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PRIVATE FAMILY LAW IN
GUERNSEY
Divorce and 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, as amended and the Children
(Guernsey and Alderney) Law 2008.
Domestic proceedings in the
Magistrate’s Court are regulated by the Domestic Proceedings and Magistrate’s
Court (Guernsey) Law 1988 as amended and the Children’s (Guernsey and Alderney) Law 2008 and cover such matters as maintenance,
parental responsibility, residency, contact orders and specific issue and
prohibitive steps orders. The Children
(Guernsey and Alderney) Law 2008 also
introduced an offence of child abduction.
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:-
a.
Adultery;
b.
Unreasonable Behaviour;
c.
Desertion for two years;
d.
Two years separation with consent;
e.
Five years separation without consent.
These are also the grounds for a
Judicial Separation (whereby the parties are no longer obliged to live
together), except in proceedings for a Judicial Separation the Court is not
asked to consider whether the marriage has broken down irretrievably. It is also possible to obtain a Judicial
Separation by consent.
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 residency of
the children and what contact will the children have with the other parent?
Finances
There are two aspects to be
considered in resolving financial matters in a Divorce or Judicial Separation,
namely capital distribution and maintenance (the continuing obligation to
support the other spouse and/or the children).
Assets are valued at the date of separation.
Division
The major family asset is often
the family home. It is often the case
that the spouse who does not have the residency of the children 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, one spouse is often left with their capital
locked into the house for many years.
The law strives to achieve “homes
for both parties”.
The sharing principle applies to
all available assets on divorce. Inherited
and/or pre-acquired assets and post-separation assets may be a justification
for a departure from a 50/50 distribution of assets, depending on the needs of
the parties.
Clean Break
Whilst modern practice is in
favour of a clean break with regard to spousal maintenance to allow both
parties to “start afresh”, this is only an option if it would not cause “undue
hardship” to the financially weaker party.
Where there are young children a clean break is often not possible.
Where a clean break is not
possible, a maintenance order is often obtained against the party in the
wealthier financial position. This is
calculated by a consideration of reasonable needs balanced against available
resources.
The Child Support Guidelines that
apply in the UK
can be a useful cross check for child maintenance, but are not
determinative.
Both parties have a duty to
financially support their children.
Costs
At present there is only very
limited “Legal Aid” available in Guernsey for
matrimonial breakdowns and no legal aid available for mediation.
Magistrate’s Court
It is possible to obtain Court
orders in the Magistrate’s Court to deal with various problems including:-
1.
Failure to pay maintenance to the spouse and/or
children;
2.
Any disputes over or applications for parental
responsibility, residency, contact, specific issues and prohibitive steps order;
3. Injunctions; where there has been violence or threats
of violence against the spouse and/or children and order may be obtained as a
matter of urgency to the Magistrate to keep the offending spouse away from the
family home and/or to not further molest or threaten to molest the spouse or
children of the family.
Affiliation Orders
The Magistrate’s Court also deals
with applications under the Affiliation Law 1927, whereby the father of an 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
Once the parties have agreed the
marriage has broken down, mediation can be a good alternative to contested
Court proceedings and can help the parties to sort out their own solutions to
the various problems arising from the breakdown of the marriage. Mediation is voluntary and confidential and
can take the heat out of contested situations.
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 no longer has an automatic entitlement in the
Estate of the deceased former spouse.
Consequently, it is important to consider making a new Will once your
marriage has ended.
Conclusion
There are no winners in a
marriage breakdown.
We at F Haskins & Co are
experienced and deal with all aspects of family law.
Felicity Haskins, the founding
partner of the Firm, is a Fellow of the International Academy of Matrimonial
Lawyers.
The above is correct at the date
of printing, namely April 2010.
For further information or an
appointment please contact this office by e-mail, telephone, post, or fax.
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