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FAMILY LAW IN GUERNSEY Divorce or Judicial Separation are rated as amongst the most stressful incidents in a person’s life. However, with the right advice and sympathetic handling, the stress levels can be reduced. When couples are able to agree that the marriage is over and also sort out what will happen with regards to the children, the home, any capital or savings and maintenance arrangements, this saves legal costs and anxiety. However, some couples find this impossible and need to resort to legal advice from an advocate. The advocate will deal with the negotiations in order to sort out all matters of contention. Before any financial agreement can be made full and frank disclosure of both parties’ finances is compulsory. Family Law in Guernsey is generally based on UK Statutes and Case Law, although Guernsey has its own Statutes covering Judicial Separation, Divorce and ancillary relief matters namely the Matrimonial Causes Law (Guernsey) 1939 to 1997 as amended. Domestic proceedings in the Magistrate’s Court are regulated by the Magistrate’s Court (Guernsey) Law, 1998 and cover such matters as maintenance, custody and injunctions. Affiliation orders may be obtained in the Magistrate’s Court against fathers of illegitimate children under the Affiliation Law 1927. As in the UK, the ground for Divorce is irretrievable breakdown of the marriage as evidenced by one or more of the following facts:-
These are also the grounds for a Judicial Separation except the Court is not asked to consider whether the marriage has broken down irretrievably. It is also possible to obtain a separation by consent. Judicial Separation means that the parties are no longer obliged to live together. Upon Divorce or Judicial Separation there are various aspects which have to be considered by the parties or failing agreement between them, the Court. Children Who is to have the custody day to day care of the children and what access is to be enjoyed. Finances There are two aspects to be considered in resolving financial matters in a Divorce or Judicial Separation; capital distribution and maintenance (the continuing obligation to support the children and/or the other spouse). Division The major family asset is often the family home. It is often the case, that the husband will be unable to obtain any money tied up in the family home while the children are young. Due to high property prices in Guernsey, the husband is often left with his capital locked into the house for many years whilst at the same time being obliged to continue to contribute towards the mortgage repayments. Whilst the law strives to achieve "houses for both parties" often this is simply impossible and a house for the children takes priority. It is rarely possible to have equality in the division of capital and therefore the distribution is carried out using a balancing exercise of reasonable needs against available resources, with the first consideration being given throughout to the children of the family. Clean Break Whilst modern practice is in favour of a clean break with regard to spouse maintenance, to allow both parties to "start a fresh" this is only an option if is would not cause "undue hardship" to the financially weaker party. Where there are young children a clean break is very unlikely. Where there is no clean break, a maintenance order is often obtained against one party (usually the man) this is calculated using the one party’s reasonable needs balanced against the other party’s available resources. Both parties have a duty to financially support the children. Costs At present there is only very limited "Legal Aid" available in Guernsey for matrimonial breakdowns and negotiation, if at all possible, save costs. If negotiations fail, the legal cost of revolving contested ancillary relief proceedings can be very high and will often simply reduce the size of the cake that is available for distribution. Magistrate’s Court It is possible to obtain Court orders during the subsistence of the marriage in the Magistrate’s Court to deal with various problems including:-
Applications in the Magistrate’s Court are generally obtained more quickly than in the Royal Court. Affiliation Orders The Magistrates also deal with applications under the Affiliation Law 1927. This means that the father of illegitimate child can be confirmed as the child’s father and orders for financially supporting the child may be made against him. Reconciliation Reconciliation is an attempt to explore the possibility of saving the marriage. It should be the first approach and every effort should be made by both parties to save the marriage if at all possible. There are various agencies who can give advice on reconciliation e.g. Relate. Mediation This can occur once the parties have agreed the marriage has broken down and it is to help the parties to sort out their own solution to the various problems arising from the breakdown of the marriage. Mediators do not give legal advice and the couples attending mediation are generally also receiving legal advice in tandem. Wills A final Order of divorce ends a marriage and a divorced spouse has no automatic entitlement in the estate of Realty or Personalty of the deceased former spouse. Consequently, it is important to consider making a new Will once a Judicial Separation has been obtained because a Judicial Separation does not end a marriage and one party may unwittingly leave property to the estranged spouse. Conclusion There are no winners in a marriage breakdown – least of all the children. It can be costly both in financial and emotional terms and the outcome of contested Court proceedings involve risk which should only be taken as a last resort. We at F Haskins & Co deal with all aspects of family law. For further information or an appointment please contact this office by e-mail, telephone, post, or fax.
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