Finances after your marriage or civil partnership ends

The Court can make an order if there are financial disputes about money or property.

This guide does not give a statement of the law and will not help you to decide what to ask the Court to do if you are in dispute with your spouse about financial matters. You must decide what to do and what order/s you want to ask the Court to make but you are strongly recommended to obtain legal advice.

You may ask the Court staff for information concerning Court procedures, but Court staff are NOT allowed to offer legal advice or advise you about your different legal options.

Why an order is needed

It is in your interests to get financial matters sorted out and a Court order made. If not, it could/may lead to a future claim being made against you for a share of the wealth you may have acquired after the divorce or end of your civil partnership.

The Law

See Articles 25 to 31 of the Matrimonial Causes (Jersey) Law 1949 as amended and Articles 44 to 51 of the Civil Partnership (Jersey) Law 2012. Jersey courts take into account the factors set out in section 25 of the Matrimonial Causes Act 1973 (“MCA”).

When a marriage or civil partnership breaks down, the Court and the parties will need to consider how best to divide income, any assets including property, savings, pensions and any debts the parties may have.

Section 25 of the Matrimonial Causes Act 1973 essentially sets out the factors to be considered when making financial orders (section 25 factors).

When applying section 25 factors, the family Judge has a wide discretion and looks to provide a fair and equitable financial outcome for the parties.

There is no mathematical formula and the Family Judge looks at each case on an individual basis.

• The Family Judge’s first consideration will be for the welfare and arrangements for your children under 18 years old, to include where they live
• Thereafter the Family Judge will decide on the division of assets based on factors such as:-
  • your ages – for example are you able to get work due to your age and what will happen on retirement
  • length of marriage/civil partnership – is it a short marriage/civil partnership as if so, there is less likelihood the Family Judge will share out money and property equally, particularly if one of you brought money or property in to the marriage/civil partnership. Did you live together before the marriage/civil partnership and for how long?
  • income and ability to earn now and in the future and any other income. If not in work, can you or your spouse /civil partner get work and is there an impact due to child care responsibilities?
  • present and future financial needs and responsibilities, to include paying child maintenance for the children of the family or if you or your ex have other children
  • property and money which each of you have now or in the foreseeable future and any debts. What is the cost of renting or buying? Can you get a mortgage and if so, for how much?
  • living expenses now and in the future. What child care arrangements are needed to enable parents to work to meet financial needs?
  • standard of living –  what standard of living did the parties enjoy prior to the separation, often neither you nor your ex will be able to afford the same standard of living as there are now two households
  • contributions each spouse has made including financial contributions and by looking after the home or caring for the family
  • any physical or mental illness of either of you and /or the children and its impact on earning capacity and housing needs
  • value of any benefit that may be lost, for example, pension. If one of you has pension funds the other may want to get a bigger share of any remaining assets
  • conduct that is behaviour is rarely taken into account. Is it so extreme that it has to be taken into account or has it had a direct financial impact? You will need legal advice if you want to allege conduct is relevant to the financial arrangements as only in very rare cases will it be taken into account, you will also need permission from the court to allege conduct.
  • A Court has to apply the objective of fairness. If there are limited assets, fairness usually begins and ends in considering needs, particularly housing needs.
• There does not have to be equal sharing. The assets may not be enough to exceed joint needs, and /or one of you may have greater needs. The main need in most cases is for housing. Housing and capital and income needs are linked and may be considered in the round.
• The Family Judge may try to arrange a ‘clean break’, so you no longer have any financial ties to one another. However a clean break does not end responsibilities for children.

How is this information captured?

The Family Judge will require both parties to file and exchange a document called an affidavit of means (AOM)  Practice directions FD/13/10 - Draft affidavit of means. This is a lengthy financial statement where each person is required to provide significant financial information, and supporting documentation. Part 2 of the AOM is designed to capture all the information that is relevant for considering the section 25 factors.

The Registrar can:-

• Order a sale of a property and decide how much each of you gets from the proceeds of sale.
• Transfer a property from both of you to one of you or from one to the other.
• Let one of you live in a property for a specified time or until a particular event, the property then to be sold. The Family Judge will also decide how much each of you gets from the proceeds of sale and who pays for the mortgage and upkeep etc. in the meantime.
• Order one of you pays a lump sum to the other.
• Order a transfer of shares.
• Order one party to pay maintenance to the other.

At present, there are no pension sharing or pension attachment orders in Jersey, but pensions can be taken into account in sharing other assets or awarding maintenance.

Special circumstances

There may be special circumstances where you need legal advice as soon as possible:-

• Complicated businesses or trusts
• You made a pre-nuptial agreement
• You are worried about your spouse or civil partner hiding assets or getting rid of them
• Someone else (a third party) claims they own part or all of your or your spouse or civil partner’s property
• Where there are high value assets
• “Non-matrimonial” assets which have not been “mixed” with matrimonial assets.

Spousal or civil partner maintenance

• Be aware that once child maintenance payments are calculated, it may not also be possible to pay spousal/civil partnership maintenance.
• The Family Judge is likely try to arrange a ‘clean break’, so you no longer have any financial ties to one another and are financially independent.
• Sometimes this is not possible, especially if one of you is older and has not worked for many years, that is, an award is made by reference to needs, except in exceptional cases.
• The Family Judge may tell the person with a higher income to make regular payments to help with the other’s living costs, that is, by reference to needs. An outgoings/expenditure schedule should therefore accurately describe needs.
• The Family Judge has to consider whether the amount of proposed maintenance is a fair proportion of the payer’s available income and what the payer’s needs are, bearing in mind that the payer may be paying child maintenance.
• Maintenance can be for:
  • a limited period so there can be a lead up to financial independence
  • until one of you dies, marries or enters into a new civil partnership
• It may be varied if there are material changes in circumstances, on any review, the original order will be the Court’s starting point.
• There is no set formula so the Family Judge has to consider respective incomes from all sources and expenditure including mortgage payments or rent.

Consent order

• If you and your partner have reached an agreement about finances, you can ask the Court to make it legally binding, by applying for a “consent order”. You should try to get legal advice before doing this and get a lawyer to draft a “consent order”
• The legal document may include details on division of your assets, and arrangements for maintenance payments, including child maintenance
• You and your former spouse or civil-partner have to sign the draft consent order and complete a statement of information form. See Practice Direction FD12/07. See Family Division practice directions.
• You do not normally have to attend court but the Registrar may want both of you to attend if something is not clear.
• A final order cannot be made (except for interim maintenance for yourself or child maintenance) until the pronouncement of the decree nisi. The order cannot come into force until the divorce is finalised (made absolute).
• Practice directions FD/13/10 - Draft affidavit of means
• Practice direction FD/12/09 - Information regarding preliminary direction hearing
• Example of how to set out questionnaire on affidavit of means
• Example of how to set out reply to questionnaire on affidavit of means
• Example of how to set out schedule of assets, liabilities and income positions
• Practice direction  FD12/07 - Statement of information for a consent order in relation to a financial remedy

The Family Division of the Royal Court of Jersey has for the past few years offered the facility for court 
led FDR (Financial Dispute Resolution) appointments conducted by the Family Judges. These notes are 
to assist family law practitioners and lay parties in deciding whether to request and participate in an 
FDR hearing, and with the preparation for such hearings.

Scope and Purpose of FDR Appointments

• Participation in an FDR appointment is currently voluntary and will be ordered only where both 
  parties agree to participate in the process.
• The purpose of the FDR is to enable parties to attempt to reach a reasonable settlement by 
  agreement, thereby avoiding the costs, stress, uncertainty and delay of a final hearing.
• The FDR appointment must be treated as a meeting held for the purposes of discussion and 
  negotiation at which the parties must use their best endeavours and actively engage in 
  discussion to reach agreement on the matters in issue between them.
• The parties are under no compulsion to reach agreement at the FDR appointment. If agreement 
  is not reached, the parties are encouraged to continue negotiating after the FDR appointment.
• The Family Judge conducting the FDR ideally will not have had prior involvement with the 
  case. At the FDR, the Family Judge will give an indication to the parties as to what in their 
  view would be the likely outcome were the case to progress to a final hearing before them, but 
  does not determine disputed issues of fact, and does not make any binding decisions. The parties 
  are therefore discouraged from addressing the Family Judge at length on disputed factual issues.
• Everything said at an FDR appointment and all documents filed at or for the appointment are 
  privileged and ‘without prejudice’.
• Where one party is an unrepresented litigant in person, an FDR appointment can only take place 
  with the approval of both the Family Judge who refers the matter for FDR and the Family Judge 
  who will conduct the FDR appointment.

Preparation for the FDR

• Prior to the FDR appointment, the parties must have complied with all directions made during 
  the case.
• Not later than 7 days prior to the FDR unless the Court orders otherwise, the applicant or their 
  advocate must file and serve a bundle the contents of which are agreed with the respondent. The bundle should comply with FD 20/01 and must include the following documents:
  1. An agreed joint schedule of assets, income and liabilities, this document should identify which figures are agreed and which figures are in dispute and should also include a summary of each parties’ costs to date.
  2. A statement from each party which firstly sets out orders sought and, subject to any direction by the Family Judge, should also include:
     1. A brief factual background;
     2. The statement should define what the party considers the available ‘pot’ of assets to be divided and identify any assets that are said to fall outside of the ‘pot’ and why;
     3. A summary of the key issues as they appear to each party and indicating what, if any, such issues are agreed;
     4. A summary or schedule showing the financial effect on each party of their proposed orders
  3. In the event that a case has a complicated and relevant history, a separate chronology, to be agreed if at all possible.
  4. A schedule setting out all offers, and counteroffers made in the case both before and after issue of proceedings, to include all without prejudice offers, or copies of the offer letters.

Reaching agreement

• The parties and their advocates will be given opportunity to negotiate further after the Family 
  Judge’s indication, and the Family Judge will be available to assist the parties as needed in their 
  negotiations.
• Where agreement is reached, this will be embodied in written heads of agreement signed by 
  the parties and advocates, which should then be shown to the Family Judge who should be 
  invited to approve them as an Act of Court (subject only to drafting). The Family Judge may
  then direct a date by which the draft consent order must be filed and will list the matter for a brief hearing that can be adjourned upon filing the consent order prior to the hearing date. The parties may if they are able and prefer, draft at court a final consent order in place of heads of agreement.
• If, following the FDR, a dispute arises between the parties as to the detail of the final order, 
  such dispute will in the first instance be referred to the FDR Family Judge

Following FDR

• If the FDR has been unsuccessful, the Family Judge who had conduct of the FDR shall play no 
  further part in the case, save as referred to above. The matter will be dealt with by a different 
  Judge for final hearing.
• Any documents filed at court for the FDR will be stored in such a way that the Judge who has 
  conduct of the final hearing shall not have sight of them.
• If the FDR has been unsuccessful and the matter proceeds to final hearing before a different 
  Family Judge, neither the parties in their evidence nor their advocate should give to the Judge 
  any details of what was said at the FDR, nor provide any documents filed exclusively for the 
  FDR

There is mathematical formula to determine the appropriate level of child maintenance payable, instead the Registrar looks at each case on the individual facts of the case.

The Family Judge will consider the factors as set out at article 4 of Schedule 1 of the Children (Jersey) Law 2002:

• the income, earning capacity and resources of the parents;
• the financial needs, obligations and responsibilities of each parent;
• the financial needs of the child which can include school fees, child care costs and activities in and out of school;
• the income and earning capacity (if any) of the child;
• any physical or mental impairment of the child;
• the manner in which the child was being, or expected to be, educated or trained.

Child maintenance is normally paid until your child reaches the age of 16 or finishes full-time secondary education, with a review if your child goes on to tertiary education.

The level of child maintenance may be varied if there are material changes in circumstances of the parents and/or child, on any review, the original order will be the Court’s starting point.

• Example of how to set out questionnaire on C4 / affidavit
• Example of how to set out reply to questionnaire on C4 / affidavit