INTRODUCTION
The Bailiwick of Jersey is one of the three Crown Dependencies of the British Crown that surround the United Kingdom. It is located in the English Channel, sixteen miles west of the French Normandy coast. It is not part of the United Kingdom's territory and has never been absorbed into the common law legal system of England and Wales, having been a self-governing territory for over 800 years, enjoying virtual total autonomy over its own taxation, legal system and domestic affairs.
Jersey's legal system has its roots in Norman customary law but has also been influenced in varying degrees over the centuries by English law and French law. Jersey's law of trusts is governed principally by the Trusts (Jersey) Law 1984, as amended. Its matrimonial law is governed by the Matrimonial Causes (Jersey) Law 1949. In the absence of local legal authority or legislative provision, Jersey will often look to judgments of English and Commonwealth courts as being persuasive (Re Malabry Invs Ltd 1982 JJ 117). Local legislation is enacted by Jersey's parliament, the States Assembly. Assent to local statutory law is effected through the Privy Council in London.
Jersey is not a part of European Union and is not subject to EU law. Therefore, EU Regulations concerning jurisdiction and the recognition and enforcement of judgments in civil or matrimonial matters.
The family court (the Family Division of the Royal Court of Jersey) has jurisdiction in relation to divorce, nullity and judicial separation (Matrimonial Causes (Jersey) Law 1949, Articles 3 and 6) where:
- the parties are domiciled in Jersey when proceedings are commenced;
- either of the parties was habitually resident in Jersey for the year immediately preceding the date proceedings are started.
The same jurisdiction rules apply for both mixed and same sex spouses and civil partners.
Financial remedies are generally applied for within divorce proceedings. Claims can be made for:
- Periodical payments (for children and spouses).
- Lump sum payments (with security as necessary).
- Property transfers.
- Orders for sale of property.
- Variation of nuptial settlements.
- Interim orders.
The Royal Court does not currently have jurisdiction to make a pension sharing order in matrimonial proceedings although, in practice, that is often compensated for by making provision from elsewhere in the matrimonial 'pot'.
- DIVORCE AND TRUSTS
Jersey is one of the foremost offshore jurisdictions in the world for private wealth structuring using trusts. Jersey law recognises trusts whether governed by Jersey law or trusts established and governed by laws other than Jersey law. Jersey is a party to the Hague Trusts Convention.
It has a very well-developed case law concerning trusts and trust disputes and Jersey's principal court, the Royal Court of Jersey, and the Jersey Court of Appeal are recognised internationally as a pre-eminent source of leading modern trust jurisprudence.
A common issue in play in matrimonial proceedings involving Jersey is whether any resulting matrimonial award can be enforced against a trust in Jersey. Jersey has enacted legislation in Article 9 Trusts (Jersey) Law 1984, (known as the 'firewall') specifically to protect Jersey trusts from by interference of orders of foreign courts.
Where there is matrimonial claim to: i) vary a Jersey trust; ii) claim trust assets as part of a matrimonial award; or iii) treat a trust as belonging to a spouse or otherwise being a 'financial resource' from which maintenance or a lump sum is to be satisfied, the treatment of the trust assets could be subject to a range of analyses:
- Whether the trust is a nuptial settlement that is capable of being varied or subject to a property adjustment order under the jurisdiction of the matrimonial court (e.g. under section 24(1)(c) Matrimonial Causes Act 1974).
This involves affirming the existence of a genuine trust. Where the trust is governed by Jersey law, and variation is sought as a remedy, early and careful consideration will be required as to whether any order made by a foreign court is capable of enforcement within Jersey. Where potential enforcement will be against a Jersey trust, the firewall legislation in Article 9 Trusts (Jersey) Law 1984 will be engaged.
- Consideration (particularly if the matrimonial proceedings are outside Jersey and the trust assets within the jurisdiction of the matrimonial court) will often be given to whether the trust can be established as being a sham. An allegation of sham against a Jersey trust goes to the validity of that trust and again, early consideration of Jersey's firewall legislation must be considered. An allegation of sham entails a finding that the parties to the trust dishonestly intended to present the trust as genuine.
- Whether the trust assets can be attributable to the settlor/beneficiary in another way, e.g. whether the way the powers and beneficial interests in the trust are arranged is such that the settlor/beneficiary has de facto control of the assets and has rights that are, in substance, equivalent to ownership e.g. Pugachev ([2017] EWHC 2426 (Ch)). The Jersey courts have never had to rule upon the analysis employed by Birrs J in the case of Pugachev. Whether the firewall would protect a Jersey trust from such an analysis remains an open
- Financial disclosure
- The financial disclosure obligations of a spouse in divorce proceedings filed in Jersey relating to their trust interests on a worldwide basis would be as follows:
- Each party to divorce proceedings must, following the preliminary directions hearing, file and serve an affidavit of means containing full particulars of all property, income and expenses of each party. This includes any interest either spouse has under a trust, located anywhere in the world, whether that interest is vested or contingent.
- The disclosing spouse is obliged to state the estimated value of their interest under the trust and state when, if ever, that interest is likely to be realisable. An interest under a discretionary trust must be disclosed. If a spouse believes that the interest may never be realisable or has (in the present or future) no value, they must provide their reasons for that assertion.
- In order to engage the Royal Court's jurisdiction under Article 27 Matrimonial Causes (Jersey) Law 1949 (the power of the court to vary a nuptial settlement), the particulars given about a settlement should include (or can be asked about in any subsequent questionnaire that follows receipt of the affidavit of means) the basis upon which the settlement was established and the circumstances by which it is said to have 'nuptial quality'.
The financial disclosure obligations of a trustee in divorce proceedings filed in Jersey where the trust is governed by Jersey law are as follows:
- Whether the divorce proceedings are commenced in Jersey or whether they are commenced outside of Jersey, unless the trustee submits to the jurisdiction of the divorcing court and is made the subject of an order for disclosure about the trust, there is no obligation of financial disclosure concerning the trust that is imposed upon the trustee simply because a beneficiary is going through a
- There is no standard way in which a beneficiary's interest can be structured under a Jersey trust. A beneficiary may have a fixed interest or can be an object of the trustee's discretion to apply income or capital in their favour, as is the case with a discretionary trust. It may be a mixture of the two.
- Whether or not the trustee submits to the jurisdiction of the divorcing court, when divorce proceedings are in prospect and one or both of the divorcing spouses is a beneficiary of the trust, the trustee should seek Jersey advice on whether it wishes to exercise its discretion to provide financial information concerning the trust and the beneficiaries' interest under it. The trustee's discretion to provide information and disclosure about a trust is independent of the divorce proceedings.
- A focused disclosure exercise of relevant information about a trust may, in the right circumstances, serve to head off what might otherwise be a credible threat to the trust and its assets posed by divorce proceedings. The trustee will need to make a decision (which it may also seek to have 'blessed' by the Jersey court) whether to provide financial information at all and, if so, what information, to whom, under what conditions (e.g. a confidentiality ring). This will always be fact specific exercise.
This chapter forms part of: Family Asset Protection Law Over Borders Comparative Guide 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
