Introduction
A marriage is a complex web of relationships. When a relationship breaks down there are a huge number of matters to think about and numerous arrangements to make. People are frightened about finances and their home, worried about their children, and concerned for the future. The emotional fall out of the whole process can be extremely traumatising.
Helping a client with the upset, anger and acceptance of the situation is an essential part of the lawyer’s role. Here at Sinels we will help you work through these matters and assist you in putting things into perspective by advising you on the law and explaining what practical steps can be taken towards helping you build a new life.
Our family law group offers a highly skilled team of matrimonial lawyers who deal with divorce on a daily basis. We strive to ensure that we combine a caring and holistic approach with strategic thinking so that we can achieve settlement before acrimony. We will advise you on the most cost effective and efficient way of proceeding with a divorce whether this be through the courts, mediation, or collaborative law.
In the event that we cannot shield our clients from a disputed divorce, or ancillary hearing, we have a team of litigators who are experienced in dealing with matrimonial and family litigation at all levels.
Philip Sinel’s personal view is that “Divorce is hard enough anyway without lawyers making it worse…There are cases when you need someone who will do what’s necessary – we still offer a total warfare package – but most people do not need that. There are sensible solutions that can be reached between people without a huge amount of drama.”
The Divorce Process
In order to obtain a divorce in Jersey you must have been married for at least three years and either both of the parties live in Jersey, or at least one of them has lived in Jersey for the past year, at the time proceedings begin.
There are different grounds for divorce such as adultery or unreasonable behaviour. However, most people are divorced on the grounds of mutual consent after being separated for a year.
At the first meeting with your lawyer you are likely to discuss the reasons for the breakdown of the marriage and whether the marriage can be saved (www.relatejersey.com). You may be required to provide information in relation to the date of separation, details of any children of the family (including proposed future arrangments for the children), details of your own and your partner's assets, income, savings and pension interests.
The process of obtaining a divorce is relatively straightforward. The key stages to a divorce are as follows:
Divorce is usually a paper based process from start to finish. You probably will not have to attend court, unless arrangements for the children cannot be agreed and require the intervention of the court before the decree can become absolute. However this is unlikely.
Separation Agreements
Many couples facing the breakdown of their marriage do not want to obtain a divorce immediately. For some, it is a chance for a break to consider the future and perhaps seek counselling. For others, it is simply the case that they have not been married long enough to obtain a divorce.
In such circumstances we would advise couples of the benefits of a separation agreement. In general the agreement will set out the terms of separation, how the assets will be divided and, if there are children, how they will be provided for and where they will live. It will also set out provisions for eventual divorce proceedings.
Once a separation agreement has been reached and signed by the parties it is generally binding. The usual process is that when a divorce petition is presented to the court the separation agreement will be ratified by the court and incorporated into a court order.
Children of the Family
If there are children it is important that the arrangements for their future care and maintenance are discussed, and the court will want to know what the arrangements are.
Wherever possible, it is preferable for parents to reach an agreement in relation to the children between themselves as to where they should live and also contact arrangements.
At Sinels we are well aware that such important decisions are often difficult to make, especially in the midst of an acrimonious divorce. We have a team of highly skilled lawyers who will advise on the options available to you as a parent, and will attempt to resolve any contentious issues in relation to the children. Usually agreements can be reached without going to court, but in some cases applications to the court are needed. Court action in this area should be used only as a last resort and the welfare of the children will be the court’s paramount consideration
(www.judiciary.gov.uk/publications_media/media_releases/2009/0309.htm).
The Finances and Assets
On divorce couples frequently need assistance to rearrange their financial situation e.g. there may need to be a transfer of property from one spouse to another and one party may need to pay maintenance to the other and for the benefit of any children.
Either party to a marriage can apply for a financial settlement (should matters not be resolved amicably) once divorce proceedings have been filed. Once an application has been submitted, the Court imposes a time-table on the parties. This process requires full disclosure of each party’s financial situation and leads to negotiation aimed at settlement. If negotiation fails then you proceed to a final hearing in front of a judge who will make a decision.
Sorting out the assets is a skilled and complex task. It is essential to assess the short term impact a split will have and thereafter to consider the longer term future needs of both spouses and children. All the income and assets of the parties will need to be taken into account from offshore assets to house contents and valuables! Sometimes there is reluctance by parties to give complete disclosure, or the assets may be undervalued.
At Sinels we differentiate ourselves from our competitors by being lawyers who are comfortable with figures. Our experience of dealing with trust and financial matters can be of significant assistance when it is necessary to dissect and trace complex matrimonial assets. As a result we are able to assist our clients through the financial issues that arise in big money cases.
Each case is very different. Our aim is to find a ‘tailor made’ solution for you as quickly, efficiently and as cost effectively as possible. Where there are sufficient assets to sever all ties between the parties a “clean break” solution may well be the outcome. If not, then continuing maintenance may be a possibility, whether for life, or until re-marriage, or such term as may be agreed or ordered by the court.
We try very hard to resolve cases by negotiation and avoid a fight through the courts.
Not all marriages end acrimoniously and there are alternative ways of reaching agreement. We recommend mediation and collaborative law as a means of resolving disputes. These procedures sit well with our general approach to dispute avoidance and resolution thereby alleviating unnecessary stress at what can be a very difficult time.
Mediation
In cases where the parties have managed to stay on good terms it may be beneficial to instruct the services of a trained mediator who will assist the parties with reaching an agreement in relation to either financial matters or children matters (www.jerseyfamilymediation.org.uk).
The emphasis of a mediator is to encourage and guide the parties impartially towards a negotiated settlement.
If the parties reach a settlement with the help of a mediator, it is advisable for them to receive independent legal advice on the proposed settlement. If the settlement is thought to be fair, the terms of the agreement will be incorporated into an order of the court (an Act of Court) which will be binding on both parties.
At Sinels we have experience of mediated settlements and can advise you on this matter.
Collaborative Law
Collaborative Law is a relatively new way of resolving family law disputes. This method of dispute resolution is relatively new to this country having enjoyed a high degree of success in the United States and Canada (www.resolution.org.uk).
Collaborative Law differs from mediation in that each party has a legal advisor present throughout the process and at all meetings. The emphasis of this approach to resolving disputes is that the parties and their lawyers try to sort out difficulties between the clients by discussing matters around the table, together. It is an open and transparent process that can ultimately result in a settlement that both parties are happy with.
Importantly, all those involved in the process (lawyers and clients alike) sign an agreement to say that they will not take the case to court. This encourages all concerned to concentrate on reaching a settlement, knowing that if they do not, and one party wishes to go to court, both parties will need to instruct new lawyers.
Once an agreement is reached it can be embodied into an Order of the court.
Wills
Upon receiving the Decree Absolute, it may be necessary for you to make a new Will unless the existing will was made in contemplation of Divorce.
Domestic Violence
Domestic violence is a pattern of controlling and aggressive behaviour from one adult (usually a man), towards another (usually a woman), within the context of an intimate relationship. The abuse can take many forms: physical, sexual, psychological or emotional. Other common features are financial control and social isolation.
It can happen to anyone, and in all kinds of relationships. A violent environment is unhealthy and should not be tolerated. Children are also affected by domestic violence both in the short and long term.
It is important that you do not blame yourself for the violence and it is essential that you seek help. As family law experts we can discuss all of the options available to you and use the law to protect you and your children from further violence. This can include an injunction to prevent a person from approaching or contacting his or her partner or spouse.
(www.cab.org.je);
(www.jerseywomensrefuge.org)
Pre-Nuptial Agreements
Pre-nuptial contracts are unusual in Jersey. The Jersey Courts retain the right to make orders disposing of financial claims even where there is a pre-nuptial contract. However, a properly drafted pre-nuptial agreement can be pertinent to the Court’s final decision.
At Sinels we take the view that it is worthwhile having an in depth initial interview with a member of our family team before making a decision as to whether a pre-nuptial agreement is right for you.
Costs
Our work is charged on an hourly rate depending on the seniority and the experience of the lawyer involved. We advise clients of our hourly rate for each fee earner when the appointment is made. At your first meeting we will advise you on the anticipated level of fees for your case and the options available to you for funding. We will confirm this to you in our retainer letter which we ask you to sign.
We will advise you if we think you are eligible for public funding and can put you in contact with the Legal Aid scheme.
All clients worry about the cost of a case. We understand your concern and do our best to keep costs contained.
Court Jargon
The Divorce Petition: this document starts off the divorce and is filed with the Royal Court. It deals with the grounds of the divorce, proposed arrangements for the children and what financial relief is sought.
The Petitioner: this is the person who files the divorce petition with the court.
The Respondent: this is the person who receives the divorce petition once it has been filed with the court.
Acknowledgment of Service: this document is signed by the respondent and lodged at court. In this document the respondent has the opportunity to reply to the contents of the divorce petition and the statement of arrangements for the children. This document has to be returned within 8 days of service of the divorce petition.
Decree Nisi: this is the first stage of the divorce being granted. Decree Nisi will be made if the court is satisfied with everything.
Decree Absolute: this is the final stage of the divorce. It can be made no earlier than 6 weeks after the making of a Decree Nisi.
Statement of Arrangements for the Children: this document sets out the current and future living arrangements for the children of the family and accompanies the divorce petition.
Ancillary Relief: this is a generic term that covers, amongst others, child maintenance, spousal maintenance, lump sums and the transfer, sale or settlement of property.
Affidavit of Means: this document gives full details of the parties’ respective financial positions. It is completed by both parties and it is expected that they will make full and frank disclosure of their financial positions in it.
Questionnaire: this document enables the parties to ask for further and better information following consideration of the respective parties’ affidavits of means.
Reply: this document is the reply to any questionnaire.
Interim maintenance or maintenance pending suit: this is an application for an urgent order for temporary financial maintenance.
Without prejudice: letters are often headed with this phrase in relation to offers to settle. They are not shown to the judge hearing the matter until after the case is over and the judge decides who should pay the costs.
Preliminary Directions Hearing (“PDH”): this is a first court appointment where the Greffier makes decisions as to how the case will proceed. The parties legal representatives must attend this hearing. If a party is unrepresented they must attend the hearing in person.
Case Review Hearing (“CRH”): the aim of this court appointment is to define the issues between the parties. Both parties must attend the hearing in person along with their legal representatives.
Final Hearing: at this hearing the parties will present their respective positions to the judge and evidence will be heard before a final determination is made. The court’s decision is binding.
Disclaimer
The contents of this document are for general explanatory purposes only. Although the law and legal practice contained in this document is correct at the time of going to print, there are frequent changes in this field of law and Sinels Advocates accept no liability whatsoever for any reliance based on the content. A suitably qualified lawyer should always be consulted when any legal advice is required.
Authors: Andrew Fox and Matthew Godden
A marriage is a complex web of relationships. When a relationship breaks down there are a huge number of matters to think about and numerous arrangements to make. People are frightened about finances and their home, worried about their children, and concerned for the future. The emotional fall out of the whole process can be extremely traumatising.
Helping a client with the upset, anger and acceptance of the situation is an essential part of the lawyer’s role. Here at Sinels we will help you work through these matters and assist you in putting things into perspective by advising you on the law and explaining what practical steps can be taken towards helping you build a new life.
Our family law group offers a highly skilled team of matrimonial lawyers who deal with divorce on a daily basis. We strive to ensure that we combine a caring and holistic approach with strategic thinking so that we can achieve settlement before acrimony. We will advise you on the most cost effective and efficient way of proceeding with a divorce whether this be through the courts, mediation, or collaborative law.
In the event that we cannot shield our clients from a disputed divorce, or ancillary hearing, we have a team of litigators who are experienced in dealing with matrimonial and family litigation at all levels.
Philip Sinel’s personal view is that “Divorce is hard enough anyway without lawyers making it worse…There are cases when you need someone who will do what’s necessary – we still offer a total warfare package – but most people do not need that. There are sensible solutions that can be reached between people without a huge amount of drama.”
The Divorce Process
In order to obtain a divorce in Jersey you must have been married for at least three years and either both of the parties live in Jersey, or at least one of them has lived in Jersey for the past year, at the time proceedings begin.
There are different grounds for divorce such as adultery or unreasonable behaviour. However, most people are divorced on the grounds of mutual consent after being separated for a year.
At the first meeting with your lawyer you are likely to discuss the reasons for the breakdown of the marriage and whether the marriage can be saved (www.relatejersey.com). You may be required to provide information in relation to the date of separation, details of any children of the family (including proposed future arrangments for the children), details of your own and your partner's assets, income, savings and pension interests.
The process of obtaining a divorce is relatively straightforward. The key stages to a divorce are as follows:
- The divorce petition will set out the grounds upon which the marriage has broken down and the claims sought (if any) both financial and in relation to children.
- The petitioner (the person who issues the divorce petition) swears an affidavit that the content of the petition is true and confirms his/her intention to proceed with the divorce.
- Once a judge is satisfied that there are grounds for the divorce he will fix a date on which a decree nisi will be pronounced.
- Six weeks and a day later after receiving the decree nisi the petitioner is entitled to apply for a decree absolute which dissolves the marriage and the divorce becomes final.
Divorce is usually a paper based process from start to finish. You probably will not have to attend court, unless arrangements for the children cannot be agreed and require the intervention of the court before the decree can become absolute. However this is unlikely.
Separation Agreements
Many couples facing the breakdown of their marriage do not want to obtain a divorce immediately. For some, it is a chance for a break to consider the future and perhaps seek counselling. For others, it is simply the case that they have not been married long enough to obtain a divorce.
In such circumstances we would advise couples of the benefits of a separation agreement. In general the agreement will set out the terms of separation, how the assets will be divided and, if there are children, how they will be provided for and where they will live. It will also set out provisions for eventual divorce proceedings.
Once a separation agreement has been reached and signed by the parties it is generally binding. The usual process is that when a divorce petition is presented to the court the separation agreement will be ratified by the court and incorporated into a court order.
Children of the Family
If there are children it is important that the arrangements for their future care and maintenance are discussed, and the court will want to know what the arrangements are.
Wherever possible, it is preferable for parents to reach an agreement in relation to the children between themselves as to where they should live and also contact arrangements.
At Sinels we are well aware that such important decisions are often difficult to make, especially in the midst of an acrimonious divorce. We have a team of highly skilled lawyers who will advise on the options available to you as a parent, and will attempt to resolve any contentious issues in relation to the children. Usually agreements can be reached without going to court, but in some cases applications to the court are needed. Court action in this area should be used only as a last resort and the welfare of the children will be the court’s paramount consideration
(www.judiciary.gov.uk/publications_media/media_releases/2009/0309.htm).
The Finances and Assets
On divorce couples frequently need assistance to rearrange their financial situation e.g. there may need to be a transfer of property from one spouse to another and one party may need to pay maintenance to the other and for the benefit of any children.
Either party to a marriage can apply for a financial settlement (should matters not be resolved amicably) once divorce proceedings have been filed. Once an application has been submitted, the Court imposes a time-table on the parties. This process requires full disclosure of each party’s financial situation and leads to negotiation aimed at settlement. If negotiation fails then you proceed to a final hearing in front of a judge who will make a decision.
Sorting out the assets is a skilled and complex task. It is essential to assess the short term impact a split will have and thereafter to consider the longer term future needs of both spouses and children. All the income and assets of the parties will need to be taken into account from offshore assets to house contents and valuables! Sometimes there is reluctance by parties to give complete disclosure, or the assets may be undervalued.
At Sinels we differentiate ourselves from our competitors by being lawyers who are comfortable with figures. Our experience of dealing with trust and financial matters can be of significant assistance when it is necessary to dissect and trace complex matrimonial assets. As a result we are able to assist our clients through the financial issues that arise in big money cases.
Each case is very different. Our aim is to find a ‘tailor made’ solution for you as quickly, efficiently and as cost effectively as possible. Where there are sufficient assets to sever all ties between the parties a “clean break” solution may well be the outcome. If not, then continuing maintenance may be a possibility, whether for life, or until re-marriage, or such term as may be agreed or ordered by the court.
We try very hard to resolve cases by negotiation and avoid a fight through the courts.
Not all marriages end acrimoniously and there are alternative ways of reaching agreement. We recommend mediation and collaborative law as a means of resolving disputes. These procedures sit well with our general approach to dispute avoidance and resolution thereby alleviating unnecessary stress at what can be a very difficult time.
Mediation
In cases where the parties have managed to stay on good terms it may be beneficial to instruct the services of a trained mediator who will assist the parties with reaching an agreement in relation to either financial matters or children matters (www.jerseyfamilymediation.org.uk).
The emphasis of a mediator is to encourage and guide the parties impartially towards a negotiated settlement.
If the parties reach a settlement with the help of a mediator, it is advisable for them to receive independent legal advice on the proposed settlement. If the settlement is thought to be fair, the terms of the agreement will be incorporated into an order of the court (an Act of Court) which will be binding on both parties.
At Sinels we have experience of mediated settlements and can advise you on this matter.
Collaborative Law
Collaborative Law is a relatively new way of resolving family law disputes. This method of dispute resolution is relatively new to this country having enjoyed a high degree of success in the United States and Canada (www.resolution.org.uk).
Collaborative Law differs from mediation in that each party has a legal advisor present throughout the process and at all meetings. The emphasis of this approach to resolving disputes is that the parties and their lawyers try to sort out difficulties between the clients by discussing matters around the table, together. It is an open and transparent process that can ultimately result in a settlement that both parties are happy with.
Importantly, all those involved in the process (lawyers and clients alike) sign an agreement to say that they will not take the case to court. This encourages all concerned to concentrate on reaching a settlement, knowing that if they do not, and one party wishes to go to court, both parties will need to instruct new lawyers.
Once an agreement is reached it can be embodied into an Order of the court.
Wills
Upon receiving the Decree Absolute, it may be necessary for you to make a new Will unless the existing will was made in contemplation of Divorce.
Domestic Violence
Domestic violence is a pattern of controlling and aggressive behaviour from one adult (usually a man), towards another (usually a woman), within the context of an intimate relationship. The abuse can take many forms: physical, sexual, psychological or emotional. Other common features are financial control and social isolation.
It can happen to anyone, and in all kinds of relationships. A violent environment is unhealthy and should not be tolerated. Children are also affected by domestic violence both in the short and long term.
It is important that you do not blame yourself for the violence and it is essential that you seek help. As family law experts we can discuss all of the options available to you and use the law to protect you and your children from further violence. This can include an injunction to prevent a person from approaching or contacting his or her partner or spouse.
(www.cab.org.je);
(www.jerseywomensrefuge.org)
Pre-Nuptial Agreements
Pre-nuptial contracts are unusual in Jersey. The Jersey Courts retain the right to make orders disposing of financial claims even where there is a pre-nuptial contract. However, a properly drafted pre-nuptial agreement can be pertinent to the Court’s final decision.
At Sinels we take the view that it is worthwhile having an in depth initial interview with a member of our family team before making a decision as to whether a pre-nuptial agreement is right for you.
Costs
Our work is charged on an hourly rate depending on the seniority and the experience of the lawyer involved. We advise clients of our hourly rate for each fee earner when the appointment is made. At your first meeting we will advise you on the anticipated level of fees for your case and the options available to you for funding. We will confirm this to you in our retainer letter which we ask you to sign.
We will advise you if we think you are eligible for public funding and can put you in contact with the Legal Aid scheme.
All clients worry about the cost of a case. We understand your concern and do our best to keep costs contained.
Court Jargon
The Divorce Petition: this document starts off the divorce and is filed with the Royal Court. It deals with the grounds of the divorce, proposed arrangements for the children and what financial relief is sought.
The Petitioner: this is the person who files the divorce petition with the court.
The Respondent: this is the person who receives the divorce petition once it has been filed with the court.
Acknowledgment of Service: this document is signed by the respondent and lodged at court. In this document the respondent has the opportunity to reply to the contents of the divorce petition and the statement of arrangements for the children. This document has to be returned within 8 days of service of the divorce petition.
Decree Nisi: this is the first stage of the divorce being granted. Decree Nisi will be made if the court is satisfied with everything.
Decree Absolute: this is the final stage of the divorce. It can be made no earlier than 6 weeks after the making of a Decree Nisi.
Statement of Arrangements for the Children: this document sets out the current and future living arrangements for the children of the family and accompanies the divorce petition.
Ancillary Relief: this is a generic term that covers, amongst others, child maintenance, spousal maintenance, lump sums and the transfer, sale or settlement of property.
Affidavit of Means: this document gives full details of the parties’ respective financial positions. It is completed by both parties and it is expected that they will make full and frank disclosure of their financial positions in it.
Questionnaire: this document enables the parties to ask for further and better information following consideration of the respective parties’ affidavits of means.
Reply: this document is the reply to any questionnaire.
Interim maintenance or maintenance pending suit: this is an application for an urgent order for temporary financial maintenance.
Without prejudice: letters are often headed with this phrase in relation to offers to settle. They are not shown to the judge hearing the matter until after the case is over and the judge decides who should pay the costs.
Preliminary Directions Hearing (“PDH”): this is a first court appointment where the Greffier makes decisions as to how the case will proceed. The parties legal representatives must attend this hearing. If a party is unrepresented they must attend the hearing in person.
Case Review Hearing (“CRH”): the aim of this court appointment is to define the issues between the parties. Both parties must attend the hearing in person along with their legal representatives.
Final Hearing: at this hearing the parties will present their respective positions to the judge and evidence will be heard before a final determination is made. The court’s decision is binding.
Disclaimer
The contents of this document are for general explanatory purposes only. Although the law and legal practice contained in this document is correct at the time of going to print, there are frequent changes in this field of law and Sinels Advocates accept no liability whatsoever for any reliance based on the content. A suitably qualified lawyer should always be consulted when any legal advice is required.
Authors: Andrew Fox and Matthew Godden
