Draft Marriage and Civil Partnership (Dissolution and Separation) (Jersey) Law 202- (P.85/2025): comments

STATES OF JERSEY

DRAFT MARRIAGE AND CIVIL PARTNERSHIP (DISSOLUTION AND SEPARATION) (JERSEY) LAW 202- (P.85/2025): COMMENTS

Presented to the States on 18th February 2026

by the Children, Education and Home Affairs Scrutiny Panel

STATES GREFFE

2025  P.85 Com.(2)

COMMENTS

Background

The Draft Marriage and Civil Partnership (Dissolution and Separation) (Jersey) Law 202- [P.85/2025] (the draft Law') was lodged by the Minister for Justice and Home Affairs on 14th October 2025. The Panel drafted initial comments which were published in advance of the debate in November 2025. Following publication a representation was made by the Jersey Family Law Association (JFLA'), which highlighted notable questions and concerns with the draft Law. In line with due process, after approval of the principles by the States Assembly on 25th November 2025, the Panel called the draft Law in to enable further scrutiny work to be undertaken. A table detailing the matters raised by the JFLA is available to view here.

Following correspondence with the Panel the Minister lodged the Draft Marriage and Civil  Partnership  (Dissolution  and  Separation)  (Jersey)  Law  202-:  Amendment [P.85/2025:Amd.]  (the  draft  Amendment')  on  20th  January  2026.  The  draft Amendment addresses some of the points highlighted by the JFLA, though not all. Further to the Minister's response (on 14th January 2026) to Panel queries, the JFLA additionally provided email correspondence with follow up observations, which is available to view here.

This paper includes commentary on the draft Amendment and a summary of the examination of the various points explored during this phase of scrutiny.

The draft Law

In brief summary, the purpose of the draft Law is to modernise the legislative provisions in place for the dissolution of a marriage or civil partnership and, also, provide for scenarios such as legal separation, annulment, orders presuming death of a party to a marriage  or  civil  partnership  and  matters  relating  to  financial  provision  and arrangements for children. Details of the proposed changes are detailed further in the report accompanying the proposition and, also, in the Panel's first comments.

The draft Amendment

Following  the  Panel's  correspondence  with  the  Minister  in  January  2026  which addressed  the  queries  highlighted  by  the  JFLA,  the  Minister  lodged  the  draft Amendment. In summary, the draft Amendment changes the following:

• Article 21: Removal of a reference to a "deed". It was highlighted to the Panel that the work "deed" is not recognised as a legal term in Jersey legislation and it had been suggested that this could be replaced with a reference to a "contract", whilst the wording is not replaced the removal of "a deed" addresses the point raised.

• Article 22 and Article 23: clarification that the dissolution order and annulment order referred to are "final" orders. It was highlighted by the JFLA that the proposed amendment addresses the point raised.

• Article 22, Article 23, Article 24 and Article 27: removing a reference to Article 20 ('Rights of succession cease on dissolution of marriage or civil partnership') as this was suggested as erroneous by the JFLA. The proposed amendment addresses the point raised.

• Article 24: renumbering to correct a typographical error. The proposed amendment addresses the point raised.

• Article 36: removal of paragraph (8) and subsequent renumbering. Paragraph

(8) originally said: "For the purposes of assessing costs in the proceedings, the applicant's costs are to be treated as reduced by any amount paid to the applicant as a result of an order under this Article for the purposes of those proceedings." The JFLA suggested that the court should have discretion in determining how the applicants' costs are handled at the final order stage. Removal of paragraph (8) would allow that. However, further points were raised in subsequent correspondence about Article 36, these are examined further below.

• Article 40: This incorporates minor wording changes. The JFLA had originally highlighted that this article would see the burden of proof fall to the applicant / person A, who may be the financially weaker and / or more vulnerable spouse. The Panel understands that the Minister for Justice and Home Affairs and JFLA will meet to discuss this point further, as it is suggested that the proposed changes do not fully address the concerns raised by the JFLA. See below for further details.

The Panel is content with the changes proposed by the draft Amendment and is advised that any further minor amendments arising from ongoing discussions could be introduced through Regulations before the draft Law is enacted.

Further points for consideration

The Panel had the opportunity to speak with the Minister for Justice and Home Affairs in a private briefing on 23rd January 2026 and, separately, with a Family Division Judge (Royal Court) on 10th February 2026 to discuss the various points from the JFLA correspondence which had not been addressed by the draft Amendment.

• Non-inclusion of the grounds of "irretrievable breakdown"

The JFLA originally advised that it was important that the grounds on which a court would dissolve a marriage or a civil partnership were detailed in the legislation. In further correspondence and discussions about this point, the Minister for Justice and Home Affairs confirmed that the draft Law was deliberately drafted as such, so that a divorce or dissolution could not be contested or challenged, for example, in situations where there was an abusive relationship. The JFLA reverted to say:

It is not accepted that the inclusion of the legal ground upon which the Court will have the power to dissolve a marriage/civil partnership might give rise to a potential challenge against an order for dissolution. The law makes no provision for a party to challenge or 'defend' an application for dissolution. We consider it highly unusual that the legal basis would not be set out in the Law. Notably, this wording is included in the English legislation. [1]

During the meeting with the Minister for Justice and Home Affairs and Government Officers on 23rd January 2026 it was highlighted that the inclusion of this wording was not required and the addition of the wording would not add any benefit to the practical application of the law.

The  Panel  requested  information  on  the  approaches  taken  in  other  jurisdictions, particularly where there was no fault listed in the drafting of the law. With reference to Commonwealth jurisdictions, it was confirmed that many referenced "irretrievable breakdown", but highlighted that not all used this specific wording, for example New Zealand.

2

However, despite this proposed difference between Jersey and other jurisdictions, it was confirmed to the Panel that the Minister maintained that there was no justification for adding the term "irretrievable breakdown" to the draft Law, for the reasons cited above. It was further confirmed that, under the draft Law, the process would see the Court accept a signed statement from the applicant(s) as conclusive evidence that they wished to seek the dissolution of their marriage or civil partnership. This would mean there would be no opportunity to contest the dissolution, which could be helpful in certain situations, for instance, where domestic abuse has occurred and the other partner might otherwise try to dispute that the marriage or civil partnership has irretrievably broken down.

The  Panel  is  content  with  the  advice received  that  the  inclusion  of the  wording "irretrievable breakdown" will not impact its practical application of the law and the fact that Jersey will be different from other jurisdictions will not be of consequence.

• The court has no power to revoke a conditional order

The Panel was advised by the JFLA that, with the exception of Article 3(7), the court was not provided with the power to revoke a conditional order on the application of either of the applicant or on the application of both parties i.e. if the parties have reconciled. The Panel understands that, whilst this can be dealt with in more detail in the court rules, the JFLA stated that the court needed to be explicitly provided with the power to revoke conditional orders within the law.

It is noted that the court is expressly provided with this power in respect of separation orders at Article 4(4), however, the Minister highlighted that these were different to dissolution orders.

2 Table provided to the Children, Education and Home Affairs Scrutiny Panel by email correspondence from Government Officer on 5th February 2026.

The Panel has been advised that the draft Law should include the power for courts to revoke conditional orders. The Panel has also been advised that the wording included in Article 3(7) is considered to be sufficient, however, if any continued concerns remained following the approval of the draft Law by the States Assembly, this was a point that could be discussed and, if necessary, amended by subsequent Regulations. The Panel is therefore content with this point at this time.

• Article 21 – reference to financial provision for children, particularly after 21st birthday

It was suggested to the Panel by the JFLA that further clarity was required in the draft Law relating to financial provision for children and it was suggested that making a secure provision order did not make sense. The Minister for Justice and Home Affairs clarified that the draft Law did enable money to be secured for children beyond the age of 21 if they are in education or training and / or if special circumstances applied. The financial provision was capped at age 21 if there were no special circumstances, or if the individual was no longer in full time education. It was confirmed that special circumstances could include an adult child of the family who lacked capacity and required longer term support and provision.

Furthermore, the JFLA raised concerns that a child who has reached the age of majority would become involved in their  parents' separation. The Minister confirmed that children would not be involved in the process. The written response referred to financial provision for children through Schedule 1 of the Children (Jersey) Law 2002 (CJL'). The JFLA suggested that the Minister's response misunderstood how child financial provision was dealt with in practice, as financial provision was usually dealt with under the provision of the MCJL rather than Schedule 1 of the CJL.

It was emphasised to the Panel that the interpretation of this article would be a matter for the courts. However, further clarification may help to better articulate the intended purpose of the provision. The Panel was informed that this issue could be addressed at a later stage through Regulations, should additional guidance on interpretation be required. However final interpretation of this Article rested with the court.

• Article 22 - wording re "substantial hardship"

Wording in Article 22 of the draft Law refers to "substantial hardship" and the JFLA advised that this did not follow developments in other jurisdictions. However, the Minister advised that both "substantial hardship" and "predicament of real need" both serve to protect vulnerable parties in family law proceedings. It was explained that, whilst the wording differs, both terms are intended to ensure fairness and prevent adverse outcomes. The Minister also emphasised that because Jersey has full autonomy to determine its family law provisions it was under no obligation to follow the law of England and Wales even though Jersey's family law has historically aligned closely with it. Jersey courts retain discretion to interpret the provisions of the draft Law in line with UK case law, should they consider it appropriate.3

The Minister also advised that the use of the term "substantial hardship" was supported by the recommendations of the Jersey Law Commission in its 2014 Report on Divorce

3 Letter – Minister for Justice and Home Affairs to Panel – 14th January 2026

Reform. During the meeting with the Panel on 23rd January 2026, the Minister advised that she wanted the law to be understandable for Islanders and opined that the phrase "substantial hardship" was clearer than "predicament of real need".

The Panel is content that this wording difference is a matter of interpretation for the courts and that it should not hinder the adoption of the draft Law.

• Article 33 - Interim Financial Orders

In correspondence to the Panel, the JFLA suggested that Article 33(2)(c) regarding interim financial orders was not required as, if the court had refused the application, there was no interim order in force. However, the Minister subsequently advised that the Article was a necessary component of the draft Law and that its removal "would compromise judicial flexibility, potentially perpetuate inequitable financial obligations, and undermine protections for vulnerable individuals." [2]

The Panel was advised that interim financial orders would be granted based on the facts available to the Court at the time. Circumstances could change significantly at a later date, for example, improved financial independence or altered living arrangements, making continued support unnecessary.

The Minister also highlighted that, in marriages or civil partnerships involving abuse, interim orders could be used safeguard the vulnerable party. However, once safety and stability are restored, ongoing financial support may no longer be appropriate. It was confirmed that the Court could adapt orders to reflect circumstances.

The JFLA suggested that the Minister's response misunderstood the point being made and that, regarding practical application, if the purpose of the provision was to provide the Court with the ability to bring an interim maintenance order to an end after it has been made, the current wording would be more appropriate, namely "until further order of the Court".[3]

In the meeting on 23rd January 2026 with the Minister, it was suggested that the wording was suitable as the order could be made and then revoked before the refusal of an application. Removal of the wording would reduce flexibility of the law. The Panel is therefore content with the wording of the draft Law on this point.

• Article 36 - Orders for payment in respect of legal services

The JFLA highlighted the challenges for the financially weaker spouse to access and utilise joint assets and / or income which would have been considered joint during the marriage or civil partnership but would not be classed as such from the point of separation. The JFLA highlighted that during cases where there was abuse, the case could take longer to resolve, they explained that, in these situations, "Family lawyers have limited ability to prevent such abusive behaviour as the court is unable to consider all of the circumstances of the case until it makes final determinations in respect of financial issues." [4]

The  Minister's  proposed  draft  Amendment  removes  one  paragraph  of  Article  36 (namely, paragraph 8) to give the court flexibility at the final order stage, however, has not made any other changes.  The JFLA has suggested that Jersey should not be following the English provisions in respect of legal services orders due to feedback about their use in practice in that jurisdiction.

The Panel notes the JFLA's concerns about payment for legal services but is content that there is potential for court discretion. In relation to difficulties in securing litigation loans, the Panel notes that access to borrowing is more limited in Jersey and that the court would take this into account where a party is unable to obtain funds. However, it was also suggested that it would not be equitable in divorce proceedings for one party to avoid demonstrating that they had explored all reasonable funding options.

This is another area where further discussion could help refine the wording of the article through subsequent Regulations, for example, revising the requirement that the court "must" be satisfied to a formulation such as "the court could consider".

• Article 36 - Inclusion of orders pursuant to Article 10 of the Children (Jersey) law 2002 in respect of any chid of the family

The JFLA suggested amending Article 36(1) of the draft Law to reference Article 10 of the Children (Jersey) Law 2002, relating to orders in respect of children. The JFLA suggested  that,  whilst  it  was  an  unusual  proposal,  there  could  be  separation  or dissolution cases where it was necessary for the financial weaker spouse to issue applications in respect of the children to ensure their safety.

The Minister for Justice and Home Affairs advised that it was not necessary to amend Article36(1) and suggested that, if any additional provision were required, it would be more appropriate to include a similar, though more limited, measure within Schedule1 of the CJL for the purposes of child support applications.7 A separate amendment to the CJL, as suggested by the Minister, would be a separate matter and the Panel has not scrutinised  this  aspect  further  at  this  time.  The  JFLA,  however,  clarified  that applications made under Article10 of the CJL relate to arrangements for children (such as residence, contact or leave to remove), rather than financial provision, and therefore would not affect divorcing parties seeking the Family Court's assistance in determining financial matters for their children.8

However, notwithstanding the points raised by the JFLA, the Panel is satisfied with the current wording of the draft Law and is concerned that expanding this provision at this stage could risk complicating its approval. The Panel would, however, suggest that if this issue proves significant in practice, it should be considered for inclusion in future Regulations.

• Article 40 - Regarding transactions intended to prevent or reduce payment under financial order or sale of property order

In relation to Article 40, namely transactions intended to prevent or reduce payment under financial order or sale of property order, the JFLA queried whether the burden of proof would fall to person A who, in some circumstances, could be the financially

7 Letter – Minister for Justice and Home Affairs to Panel – 14th January 2026 8 Written Submission – Jersey Family Law Association – 18th January 2026

weaker and / or more vulnerable spouse. They suggested that the draft Law should include a rebuttal presumption against party B.

In discussions with the Minister, it was acknowledged that the inclusion of a rebuttal presumption could protect the financially weaker or vulnerable spouse, however, it was highlighted that this may not always be the case and there could be an increase in litigation cases. The Minister confirmed that further discussions could be had with the JFLA and that if amendment was necessary it could be dealt with in Regulations before the commencement of the law.

It was highlighted to the Panel that the principle of changing the presumption could effectively result in a "fishing" exercise.

Additionally, the Panel was informed that, in England and Wales, a three-year rule applies to transactions under the equivalent provision. The draft Law does not include such a rule, meaning that transactions from a longer period may still be captured. The Panel notes that a time limit may be a practical feature worth considering for future inclusion.

However, the Panel is content with the wording of Article 40 of the draft Law (as amended).

Conclusion  

The Panel was grateful to the JFLA for their input and information throughout this process. It is also grateful to the Minister, Government Officers, and the Family Division Judge for taking the time to help inform the Panel in its scrutiny of the draft Law.

The Panel does not believe that any of the points raised are significant enough to postpone further readings and, if the Assembly thinks fit, approval of the draft Law.

The Panel is supportive of both the draft Law and the draft Amendment, however, requests that, subject to Assembly approval, the Minister for Justice and Home Affairs initiate discussions to consider whether the following matters should be addressed through further Regulations ahead of the draft Law's enactment:

• Adapting the wording of the law to ensure that there is explicit power provided to the court to revoke a conditional order;

• Adapting the wording of the law to clarify suitable provisions for children, particularly when over the age of 18 (Article 21); and

• Adapting the  wording  to allow  further court  discretion  around  orders  for payment in respect of legal services (Article 36).

[1] Written Submission – Jersey Family Law Association – 18th January 2026

[2] Letter – Minister for Justice and Home Affairs to Panel – 14th January 2026

[3] Written Submission – Jersey Family Law Association – 18th January 2026

[4] Written Submission – Jersey Family Law Association – 16th December 2025