Answer ... (a) What orders can the court make in relation to the division of assets on divorce or judicial separation?
The court has wide powers to achieve fairness when it comes to the division of assets. These powers include:
- the division, transfer or sale of property;
- the payment of capital sums; and
- the transfer of assets (excluding pensions).
The powers are set out in the Matrimonial Causes Law.
(b) What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?
- Needs;
- Compensation; and
- Sharing together with fairness.
The court will look to the Section 25 exercise from England and Wales to ascertain:
- the individual factors which are operative in each case; and
- the degree to which they should be taken into account.
(c) How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?
The court can:
- take conduct into account where it would be inequitable to disregard it;
- ‘add back’ assets and offset these against any remaining assets where available; and
- take litigation conduct (including non-disclosure) into account both at the initial division of assets and if the non-disclosure comes to light at a later date.
(d) Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?
This is an interlocutory issue and will be for the court to decide by reference to proportionality.
(e) Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?
Yes, subject to the availability of other assets, the age of the children (if any) and the affordability of the property. Priority may be given to allow the children to remain in the family home, with the non-resident parent’s interest being calculated and its realisation being deferred. That interest may be a fixed amount or a percentage of the value on the occurrence of the trigger event.
(f) Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?
Yes, Jersey is a major offshore financial centre. The way in which the trust will be treated will be case specific. The factors to consider will include:
- whether the trust is a Jersey law trust;
- whether both parties (and any children) are in the beneficial class (or can be added and by whom);
- the position of the trustees, if the trust is discretionary in nature; and
- the availability of other non-trust assets.
(g) What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?
The court has wide powers of enforcement, including the power to order:
- the ‘forced’ sale of the property; or
- the transfer of the property from one party to the other.
Non-compliance is contempt of court, and as such the court has powers when it comes to costs and other sanctions under the Royal Court’s inherent jurisdiction.
(h) If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?
Yes, subject to the court being provided with an application for a consent order together with such financial summary information, so that it can properly consider the terms in the context of the assets/resources. The consent order and financial summary are filed with the court, which will scrutinise the terms. The court can request additional information and clarification.
(i) Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?
Yes, the court can be asked to make financial orders in the context of Jersey-situate assets/property to give effect to orders made in a foreign divorce. Either party can apply for such an order.