News and Insights
28 September 2016
Where did the love go?
Many of us have read in the popular press about extremely wealthy couples who divorce and the court is asked to divide their assets between them.
This has led many in the world of family law to call London the ‘divorce capital of the world’. It is often felt that the English family courts favour wives over their often fabulously wealthy husbands.
Does this have any relevance to us in Jersey and if it does are there any recent trends that might be useful to a couple divorcing here without huge wealth?
It will not surprise many divorcing couples in the Island to know that English divorce law and therefore the decisions of English judges, heavily influence divorce settlements in Jersey. This is because our legislation is often a mirror image (or very similar) to that in England. This means that decisions made by English judges in what are termed ‘big money’ cases can influence divorce settlements in Jersey both large and small.
The following issues have been dealt with in recent case law in England and are commonly found issues in the family courts in the Island:
Assets that are inherited before or during the marriage
Numerous cases in Jersey consider this issue. It is one that causes much difficulty both between the couple and indeed their wider families. 2010 saw a number of decisions in England dealing with how inherited assets are dealt with. The only common thread running through the recent English decisions is that court will always look at the needs of the husband and the wife and any children first. It will therefore depend as to whether or not the inheritance is needed to cover reasonable needs. This will obviously allow judges a great deal of discretion when dealing with this issue.
If one party feels that she/he has made a special contribution that has considerably increased the couple’s wealth
This was a popular argument put particualrly by husbands several years ago but has now fallen out of favour. It continues to be the case that this would only be relevant if the facts were ‘exceptional’ i.e. an inventor of genius. In these few cases the genius would be recognised by the court and credit given.
If one of the parties is now cohabiting
The courts have said very clearly that the issue to be decided is not what the cohabitee is contributing to the relationship financially but what he or she should be contributing.
The position of the 2nd wife
This can be an important issue where the husband has remarried and he attempts to argue that he needs to maintain the new wife. The position would now appear to be clear and priority cannot be given to the 2nd wife if she marries in the knowledge that there are financial claims by the 1st wife.
The relationship between claims as to capital and income
It has been decided that if the husband has a better earning capacity than the wife, this is likely to affect the level of capital assets that the wife receives in cases where her earning capacity or earning potential is less.
All of the above issues are gender neutral and there will always be cases where it is the wife who has the wealth or the greater income. However, it is still generally the case that it is the financial position of the wife that needs protecting together with any children. It is up for debate as to whether or not this means that the English (and Jersey) courts favour the wife.