Argument for “no fault” divorce

Jersey, together with England and Wales, retains fault as the basis for divorce – one of the few legal systems to do so. The laws in Jersey that set out how a married couple divorces are the Matrimonial Causes (Jersey) Law 1949 (as amended) and the Matrimonial Causes Rules 2005.

When Jersey implemented equal marriage in 2018 it included amendments made to the Matrimonial Causes Law that created certain exemptions for same sex marriages where it became too onerous to adjust the law to accommodate the realities of same sex partnerships. This creates an inequality within law between how same sex and different sex couples may be divorced. By extension, the means of dissolving a civil partnership is also unequal.

Removing two key areas of the divorce laws – a) the finding of fault and b) the requirement to wait for three years after marriage/civil partnership before a petition for divorce/dissolution may be made – would remove the difficulties around defining certain acts for all couples, and thus the inequality. It would also have a number of other benefits.

Adultery – problem area number 1

Article 7(1)(a) of the Matrimonial Causes Law says:

“A petition for divorce may be presented to the court by either the husband or the wife on the ground that the respondent – (a) has since the celebration of the marriage committed adultery and the petitioner finds it intolerable to live with the respondent;”

Article 7(3) goes on to make the exemption:

“For the purposes of this Article, only conduct between the respondent and a person of the opposite sex may constitute adultery.”

For husbands who have been left by their wife for another woman, wives who have been left by their husband for another man, or a same sex partner who has been left for another partner of the same sex, they will find it ridiculous that the law does not recognise them as victims of adultery.

It is clearly unfair that only certain couples can petition for a divorce on the grounds of adultery.

It is assumed that the law has been drafted in this somewhat coy way due to the perceived complications arising from describing an adulterous act between same sex partners.

(Aside – Liberate believe that it would be possible to draft a definition of adultery that encompassed same sex sexual acts. Interestingly, the Sexual Offences (Jersey) Law 2018 manages an encompassing definition of a sexual act as: “an act (including penetration, touching or communication) is sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual.”)

However, instead Liberate are in favour of reworking Article 7 in its entirety and its counterpart (Article 28) of the Civil Partnership (Jersey) Law 2012 to permit a petition for divorce/dissolution to be presented without having to apportion blame based on adultery or any other condition. This would remove the need to describe an adulterous act between any participants and any inequality arising.

It also serves to reduce or remove the distress where one party to the marriage or civil partnership is named as the cause of its breakdown. This in turn makes it more likely that good working relations can be maintained between the couple for the sake of social cohesion and any children of the marriage/civil partnership.

Nullity – problem area number 2

Article 18(1)(a) and (c) of the Matrimonial Causes Law says:

“The court may decree the nullity of a marriage on any ground on which a marriage is by law void or voidable or on any of the following grounds, that is to say – (a) the continuing impotency of one party or of both parties to the marriage since the celebration thereof;… (c) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage;”

Article 18(5) goes on to make the exemption:

“Paragraphs (1)(a) and (c) do not apply to the marriage between persons of the same sex.”

Again, it is assumed that this exemption is down to a coyness regarding attempting a definition of impotency or non-consummation for same sex couples. It also is clearly unequal.

Articles 18(1)(g), (h) and (i) are also problematic in their handling of a change of gender within marriage.

In an island where two people can marry irrespective of their gender the inclusion to void a marriage based on the changed gender of one spouse no longer makes any sense. Changing gender does not now legally invalidate the marriage as it did when marriage was only available for different sex couples.

The reason that changing gender within  marriage or concealing you are transgender prior to marriage are still included as grounds to void a marriage is based on the prejudice that it is such an outrageous act for someone to change their gender that, were it to happen in a marriage, the marriage would be over.

Why is this change in a spouse included when other major life changes are not included as grounds for voiding the marriage? What if someone were to enter the marriage as a high-earning financier and, once married, decide they would prefer to be unemployed leaving their spouse to bring in the household income? What if someone were to enter the marriage saying they wanted children but, once married, revealing they would prefer not to have children?

Other major life changes are not given special treatment in the law and, if we remove the need to blame either partner, should be dealt with under the umbrella that the marriage has broken down irretrievably. If a spouse felt that they could not stay married to their transgender partner they should be able to deal with it similarly. (Aside – many marriages survive one partner transitioning within the marriage.)

The grounds for nullifying a marriage are included in law to enable a spouse in extreme circumstances to circumvent the requirement to be married for three years before a petition for divorce may be made. The grounds for voiding a marriage are not sufficiently wide enough, however, to allow those in unhappy marriages that are causing distress to end the marriage prior to its third anniversary.

Liberate, therefore, is in favour of removing the requirement for a couple to be married for three years before petitioning for a divorce, thus removing the need to legislate to nullify marriages and enabling those who are experiencing unhappy marriages to end them sooner.

Having said this, Liberate is also in favour of including within the law a requirement for couples wishing to divorce/dissolve a civil partnership to have to engage in a process of counselling to attempt a reconciliation and, where that fails, mediation and arbitration to resolve the situation as amicably as possible without the need to resort to a court of law.

Liberate has made clear its support for the institution of marriage, arguing for it to be available to all couples. We are not in favour of making divorce easier, but we are in favour of amending the divorce laws to make the process: equal for all couples; less acrimonious for both parties and their closest relations; less expensive in terms of legal time and the resources of the state, such as the Royal Court, that are required; and, one that encourages counselling, reconciliation, mediation and arbitration to resolve marital breakdown wherever possible.

Anyone interested in reading more about why Jersey needs to change its divorce model for one that does not seek to apportion blame should read this excellent paper by Advocate Barbara Corbett.

Progress: Liberate responded to the consultation  paper issued by the Community and Constitutional Affairs Department. The response to the consultation, it can be found on the States of Jersey website here.

The Minister is putting forward a report and proposition, which will seek States approval for the process and timeframes associated with bringing forward the necessary legislative changes to reform the islands divorce laws including:

• Moving to a no fault divorce based system of divorce which will in turn abolish the requirement for a period of separation
• Enabling couples to jointly file for divorce
• Extending the minimum timeframe for divorce
• Removing the ability of either party to contest a divorce
• Abolishing the three year bar for filing for divorce

We have been told these proposals will be lodged in quarter three of 2022, for debate also in quarter three.