Provisions
as to making adulterer co-respondent
(1) On a petition for
divorce or judicial separation alleging adultery presented by a spouse or if,
in the answer to the petition the spouse prays for divorce or judicial
separation alleging 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.[39]
(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.
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
was then suffering from mental disorder of such a kind or to such an extent as
to be unfitted for marriage or subject to recurrent attacks of insanity or
epilepsy;
(g) that a
gender recognition certificate has, after the time of the marriage, been issued
to either party to the marriage;
(h) that
either party to the marriage satisfies such conditions and has taken such
steps, in an approved jurisdiction, for the recognition of his or her change of
gender by that jurisdiction as –
(i) are
prescribed, in respect of that jurisdiction, by Order made by the Chief
Minister, or
(ii) if
no conditions and steps are prescribed under clause (i)
in respect of that jurisdiction, satisfy the Court that, but for the fact that
the parties are still married, the change of gender would be recognized by that
jurisdiction;
(i) that
the respondent is a person whose gender at the time of the marriage had become
the acquired gender:
Provided that, in the cases specified in sub-paragraphs (d), (e),
(f) or (g), 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.[40]
(2) Any child born of a
marriage avoided pursuant to paragraph (1)(b), (c), (e), (f), (g) or (h) shall
be a legitimate child of the parties thereto notwithstanding that the marriage
is so avoided.[41]
(2A) Without prejudice to paragraph (1),
the court shall not grant a decree of nullity under Article 18(1) on the
ground mentioned in sub-paragraph (g) of that paragraph unless it is
satisfied that proceedings were instituted within 6 months of the date of
issue of the interim certificate.[42]
(3) In any proceedings for
nullity of marriage, evidence of the question of sexual capacity or gender
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.[43]
(4) In this Article “approved
jurisdiction”, “a gender recognition certificate” and a
reference to a person’s acquired gender have the same respective meanings
as in Article 1 of the Gender Recognition (Jersey)
Law 2010.[44]
(5) Paragraphs (1)(a)
and (c) do not apply to the marriage between persons of the same sex.[45]
18A Grounds on which a
marriage converted from a civil partnership is void or voidable[46]
(1) This Article applies to
a marriage which has been converted, or is purported to have been converted,
from a civil partnership under Article 22 of the Marriage and Civil Status
(Jersey) Law 2001.
(2) A marriage which
results from the purported conversion of a void civil partnership is void.
(3) A marriage which
results from the conversion of a civil partnership is voidable if any of sub-paragraphs (b),
(d), (e), (f), (g), (h) or (i) of Article 18(1)
applied at the date from which the marriage is treated as having subsisted
in accordance with Article 22(15) of the Marriage and Civil Status
(Jersey) Law 2001.
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 7 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.
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 6 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 and, in the case of a decree under
Article 18(1)(g) or (h), the decree shall be absolute on pronouncement.[47]
(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 3 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.
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 the Attorney General’s 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 the Attorney General 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,
the Attorney General may, after obtaining the leave of the court,
intervene and summon witnesses to prove any allegations which the Attorney
General may think fit to make.
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 the Attorney General in so doing or as to the payment by the
Attorney General of any costs incurred by any of the said parties by reason of the
Attorney General’s 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 the Attorney General’s costs, the Attorney General shall be
entitled to charge the difference as part of the expenses of the Attorney
General’s 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 the Attorney General’s office.
(3) [48]
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.
24 Abatement
of proceedings
Without prejudice to the operation of any rule of law governing the
abatement of any other proceedings under this Law, 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.[49]
25 Provision
for children
(1) In any proceedings for
divorce or nullity of marriage or judicial separation, the court may from time
to time, either before or after the final decree, make such provision as
appears just with respect to the maintenance of any children of the family in
relation to the parties to the marriage which is the subject of the
proceedings.
(2) Subject to paragraph (3),
on pronouncing a decree nisi of divorce, judicial separation or nullity of
marriage or at any time thereafter, whether before or after the decree has been
made absolute, the court shall have power to order either party to the marriage
to secure for the benefit of any children of the family 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.
(3) The term for which any
sum of money is secured for the benefit of a child under paragraph (2)
shall not extend beyond the date when the child will attain the age of 21.[50]
25A Restrictions on
decrees for dissolution, annulment or separation affecting children
(1) In any proceedings for
a decree of divorce or nullity of marriage, or a decree of judicial separation,
the court shall consider -
(a) whether
there are any children of the family to whom this Article applies; and
(b) where
there are any such children, whether (in the light of the arrangements which
have been made, or are proposed to be, made for their upbringing and welfare)
it should exercise any of its powers under the Children (Jersey) Law 2002 with respect to any of them.
(2) Where, in any case to
which this Article applies, it appears to the court that -
(a) the
circumstances of the case require it, or are likely to require it, to exercise
any of its powers under the Children (Jersey) Law 2002 with respect to any such
child;
(b) it is
not in a position to exercise that power or (as the case may be) those powers,
without giving further consideration to the case; and
(c) there
are exceptional circumstances which make it desirable in the interests of the
child that the court should give a direction under this Article,
it may direct that the decree of divorce or nullity is not to be
made absolute, or that the decree of judicial separation is not to be granted,
until the court orders otherwise.
(3) This Article applies to
-
(a) any
child of the family who has not yet reached the age of 16 at the date when the
court considers the case in accordance with the requirements of this Article;
and
(b) any
child of the family who has reached that age at that date and in relation to
whom the court directs that this Article shall apply.[51]
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.
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 insofar as it may be inequitable to
disregard it or the interests of any children of the family, appears to the
court to be just.[52]
(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.
28 Power
of court to order transfer or settlement of property [53]
(1) Where a decree of
divorce or nullity of marriage or judicial separation has been made, the court
may, having regard to all the circumstances of the case including the conduct
of the parties to the marriage insofar as it may be inequitable to disregard it
and to their actual and potential financial circumstances and notwithstanding
the provisions of Article 26, order –
(a) that
one party to the marriage transfer to the other party to the marriage, or to
any child or children of the family, or to such person as may be specified in
the order for the benefit of such child or children, any property whether real
or personal to which the first mentioned party is entitled;
(b) that
a settlement of any property whether real or personal to which one party to the
marriage is entitled be made to the satisfaction of the court for the benefit
of the other party to the marriage or of any child or children of the family.[54]
(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.
29 Financial
provision for party to a marriage in cases of divorce etc.[55]
(1) Where a decree of
divorce, nullity of marriage or judicial separation has been made, the court
may, having regard to all the circumstances of the case including the conduct
of the parties to the marriage insofar as it may be inequitable to disregard it
and to their actual and potential financial circumstances, order –
(a) that
one party to the marriage shall pay to the other party to the marriage during
their joint lives or for such other term as may be specified in the order such
annual or other periodic sum for the maintenance and support of that other
party as the court may think reasonable;
(b) that
one party to the marriage shall pay to the other party to the marriage such
lump sum or sums as the court may think reasonable whether or not any sum is
ordered to be paid under sub-paragraph (a);
(c) that
security be given for the payment of any sum or sums ordered to be paid under sub-paragraphs (a)
and (b).[56]
(2) Without prejudice to
the generality of paragraph (1)(b), an order under this Article that one
party to the marriage shall pay a lump sum to the other party to the
marriage –
(a) may
be made for the purpose of enabling that other party to meet any liabilities or
expenses reasonably incurred by him or her in maintaining himself or herself or
any child of the family before the making of an application for an order under
this Article;
(b) may
provide for the payment of that sum by instalments of such amount as may be
specified in the order.[57]
30 Power
of court to order sale of property[58]
(1) Subject to the
provisions of paragraph (7), where the court makes an order under Article 27,
28 or 29, then, on making that order or at any time thereafter, the court may
make a further order for the sale of such property as may be specified in the order,
being property in which or in the proceeds of sale of which either or both of
the parties to the marriage has or have a beneficial interest, either in
possession or reversion.
(2) Any order made under paragraph (1)
may contain such consequential or supplementary provisions as the court thinks
fit and, without prejudice to the generality of the foregoing provision, may
include –
(a) provision
requiring the making of a payment out of the proceeds of sale of the property
to which the order relates; and
(b) provision
requiring any such property to be offered for sale to a person, or class of
persons, specified in the order.
(3) Where an order is made
under paragraph (1) on or after the grant of a decree of divorce or
nullity of marriage, the order shall not take effect unless the decree has been
made absolute.
(4) Where an order is made
under paragraph (1), the court may direct that the order, or such
provision thereof as the court may specify, shall not take effect until the
occurrence of an event specified by the court or the expiration of a period so
specified.
(5) Where an order under paragraph (1)
contains a provision requiring the proceeds of sale of the property to which
the order relates to be used to secure periodical payments to a party to the
marriage, the order shall cease to have effect on the death or re-marriage of
that person.
(6) Where a party to a
marriage has a beneficial interest in any property, or in the proceeds of sale thereof,
and some other person who is not a party to the marriage also has a beneficial
interest in that property or in the proceeds of sale thereof, then, before
deciding whether to make an order under paragraph (1) in relation to that
property, it shall be the duty of the court to give that other person an
opportunity to make representations with respect to the order.
(7) The provisions of paragraph (1)
shall not apply in the case of an order made under Article 29(1)(a) unless
in such case an order is also made under Article 29(1)(c).
(8) In this Article a
reference to property shall be construed as a reference to property whether
real or personal.
31 Contributions
for support; interim orders[59]
On any petition for divorce, judicial separation or nullity of
marriage, the court may, if it thinks fit, by interim order direct one party to
the marriage to pay to the other party to the marriage such sums for the
maintenance and support of that other party as the court thinks just, 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.
32 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 or disorder of the respondent, the court may direct that any
payments of contributions for support which, under Article 29 or 31, it
orders to be made shall be made to such persons having charge of the respondent
as the court directs.[60]
33 Power
to vary orders
(1) The court may from time
to time discharge or vary any order made under Article 25, 27, 28, 29, 30
or 31 or suspend any of the provisions thereof temporarily or revive the
operation of any of the provisions so suspended.[61]
(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.
34 Ascertainment
of assets and liabilities of parties
(1) For the purposes of Article 25,
27, 28, 29, 31 or 33, 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.[62]
(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.
35 Court
to have regard to benefits accruing to party
In making any order under Article 29, 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.[63]
36 Execution
of instruments by order of the court
Where any person neglects or refuses to comply with an order of the
court directing the person 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 25, 27, 28, 29, 30 or 33, 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.[64]
37 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 or 29 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.[65]
(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.
38 Re-marriage
or civil partnership after divorce or presumption of death[66]
(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 or enter into a civil partnership as if the prior marriage had been
dissolved by death or, if there is such a right of appeal, may so marry again
or enter into a civil partnership, 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.[67]
(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 the clergyman is the minister.
39 Regulation
of reports
(1) It shall not be lawful
to print or publish, or cause or procure to be printed or
published –
(a) in
relation to any judicial proceedings for dissolution of marriage, or the
separation of married persons, on the ground of the respondent’s
incurable unsoundness of mind, any particulars whatsoever;
(b) in
relation to any judicial proceedings for nullity of marriage on the ground of
the respondent’s unsoundness of mind at the time of the marriage, any
particulars whatsoever;
(c) in
relation to any judicial proceedings for dissolution of marriage, the
separation of married persons, or nullity of marriage, on any other ground any
particulars other than the following –
(i) the
names, addresses and occupations of the parties and witnesses,
(ii) a
concise statement of the charges, defences and counter-charges in support of
which evidence has been given,
(iii) submissions
on any point of law arising in the course of the proceedings and the decision
of the court thereon,
(iv) the
judgment of the court and observations made by members of the court in giving
judgment:
Provided that nothing in this sub-paragraph shall be held to permit
the publication of any details or special matter likely to injure public
morals.[68]
(2) If any person acts in
contravention of the provisions of this Article, the person shall be liable in
respect of each offence to a fine:
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.[69]
(3) Nothing in this Article
shall apply to the printing of any pleadings, transcript of evidence or other
document for use in connection 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.[70]
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 Jersey, in such manner as may be prescribed.
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.[71]
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.
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.
44 Savings
(1) 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.
(2) The amendments made to
this Law by the Matrimonial Causes (Amendment No. 11) (Jersey) Law 2003 shall
not affect the rights of any party to any proceedings instituted in the Family
Division of the Royal Court before the coming into force of that Law.
45 Citation
This Law may be cited as the Matrimonial Causes (Jersey)
Law 1949.