Divorce and Separation

We are highly experienced divorce lawyers in Jersey. We will work with you to help you make an informed decision as to whether a divorce or formal separation is appropriate for you.

 

Whichever route you decide, we will support you through the entire process, prioritising yours and your children’s best interests.

 

Check out our FAQs for more information

Parties are not always ready to dissolve their marriage legally by issuing divorce proceedings or there may be legal reasons why they cannot initiate divorce or judicial separation proceedings immediately. That does not prohibit them from taking steps to record how they wish to divide their finances, resolve children’s arrangements and/or agree on how their separation should be formalised in the future.

 

Confidante can help parties to agree and draft the terms of a Separation Agreement or deal with the interpretation and enforcement of an agreement already in place.

 

Other resources

 

Check out our Podcast page for information about other services available to help those experiencing a relationship breakdown (such as counselling or mediation).

If the marriage is truly at an end and the legal requirements to progress divorce proceedings are met, Confidante can guide clients through the entire divorce process.

 

If parties are legally unable or morally unprepared to formally dissolve their marriage but wish to make the financial arrangements legally binding, Confidante can assist clients through judicial separation proceedings.

 

Other resources

 

Whatever stage you are in your divorce journey, check out our Checklists which are aimed at breaking down the various stages and providing helpful tips;

 

i) If you are at the start of your divorce journey, our first checklist provides practical tips such as considering what other services are available, changing passwords and breaking the news of your separation to the children;

 

ii) Sharing financial information can often be a stressful part of the process. Knowing what information you need to share and the benefit of doing so is explained in our second checklist; and

 

iii) Keeping yourself organised and on track throughout a divorce or separation ensures that the process will run as smoothly as possible. Our third checklist sets out simple ways you can help your case (and therefore yourself and your children).

 

iv) Breaking down the typical stages of a divorce journey can help to keep clients focused and also helps them to understand where they are in the process, how far they have come and what lies ahead. Our guide [here] provides a visual breakdown of the typical stages of divorce.

 

At Confidante, we also believe that clients who engage the help of other services or resources, can limit the cost and time it takes to navigate the legal process and more importantly increase the chances of keeping relationships intact. 

 

Check out our Podcast page for information about other services (such as counselling or mediation) available to help those experiencing a relationship breakdown or divorce.”

Clients going through separation, divorce or judicial separation proceedings will inevitably need to deal with their finances (either by simply dismissing claims or dividing more complicated asset structures).

 

The process invariably involves the exchange of financial information (either formally or informally) and once the disclosure stage is complete, negotiations follow.

 

If agreement cannot be reached easily (through offers or settlement meetings), parties may need to adopt alternative dispute resolution methods to try and resolve the case, for example, mediation, financial dispute resolution or arbitration.

 

In the rare event that out of court methods prove futile, the case will need to be determined by the Court. Confidante can guide clients through the process no matter which route applies to them.

 

Other resources

 

Sharing financial information can often be a stressful part of the process. Knowing what information you need to share and the benefit of doing so is explained in Checklist 2.

 

We also have a useful Podcast series designed to help couples understand what other services are available which can complement the legal process.  Mediation can assist couples struggling to divide the assets and we also talk to a mortgage expert from The Mortgage Shop who explains amongst other things, how to get the best out of a mortgage application.

Pre-nuptial agreements are entered into before the marriage takes place and set out what should happen if the marriage breaks down and divorce proceedings become inevitable.

 

Post-nuptial agreements are entered into after the marriage and usually in contemplation of divorce. They too set out what should happen in the unfortunate event that the marriage breaks down and divorce proceedings become inevitable.

 

In both scenarios, Confidante can advise on the content and legal weight of the agreement as well as the drafting of them.

 

Confidante can also help clients with the interpretation and enforcement of existing agreements.

Where parties have entered into a financial agreement or the court has determined the outcome of a case and one of the parties wishes to move away from the terms, Confidante can advise on the merits of such an application.

Confidante can also assist to amend those terms either by agreement or if that is not possible, through the court.

Please click here for information about children.

 

Other resources

 

Check out;

 

i) Episode 2 of our Podcast series - “The many ways mediation can help” during which we talk to Family Mediation Jersey  about how mediation can help parents struggling to agree on child related matters such as where a child should live, contact arrangements or child maintenance;

 

ii) Episode 3 of our Podcast series - “How to help you help your kids” during which we talk to a divorce parenting expert about how parents can deliver the news of a change in the family dynamic to the children in the best possible way, how to help children to cope with those changes and how to co-parent well;

 

iii) Our Checklist “How to help your children in divorce / separation”;

 

iv) This excellent Guide prepared by Resolution which walks parents through a relationship breakdown and what to expect when it comes to the children”; and

 

v) If you are struggling to agree on arrangements in respect of the children, take a look at this Parenting Plan prepared by JFCAS. If you would benefit from a Parenting Plan which will help avoid future disagreements and allow you to focus on raising your children, get in touch and see how we can help

DIVORCE AND SEPARATION FAQS

Divorce or separation:

Yes, you can get prepared by drafting a Separation Agreement which is a really good way to record what should happen in the interim and can include;

 

i) how you intend to separate your finances;

ii) when and how you plan to get divorced;

iii) where the children are going to live or how they will divide their time and general arrangements in respect of them; and

iv) how you are going to meet the costs of the children.

 

A Separation Agreement can be as detailed or as brief as you like but the fuller it is, the less room there is for debate in the future.

 

A Separation Agreement is not final and binding and therefore it is not bullet proof (for example, one of the parties can try to move away from it at a later date). However, there are safeguards parties can put in place to make it as watertight as possible.

 

Speak to a lawyer and get advice around your options. Engaging a lawyer to help you draft a Separation Agreement is a good investment.

Separation is a less formal status hence entering into a Separation Agreement does not achieve finality and certainty (it is not final and binding).

 

Divorce means that the marriage is legally dissolved which happens when the Family Division grant the Decree Absolute (the final certificate in the divorce process which legally dissolves the marriage).

 

It is essential in divorce proceedings that the parties enter into a Consent Order which records the financial agreement reached between them (even if this means that the parties simply wish to record that they do not intend to make any claims against the other). The Consent Order needs to be approved by the Registrar of the Family Division (otherwise known as the Family Law Court) before it becomes binding (in a financial order, otherwise be known as a “divorce settlement” or “divorce agreement”).

 

It is very important to obtain legal advice from your divorce lawyer around the terms of the Consent Order which will ensure that, for example, future claims are dismissed if a clean break is the desired outcome.

It is absolutely possible to have an amicable divorce.

 

Divorce is stressful and emotions inevitably run high. However, maintaining good communication with your spouse is the key to a good relationship during and after divorce.

 

It is unlikely that you will agree on everything but ensuring a bigger picture view can help. The art of compromise is also key and focusing on what is really important.

 

If the dispute relates to the children, it is essential that each parent considers what most serves the children’s best interests. Depending upon their age, the children’s wishes may also be taken into account (although this should be dealt with very carefully and advice is recommended).

 

Other services can help too such as couples counselling and/or mediation. These services offer a forum for parties to discuss areas in dispute in the least acrimonious way. It is helpful to give real consideration to these services. Exhausting more cost effective options first is sensible.

 

Check out our Podcast series here for information on couples counselling, mediation and co-parenting.

If you are in the early stages of the process, you probably have a lot of questions and concerns and feel like you don’t know where to start. Be assured, this is totally normal.

 

Check out Checklist 1 which will help guide you through the practical steps you should be considering.

Divorce:

It depends!

 

To get divorced in Jersey the law requires that the following are all satisfied;

 

i) you have been married for at least 3 years;

ii) you or your spouse is domiciled in Jersey or has been habitually resident in the Island for 12 months preceding the application;

iii) you have the original marriage certificate or a certified copy. If it is not in English, it will need to be translated); and

iv) you have ground of divorce (see answer in the FAQ on grounds for divorce).

 

If you can satisfy the above requirements, it is possible to issue divorce proceedings. Divorce procedures must also be adhered to (see answer in the FAQ on how to file for divorce in Jersey).

One of the following grounds of divorce must apply to progress divorce proceedings (and details of the ground will need to be set out in your divorce petition);

 

i) you have been separated for 1 or 2 years (however, you will need your spouse’s consent if you wish to proceed on the basis of separation for 1 year);

ii) your spouse has behaved unreasonably;

iii) your spouse has committed adultery;

iv) your spouse has deserted you for 2 years or more;

v) your spouse has been sent to prison for more than 15 years; or

vi) your spouse is incurably of unsound mind and has been receiving treatment for more than 5 years.

 

In a scenario where a separation ground does not apply, the most common ground is unreasonable behaviour because it means that the proceedings can be issued without delay.

 

A common worry is that unreasonable behaviour is a hostile ground and will make things difficult.  However, divorce lawyers can help to take the hostility out of the situation.

 

If you want to get things moving without delay and unreasonable behaviour is the only available ground, speak to your divorce lawyer about the ways in which you can keep the temperature down.

Keeping yourself organised and on track throughout a divorce ensures the process will run as smoothly as possible. At Confidante, we provide our clients with as many complimentary tools we can to assist them through their journey.

 

Check out Checklist 3 “Ways to help your case in divorce proceedings” which you can use to guide you through some of the steps you should be considering.

Assuming that the requirements have been met (see answer in FAQ “Getting a divorce in Jersey”) it is necessary to follow the divorce procedure;

 

i) you or your lawyer will need to prepare your divorce petition and accompanying forms;

ii) you or your lawyer will need to send your divorce petition and accompany forms into the Judicial Greffe with the original marriage certificate (or certified copy) and Court processing fee;

iii) once the papers have been processed, they will need to be served on your spouse;

iv) your spouse will need to complete the acknowledgement of service and form relating to the children (if applicable) within 8 days (if they are in Jersey) and return these forms to the Judicial Greffe;

v) you will need to complete, and file with the Judicial Greffe, an Affidavit and form 20 (if your divorce petition is not contested by your spouse) by the deadline as provided by the Judicial Greffe;

vi) if the Court is satisfied that the contents of the petition have been sufficiently proved, the Decree Nisi certificate will be granted;

vii) 6 weeks after the date of the Decree Nisi certificate, the party petitioning for divorce can apply for the Decree Absolute (the final certificate in the divorce process which legally dissolves the marriage). Although it is usual to wait until the finances have been resolved before applying for Decree Absolute.

Assuming that the requirements have been met to issue divorce proceedings and the divorce petition is not contested by your spouse, it is possible to get divorced in approximately 10 weeks. However, this estimate is linked to the divorce process itself and excludes the financial aspect of the case which often creates delay.

 

Lawyers will often advise clients to delay the application for Decree Absolute (the final certificate in the divorce process which legally dissolves the marriage) until after the finances have been agreed in a Consent Order and approved by the Registrar of the Family Division.

Absolutely!

 

Although this will require engagement of both parties throughout the process and agreement as to the arrangements of the children and the division of the finances.

 

Even if parties are struggling to agree, there are methods of Alternative Dispute Resolution (ADR) (alternatives to Court) to help such as;

 

i) Mediation;

ii) Financial Dispute Resolution (FDR); or

iii) Arbitration.

 

(See FAQ on “My spouse and I are struggling to reach an agreement.  What can we do?” for more information around ADR).

If you have unsuccessfully tried to reach an agreement directly with your spouse, it is important to take legal advice.

 

Your lawyer can assist by exchanging offers in writing or they can hold a “round table meeting”.

 

If you are unable to reach an agreement with the benefit of legal advice, there are other methods of Alternative Dispute Resolution (ADR) you can consider;

 

Mediation

Mediation is a process where parties meet with an independent third party mediator. The mediator facilitates discussions to encourage agreement around the issues in dispute. It is possible to attend mediation to resolve issues about children, or finances, or both. Mediation can be with or without lawyers.

 

It is sensible to receive legal advice during the mediation process to ensure that you are well informed about your legal position. If a financial agreement is reached, that agreement should then be formalised, again with the assistance of legal advice.

 

FDR

An FDR is a process during which an FDR Judge will consider each parties’ arguments (through papers and submissions made by their respective lawyer) and will give the parties a judicial steer (i.e. set out what they would order if they were the judge in the case). This helps clients to negotiate the case where they have reached an impasse trying to settle the case without third party involvement.

 

Mediation and/or an FDR are more cost effective than a final hearing and the parties retain some control over the outcome. Both processes are without prejudice which means that they are held “behind closed doors” meaning that neither party can disclose to the trial judge what took place during either process if agreement was not reached.

 

Arbitration

Parties select an independent and impartial arbitrator to resolve their dispute. Crucially, they agree in advance that the arbitrator’s decision will be binding on them (subject to specified but limited rights of appeal or challenge and, in some cases, subject to the Court’s supervisory role).

 

This form of ADR is more cost effective than a final hearing and the parties retain control over who the arbitrator is and when and where the arbitration will take place.

Finances and costs:

It depends!

 

Most lawyers charge an hourly rate and therefore the more time you require from your lawyer, the higher your bills will be.

 

It follows that; the more couples can agree between themselves, the cheaper the divorce will be.

 

In a straightforward case, if a lawyer is engaged to;

 

i) assist with the divorce papers and divorce procedure (assuming that the divorce petition is undefended (a contested divorce would be more expensive)); and

ii) draft a Consent Order reflecting an agreement reached between the parties;

 

the cost could be from £2,000 (excluding the Court processing fees).

 

At Confidante, by embedding technology in the structure of our offering, we have created a more efficient family law service which has inbuilt cost saving benefits for our clients. Further to that, the more our clients use the tools available to them, the more likely this will be reflected in their fees overall (as less fee earning time will be required).

 

Where appropriate, we also offer fixed fees on discrete pieces of work or specific stages in the process.

Financial disclosure involves the exchange of financial information between the parties. This can either be;

 

i) informal disclosure which may include the exchange of a summary of each parties’ financial circumstances with documentary evidence in support (such as latest bank statements etc.) or

ii) formal disclosure which includes the exchange of detailed information with full documentary evidence in support. The information is provided in an Affidavit of Means (a sworn document – in other words, if a party is deliberately untruthful, criminal proceedings for perjury may be commenced).

 

Check out Checklist 2 “What you will need to provide in divorce proceedings” for information as to what you are required to attach to your Affidavit of Means.

It is possible for both parties to opt out of exchanging financial information with one another (common when both parties feel they have a good grip of the family finances including assets held in their spouse’s name).

 

However, if one party wishes to exchange financial information, avoiding financial disclosure is not possible. If this process is not entered into voluntarily, the Court will make orders.

 

Further, if the parties opt out of exchanging financial information but are unable to reach an agreement, the Court will require full financial information in the format of an Affidavit of Means to determine the case.

If a party fails to make disclosure voluntarily, an application can be made to the Court and the Court will order disclosure.  If that party defies the Court Order, they will be in breach of a Court order (contempt) and adverse orders can be made such as Costs Orders.

 

If a party’s disclosure remains incomplete at the date of the final hearing, the Court can draw adverse inferences.

This depends!

 

There are a number of factors taken into account when determining a fair outcome including the;

 

i) welfare of any minor children;

ii) age of the parties;

iii) length of the marriage;

iv) financial needs, obligations and responsibilities of each party;

v) income, earning capacity, property and other resources each party has or is likely to have in the foreseeable future;

vi) standard of living during the marriage;

vii) contributions that each party has made, or is likely to make in the foreseeable future to the welfare of the family;

viii) conduct of the parties (if inequitable to disregard); and

ix) the loss of (for example) pension benefits as a result of the dissolution of the marriage.

 

The court follows the legal principles from legislation and case law in making its decision, although each judge has wide discretion to do what they perceive to be appropriate on facts of each case. This means the precise outcome of financial court proceedings can be quite difficult to predict.

 

When dividing assets, the court will measure the end result against a benchmark 50/50 split to assess whether anything other than that is justified. It would be usual to expect that there would not be a 50/50 asset split where one person’s (or the children’s) needs require a higher proportion of the capital assets, e.g. for housing, or sometimes where one person came into the marriage with significantly greater assets than the other.

 

It is important to seek legal advice as to the fair outcome as the specifics of your case will dictate the outcome.

Pre and post nuptial agreements

A pre nuptial agreement is entered into before the marriage and a post nuptial agreement is entered into after the marriage.

These agreements typically set out what the parties would like the financial outcome to be in the unfortunate event of a divorce.

 

The purpose is to avoid a dispute around what should happen to the finances at a time when discussing such matters is likely to be more difficult because of the relationship breakdown.

Commonly, these agreements are entered into to protect certain assets/income from being included in the division of the finances in the event of a divorce, for example;

 

  • if one of the parties is due to come into money, such as inheritance or other family money;
  • if one of the parties has been married before and wishes to protect the assets secured as part of their first divorce;
  • if one of the parties has a business; or
  • if one of the parties is financially stronger coming into the marriage.

Pre nuptial agreements are often designed to protect certain assets (existing or anticipated) from being taking into account in the context of divorce proceedings.

 

Alternatively, pre nuptial agreements can simply set out what the outcome should be in the unfortunate event of a divorce to avoid an argument at that point.

 

If you consider that you may benefit from a pre nuptial agreement it is sensible to seek legal advice well in advance of the wedding.

Parties in divorce proceedings cannot override the Court's ability to decide how finances should be divided on a divorce. Therefore, neither party can be prevented from applying to the Court for financial provision on divorce. However, when deciding on an appropriate level of financial provision, the Court is likely to give weight to a pre or post nuptial agreement if it is entered into in the right way (explained further below). It is possible therefore that the pre or post nuptial agreement could be determinative.

 

The factors the Court is likely to take into account are;

 

  • Whether or not the agreement was freely entered into.
  • Individual circumstances, such as a party's age, maturity and previous experience of long-term relationships, as well as their emotional state at the time of making the agreement.
  • Whether or not the couple had a full appreciation of the implications of any agreement. It is common to append to the agreement a schedule of the assets (existing and anticipated), liabilities and income and advisable for both parties to obtain legal advice.
  • It must be fair to hold the couple to the agreement in the circumstances at the time of divorce and the agreement should meet the reasonable financial needs of the couple and their children.

 

Additionally in respect of pre nuptial agreements;

 

  • Ideally, a pre nuptial agreement should be finalised at least 28 days before the wedding. This will give enough time to consider the terms and obtain legal advice about those terms, eliminating last-minute pressure as the wedding approaches.
  • Whether or not the marriage would have gone ahead in the absence of a pre nuptial agreement.

Getting the right legal advice

Most importantly, you should select a lawyer who has the expertise to deal with the issue in respect of which you need help.

 

In a divorce situation, it is likely that you will be sharing intimate details about your relationship with your divorce lawyer and therefore finding someone you feel comfortable with is key.

 

It is also important that you understand how your lawyer will work on your case.  Will you get direct access to your chosen lawyer or will you be dealing with more junior members of the department?

 

Finally, ask to speak to the lawyer you are thinking of engaging before you instruct them.  You can ask them questions to understand if they will be the right match for you.

It is important to know where you stand as soon as possible.  Therefore the earlier you speak to a family / divorce lawyer the better.  This may even be before you have advised your partner /spouse that the relationship is over.

 

Your lawyer can help you to strategise and ensure that you don’t take steps which are prejudicial to you and/or your children.

 

It is possible to seek early advice and then do nothing.  The important thing is that you understand your options at the earliest opportunity.

Absolutely.  If you are not happy with the legal representation, you can change your lawyer at any point.

 

However, changing lawyer part way through your case may create delay and/or increase costs (as your new lawyer will need to read in) therefore, before taking steps, it may be wise to speak to your existing lawyer to see whether you can iron out any issues you are encountering.

 

You could also consider a second opinion.

 

If you are clear that you would like a new lawyer, it is important that you properly satisfy yourself the lawyer you wish to engage is the right match for you.  Arrange a call or meeting before finalising your decision.

cohabitation agreements
cohabitation agreements

Hi! I’m Advocate Carly James, a family law specialist in Jersey. Let’s start a conversation that matters.

 

We know how daunting it can be to talk to a family / divorce lawyer and potentially commence a legal process relating to divorce, separation or your children.

 

If you would like to hear a little more about who we are, whether we would be a good match for you or when we can get started, get in touch and let’s start the conversation.

Get in touch

You can schedule a complimentary 20 minute call by clicking here or fill out the below form and we will be in touch shortly.

Get in touch

You can schedule a complimentary 20 minute call by clicking here or fill out the below form and we will be in touch shortly.

Did you know that we offer Family Mediation services?

To find out more about Family Mediation click here or schedule a call here.