The Matrimonial Causes Division of the Royal Court of Guernsey has jurisdiction to deal with applications for financial orders on divorce, as well as matters involving where the children of the marriage will live, and any maintenance payments.
On 4 November 2020, amendments to the Matrimonial Causes Law 1939 (the Law) came into force which increased the powers of the Court and provides different options to divorcing couples in relation to their real and personal property.
Previously, in respect of financial orders the Court had the power to make lump sum orders, vesting orders in respect of property, interim maintenance orders, orders for spousal maintenance and orders for child maintenance.
Further, Section 46 of the Law gave the Court the power to make an order for property to vest in the name of one party or be divided between them.
However, the Court did not have the power to order the sale of a property, and the practice of the Court would be to award a lump sum to one party which would in all likelihood mean the property would need to be sold by one party to meet that lump sum. This was a creative way to achieve an outcome that was fair to the parties.
Under the amended Section 46 of the Law, the Court has more varied powers in relation to real or personal property. The court can now:
- order that property will vest in a party, in a child of the marriage or in another person for the benefit of such a child, in such proportions as the court may direct;
- order that property is held in trust for a party or child of the marriage, which may include a trust for sale;
- vary a trust or settlement of property;
- order the sale of property. It may also order how the proceeds of that sale should be distributed to the parties or a child of the marriage;
- suspend the right of a party to seek licitation (a customary remedy under which a joint owner can ask the court to order a judicial auction of the property);
- create or vary a usufruct (enjoyment), droit d’habitation, lease or licence; and
- on making any of the orders above, order the payment of a lump sum or periodical payments.
If a third party has an interest in the property subject to an order, the Court is now under a duty to give that third party a chance to make representations, which will be taken into account.
The power of the Court to order the sale of the property resolves a gap in the law which created difficulties for divorcing couples who owned property. The more flexible range of orders for property creates options for the Court in relation to the family’s circumstances.
It is hoped that these changes will make it easier for the Court to provide solutions which allow parties to move forward with greater ease after the end of their marriage, and family practitioners will watch with interest to see how the court exercises these new powers.