The Matrimonial Causes Division of the Royal Court ("the Royal Court") deals with matters of divorce, Judicial Separations, annulments and dissolutions, contentious Judicial Separations and applications relating to children.
The Domestic Proceedings Division of the Magistrate's Court ("the Magistrate's Court") deals with family matters in respect of unmarried parties. In addition, it also has jurisdiction for married parties who seek maintenance or separation or domestic violence injunctions.
Main laws covering family matters in Guernsey
These are as follows:
- The Matrimonial Causes Law (Guernsey), 1939 (as amended)
- The Domestic Proceedings and Magistrate's Court (Guernsey) Law, 1988 (as amended)
- The Children (Guernsey and Alderney) Law 2008 (as amended)
- The Affiliation Law, 1927 (Loi relative à l'entretien des Enfants Illégitimes, 1927)
The above Laws have been amended over the years. More recently, some have been amended to take into consideration the Same-Sex Marriage (Guernsey) Law, 2016, which can into force in Guernsey on 2 May 2017.
The Royal Court has jurisdiction over divorce proceedings. However, it must be noted that at the date of the commencement of proceedings either party must either:
- Be domiciled in the Bailiwick of Guernsey on the date of the commencement of proceedings, or
- Have been resident in the Bailiwick for twelve months immediately prior to the date of the presentation of the Divorce Petition.
The main ground for divorce is that the marriage has broken down irretrievably. However, the Petitioner (the party issuing the divorce proceedings) must prove that one of the following has occurred:
The Respondent (the spouse of the Petitioner) has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. Within the Divorce Petition, the Petitioner must set out details of the Respondent's alleged unreasonable behaviour.
Two years separation (with consent)
The Petitioner and Respondent have lived apart for a continuous period of at least two years immediately preceding the presentation of the Petition and the Respondent agrees to a decree of divorce being granted.
Five years separation
The Petitioner and the Respondent have lived apart for a continuous period of at least five years immediately preceding the presentation of the Petition.
What happens next?
In general, most divorces are undefended. Defenced divorces are fairly rare.
Once 60 days has expired from the date of the filing of the Petition, the Petitioner can apply for a Provisional Order of Divorce (Decree Nisi). Once a Provisional Order has been granted, a further period of a month and a day must elapse before the Final Order (Decree Absolute) can be granted.
Decree of Judicial Separation
A Petition for a Decree of Judicial Separation is similar to that of a Petition for Divorce. The party issuing a Petition for Judicial Separation must prove one of the five grounds set out under the heading "Divorce" (above). Upon the granting by the Court of a Decree of Judicial Separation, the parties do still remain married but no longer have to cohabit. In addition, once a Petition for a Decree of Judicial Separation has been filed, applications for financial provision can be issued.
Judicial Separation (by consent)
Applications for Judicial Separations by consent are permitted under Guernsey's customary law. There is no requirement for a party to prove any one of the five grounds s listed above but both parties must agree the terms of the Judicial Separation. A Judicial Separation by consent is an agreement by which the parties agree to live apart. It will usually include an agreement on ancillary matters such as the custody of any children, financial provisions and the separation of assets of the marriage. The parties must agree the terms before the Judicial Separation can be presented to the Court for approval. Once the Order has been granted, again it must be noted that the parties remain married but no longer have to cohabit.
Judicial Separations by consent are certainly more common than Petitions for Decrees of Judicial Separation.
A decree of nullity can be obtained if one of the nine grounds set out in Section 34 of The Matrimonial Causes (Guernsey) Law, 1939 (as amended) is proved or any other ground on which a marriage is by law void or voidable.
The nine grounds are as follows:
- The continuing impotency of one party or both to the marriage.
- The marriage was celebrated through fraud, threats or duress by the Respondent to the Petitioner.
- The marriage has not been consummated owing to the wilful refusal of the Respondent to consummate the marriage.
- The Respondent was at the time of the marriage pregnant by a person other than the Petitioner, unless the pregnancy resulted from intercourse that occurred between the Respondent and a former husband during the subsistence of that marriage.
- The Respondent was at the time of the marriage suffering from venereal disease in a communicable form.
- Either party to the marriage was at the time of the marriage of unsound mind or suffering a mental defect, within the meaning of the Loi ayant rapport aux Faibles d'Esprit 1926.
- Either party to the marriage was at the time of the marriage subject to recurrent fits of insanity or epilepsy.
- The marriage was bigamous on the part of the Respondent.
- The marriage has been annulled by another court of competent jurisdiction.
The Royal Court has jurisdiction to deal with applications for lump sum orders, vesting orders in respect of property, interim maintenance orders, orders for spousal maintenance or orders for child maintenance but only once a Divorce Petition or Petition for a Decree for Judicial Separation has been filed.
Once an application for any one of the above orders is made, the Court will make directions as to how the matter should progress. For example, the exchange of Financial Statements (by way of Form A) with supporting documentation. Following on from the exchange of Form As, there may be requests by the parties for additional information or documentation.
If disclosure of documentation is disputed, then the Court can fix a First Appointment Hearing to determine the issues prior to the matter proceeding to the Financial Dispute Resolution Hearing ("FDR").
The FDR is not a final hearing. At the FDR, the Court will consider all of the relevant documentation and the parties' Advocates will make representations to the Court. At the conclusion the Judge will provide the parties with an indication as to the likely outcome should the matter proceed to a final hearing. If the parties fail to reach a settlement after the FDR then the matter will proceed to a final hearing, at which time the Court will hear evidence and make orders at the conclusion of that hearing.
A final order in respect of ancillary relief cannot, however, be made until a final order of divorce, decree of nullity or decree of Judicial Separation has been granted.
In dealing with matters relating to children, such as applications for parental responsibility, residence, contact, specific issue and prohibitive steps, such applications are made as follows:
- Where the children's parents are married and where Divorce and/or Judicial Separation proceedings have been issued, the application should be made to the Royal Court.
- Where no Divorce and/or Judicial proceedings have been issued, then the application can be made to either the Royal Court or to the Magistrate's Court.
- At any time from the commencement of the proceedings, both Courts have power to transfer the proceedings to the other Court should it be felt appropriate to do so.
Matters relating to children are dealt with under The Children (Guernsey and Alderney) Law, 2008 (as amended) and the law applies to matters before both the Magistrate's Court and Royal Court.
The birth mother of a child automatically has parental responsibility of the child. If the child's parents were married at the time of the child's birth, then each parent has parental responsibility.
Parents who separate or divorce continue to have parental responsibility. Unmarried fathers can acquire parental responsibility by either one of the following:
- Marrying the child's mother.
- A Court Order.
- A Parental Responsibility Agreement.
- Being named on the child's birth certificate.It must be noted however that this is only relevant for births registered after 4 January 2010 when The Children (Guernsey and Alderney) Law 2008 came into effect.
Parental responsibility of a child can also be granted to others who are not parents of the child, by adoption or if they have obtained a residence order or parental responsibility order in respect of that child.
Guardians, who are appointed upon the death of parent, acquire parental responsibility for that child. Parental responsibility gives rights to a party or parties who have parental responsibility of the child and obligations in respect of raising the child. Examples of these are consenting to medical treatment, changing a child's surname, travel off Island, education etc.
Where there is shared parental responsibility for a child and the parties disagree on a significant aspect in respect of the child, for example changing the child's surname, removing the child from the Island to live elsewhere and choosing a child's school then the Court will need to decide and make an order accordingly as to what is in the child's best interests.
A Residence Order is an order which directs with whom the child should live on a daily basis. Shared Residence Orders can also be made, whereby a child spends their time between, say, both parents' homes.
A Residence Order can be applied for by:
- Any person with parental responsibility of the child.
- The mother or father of the child.
- Any person (who has obtained leave of the Court to do so).
- Any person with whom the child has lived for at least one year.
- Any person who has the written consent of all persons with parental responsibility of the child.
Should applications for Residence Orders be contested, the Court will have regard to the Child Welfare Checklist which is set out in Section 4 of The Children (Guernsey and Alderney) Law, 2008 (as amended).
The Family Proceedings Advisory Service (FPAS) is an independent service that advises and makes recommendations on applications before the courts. A Family Proceedings Advisor may be appointed by the Judge and will safeguard, promote the interests of children involved in family court proceedings and ensure that the children's views are heard.
A contact order is an order requiring the person with whom a child lives (or is to live):
- To allow the child to visit or stay with a person named in the order, or
- To have contact with the person named in the order.
Contact is mostly unsupervised. When there are grounds to justify supervised contact between the child and another, the Court will order the level of supervision required. Examples of supervised contact are contact taking place at a Contact Centre or contact being supervised outside of the Contact Centre by, say, a family member or family friend who will be in attendance for the duration of the contact session.
Contact can also be way of indirect contact, such as the exchange of letters, birthday cards, emails and the sending of photographs etc.
If an application for contact is contested, the Court will consider what is in the best interests of the child and will also involve the FPAS as set out in the section above.
A specific issue order, being an order made for the purpose of determining a specific question that has arisen, or may arise, in connection with any aspect of parental responsibility for a child.
Details of the types of applications for specific issue orders are contained in the Parental Responsibility section above.
A prohibited steps order is an order that no action of the kind specified in the order may be taken without the consent of the court. This could be, for example, an order that the child should not be removed from the Island.
Applications for child maintenance (when the Court has authority to make an order or orders in respect of contact, residence, specific issue and prohibited steps orders) can be made under The Children (Guernsey and Alderney) Law, 2008 (as amended).
Applications for child maintenance can also be brought before the Royal Court under the Matrimonial Causes (Guernsey) Law 1939 (as amended) alongside the matrimonial proceedings.
In addition, Applications for child maintenance can be brought before the Magistrate's Court under The Domestic Proceedings and Magistrate's Court (Guernsey) Law, 1988 (as amended). Under the 1927 Affiliation Law, there is a process where an unmarried mother of a child can claim maintenance from the father of the child.