By ADVOCATE BARBARA CORBETT, Partner, Hanson Renouf
THE COSTOF DIVORCE... WHAT ARE THE RULES OF THE GAME?
Hanson Renouf Advocates
In October 2012 the Court of Appeal in Flynn v Reid, confirmed that in Jersey there remains a difference between the financial orders a court can make when a married couple divorce and when an unmarried, couple separate. The Court went on to say that whether married or unmarried, parties should be treated in the same way by the law is a matter for consideration by the States, not for the Court.
Although some people think that just living with another person will entitle them to a financial settlement, if you are not married, the matter will need to be dealt with just like any other property claim.
Barbara Corbett is a specialist family
lawyer, collaborative lawyer, mediator and a partner at Hanson Renouf. She is a fellow of the International Academy of Matrimonial Lawyers and a member
of Resolution and the Jersey Family Law Association.
email:
barbara.corbett@
hansonrenouf.com
If you are married (or in a civil partnership) however, the situation is completely different. The Court can order one spouse to give property or money to the other and order that maintenance is paid between the parties (regardless of gender) and for the benefit of any children. And, despite the media hype about pre- nuptial agreements, a married couple cannot make a binding agreement which “ousts the jurisdiction of the Court”. The Family Court always retains discretion. This contrasts with unmarried couples who can enter into a contract about property which will bind them in the future, as long as they can show that they intended to be so bound.
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Financial provision on divorce In Jersey, most cases never reach the Family Court. Most people are able to negotiate a settlement themselves, or with the help of their lawyers and for others, their lack of resources or the needs of one party render an application unnecessary.
and all assets held in joint names are “matrimonial”; but not always. The family home is usually matrimonial property, as are assets in either name acquired during the marriage. Exceptions to this could be gifts or inherited property, especially if the property has not been “inter-mingled”. Property owned before marriage is generally not included as matrimonial property, either, but the Court has a discretion to include it if there is otherwise not enough to go round.
Equality
When a case does go to court, it is assumed, in the first instance, that the family assets will be distributed equally between the parties. But what are the assets? The parties have an obligation to provide full details of their property so that fully informed decisions can be made. There can be serious consequences if either party provides incomplete or misleading information about their assets.
Property
In theory everything owned by each of the spouses (or civil partners) individually
How much is it worth? Once it is determined which of the assets constitute “matrimonial property” that property then has to be valued. Some property is easy to value, such as money in a savings account or shares. Other things such as a house can be valued by an expert. Pensions can be difficult to value as they are “future assets” and not readily transferable.
Business assets Business assets and farms can pose particular difficulties. A small one-man business, may be profitable and make a good living for the owner, but if it were to be sold, without the owner’s talent, it would not bring in much by way of sale proceeds and would also result in the owner’s income being lost.
Alternatively, a business with assets such as land and buildings and many employees may be more saleable and
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