Same-sex marriage, divorce and dissolution.

STATES OF JERSEY

SAME-SEX MARRIAGE, DIVORCE AND DISSOLUTION

Lodged au Greffe on 14th July 2015 by the Chief Minister

STATES GREFFE

2015   Price code: D  P.77

PROPOSITION

THE STATES are asked to decide whether they are of opinion

1. to agree, in principle, that appropriate legislation should be brought forward for approval to allow same-sex couples to get married in Jersey, with the legislation to –

1. include civil marriage and religious marriage with appropriate safeguards  in place  to protect  the  rights  of  religious organisations and their officials who do not wish to conduct same-sex marriages;
2. include allowing people in civil partnerships to convert their partnership into marriage;
3. include  retention  of  terms  such  as  husband  and  wife', mother and father' in legislation;
4. not include a spousal veto in respect of gender recognition;

2. to agree, in principle, that current legislation should be amended to confer parental responsibility automatically on unmarried fathers who are named on birth certificates;
3. to agree, in principle, that new legislation should be brought forward for approval to allow for the introduction of a system of divorce and dissolution making it a legal requirement to access and use mediation services  subject  to appropriate  safeguards  and  human  rights considerations;
4. to request that the Chief Minister bring forward for approval by the States Assembly, no later than end January 2017, the draft legislation necessary to give effect to these proposals.

CHIEF MINISTER

REPORT

CONTENTS

Page

SECTION 1: BACKGROUND

1. Background to report and proposition .....................................................  4
2. Overarching policy position ....................................................................  5

SECTION 2: SAME-SEX MARRIAGE

1. Introduction ............................................................................................  6
2. Form for same-sex marriage ceremonies ...............................................  9
3. Conversion from civil partnerships ........................................................  12
4. Language ................................................................................................  12
5. Spousal veto ...........................................................................................  12
6. Conscience clause ..................................................................................  13
7. Conclusion and recommendations..........................................................  16

SECTION 3: PARENTAL RESPONSIBILITY

1. Introduction ............................................................................................  17
2. Unmarried fathers ...................................................................................  17
3. Same-sex couples ...................................................................................  17
4. Conclusion and recommendations..........................................................  18

SECTION 4: DIVORCE AND DISSOLUTION

1. Introduction ............................................................................................  19
2. Three year bar .........................................................................................  21
3. Grounds for divorce and dissolution ......................................................  21
4. Grounds for annulment ...........................................................................  24
5. Minimising conflict ................................................................................  25
6. Conclusion and recommendations..........................................................  27

SECTION 5: CIVIL PARTNERSHIPS

1. Background ............................................................................................  29
2. Abolishing civil partnerships .................................................................  30
3. Closing civil partnerships to new couples but retaining for existing  30 civil partners ...........................................................................................
4. Extending to opposite-sex couples .........................................................  34
5. Conclusion and recommendations..........................................................  37

SECTION 6: COHABITING COUPLES

1. Introduction ............................................................................................  38
2. Cohabiting rights in other jurisdictions ..................................................  39
3. Living together agreements ....................................................................  41
4. Conclusion and recommendations..........................................................  41 SECTION 7: TIMEFRAME .................................................................................  43 SECTION 8: FINANCIAL IMPLICATIONS .....................................................  43

APPENDICES

1  Legislation to be amended ......................................................................  44 2  Living together agreements template .....................................................  45

SECTION 1: BACKGROUND

1. Background to report and proposition

In July 2014 the States Assembly asked the Chief Minister to investigate whether it was appropriate for same-sex marriage to be introduced in Jersey (P.102/2014). On 28th  November  2014 –  following  a  public  consultation  that  ran  from  August  to October – the Chief Minister presented to the States a Report entitled: Equal Marriage and  Partnership:  Options  Paper  Report –  November  2014  (R.170/2014)  ("the 2014 Equal Marriage Consultation").

That Report set out a commitment to allow same-sex couples to get married in Jersey by the end of 2017, subject to States' approval.

It also set out the Chief Minister's intention to bring forward an in principle' report and proposition, after more detailed consideration had been given to related matters, including whether –

• civil  partnerships  should  be  retained  in  their  current  form,  abolished  or extended to same-sex couples
• it is appropriate to introduce legal rights that provide protection for cohabiting couples
• the  grounds  for  divorce,  or  dissolution  of  a  civil  partnership,  should  be amended
• the  current  arrangements  relating  to  parental  responsibility  should  be amended.

These matters are dealt with below.

It  was  originally  intended  that  this  proposition  would  be  lodged  by  the  end  of Q1 2015,  but it  was  delayed  to  allow  for  more  detailed consideration  of  matters pertaining to divorce. This included the findings arising from a recent Jersey Law Commission consultation on divorce reform.

Note 1: Humanist and non-religious belief weddings

The 2014 Equal Marriage Consultation stated there was currently no intention to bring forward humanist and non-religious belief weddings. The grounds being that, whilst the law needs to be amended to allow for same-sex marriage, it does not need to be amended to allow humanists to get married. Humanists and all people who ascribe to other non-religious beliefs can already marry via a civil wedding ceremony.

P.65/2015 was, however, subsequently lodged, asking States Members to make an in principle decision to introduce humanist and open-air weddings. Whilst the Minister for  Home  Affairs  is  fully  supportive  of  open-air  weddings,  and  agrees  that  the necessary legislation should be brought, it is recommended that no decision should be taken, with regard to humanist weddings, at this point in time. If humanist weddings were to be introduced, the law would need to make appropriate provision for other non-religious  belief  groups,  and  there  are  inherent  risks  with  opening  up  the solemnization of marriage too widely. These risks include forced and sham marriage, plus weddings conducted for profit and gain. It is therefore recommended that a decision on humanist marriage is taken after England & Wales and Scotland have completed their proposed reviews of humanist and non-religious belief weddings.

See Ministerial Comments on P.65/2015 (P.65/2015 Com.) for more details.

2. Overarching policy position

This report and proposition is predicated on a simple, clear message:  marriage is important. The 2014 Equal Marriage Consultation found that, despite some very stark differences in opinion as to whether marriage should or should not evolve to include same-sex couples, respondents were clearly in agreement about the importance of marriage in our community.

In bringing forward these proposals, we have given detailed consideration as to how we can best support marriage to flourish, in all its different forms. And, in so doing, we  have  also  focussed  on  how  we  can  help  reduce  the  conflict  associated  with relationship breakdown in order to better protect and safeguard children.

The proposals set out in this report and proposition are therefore far-reaching. They extend beyond the issue of same-sex marriage to other related points of principle.

SECTION 2: SAME-SEX MARRIAGE

1. Introduction

The question of whether or not to introduce same-sex marriage is one that a number of jurisdictions have grappled with over the last few years.

Same-sex marriage legislation was introduced in England & Wales in 2013 and in Scotland in 2014. In May 2015, the Irish Government held a referendum in which 62% of voters expressed their support for its introduction, and in June this year the U.S. Supreme Court  ruled  that  same-sex  marriage  is  a  right  protected  by  the U.S. Constitution in all U.S. states, not just the 19 who have currently legislated for it1.

In every jurisdiction however, its introduction has been subject to a great deal of debate. This arises from a very clear tension between some people of faith, who believe that marriage can only ever be a union between a man and a woman, and others who believe it is untenable to refuse to allow same-sex couples, who love each other, to marry each other. These differences cannot be readily bridged.

P.102/2014 required the Chief Minister to investigate whether it is appropriate' to introduce same-sex marriage legislation in Jersey. The report concluded it was. See extract from the 2014 Equal Marriage Consultation (R.170/2014) below –

P.102/2014  requires  the  Chief  Minister  to  report  to  the  States  whether  it  is appropriate' to introduce same-sex marriage legislation in Jersey.

Appropriateness is a subjective concept. What one person considers appropriate may be regarded as highly inappropriate by another. A determination of appropriateness' is therefore hard to achieve, particularly given that many Islanders hold very strong, very polarised views and that the evidence or facts used to illustrate or inform those views is often seemingly contradictory.

A number of questions have therefore been considered in order to help conclude whether or not it is appropriate for same-sex marriage to be introduced in Jersey:

Q: Does Jersey have to introduce same-sex marriage legislation?

No. Neither the European Court or any other body requires Jersey to allow for same- sex marriage.

Q: Do Islanders want same-sex marriage?

More said yes in response to the consultation than said no, but only 1.5% of Islanders responded. We really do not know what others think.

1 The only known referendum rejecting same-sex marriage was in Croatia in 2013, when

people voted to change the constitution to explicitly state that marriage had to be between a man and a woman.

Q: Will many people benefit from the change?  

Only  a  small  number  of  people  will  directly  benefit  (estimated  at  approximately  44 couples)2.  This  includes  same-sex  couples  who  want  to  get  married  and  their  

children if that marriage supports their parents' relationship to flourish.  

Potentially, all other Islanders will indirectly benefit from living in a community that  treats people with greater equality and which takes steps to de-stigmatize same-sex  relationships. Although, conversely it could be perceived to not benefit other Islanders  if same-sex marriage is seen to damage the institution of marriage.  

Q: Will same-sex marriage damage, or potentially bolster, marriage?  

Marriage is important. The principles of long-term commitment, responsibility and  fidelity that underpin it help bind our community together and make it stronger. From  a government perspective we want to support marriage, not undermine it.  

We know that marriage rates are already declining and divorce rates are increasing.  What we do not know is whether same-sex marriage will have any material impact on  that trend. In countries where same-sex marriage has already been introduced, the  decline in marriage rates was already underway, so you cannot point to same-sex  marriage as the cause.  

Similarly we do not know if same-sex marriage will bolster the institution of marriage.  There  is  not  sufficient  longitudinal  evidence  to  draw  robust  conclusions  about  relationship longevity and satisfaction.  

What we do know is that children fare better if raised in stable families with two  parents. The States of Jersey therefore needs to support all marriages and, where a  marriage fails, support children and parents to overcome any potential damage.  

Q: Will the Island's reputation benefit from the change?  

Jersey can, and does, make independent decisions about legislative changes. It is the  case, however, that as more jurisdictions allow for same-sex marriage, it will become  increasingly untenable for Jersey not to follow suit.  

Whilst many opponents argue that credence should not be given to such matters, it is  the case that failure to introduce same-sex marriage could potentially damage our  reputation, positioning us as a regressive, as opposed to a progressive, jurisdiction.  

Q: The Anglican Church is the Island's established church. Is it right to introduce  same-sex marriage when it directly contradicts the teachings of that Church, and  the religious beliefs held by many Islanders?  

It  is  unquestionably  the  case  that  the  introduction  of  same-sex  marriage  will  be  difficult for people whose objections arise from their religious beliefs. Not all people  of faith object however.  

2 44 couples represent 20% of same-sex couples living in Jersey at the time of the 2011 census.

20% uptake of same-sex marriage is based on survey evidence from the Netherlands; obviously more or less than 20% of same-sex couples may choose to get married.

2. Form for same-sex marriage ceremonies

In developing recommendations, consideration has been given as to the form that the same-sex marriage ceremony should take, including whether it should be –

• civil union
• civil marriage ceremony only
• civil marriage and religious marriage ceremony.

2.2(a) Civil union

Civil union, also referred to as Union Civile, is common to many European countries[3]. It is a system whereby everyone has a civil marriage performed and solemnized by a government official (e.g. a registrar), as opposed to a religious official (e.g. a priest or vicar).

If Jersey were to introduce civil union, all couples, regardless of their gender or their beliefs, would have to have a civil marriage ceremony, although that ceremony could be followed by a religious or non-religious blessing. Moving to a system of civil union in Jersey would require –

• removing the existing right of opposite-sex couples to have a religious marriage ceremony
• removing the existing right of religious organisations and religious officials to conduct marriages
• changing, in part, the historical and long-held role of the Anglican Church[4] in relation to marriage.

In total, only 16% of respondents to the 2014 Equal Marriage Consultation supported the introduction of civil union, primarily because of concerns about removing the historic right of people to have a religious marriage ceremony.

2.2(b) Civil and religious marriage ceremonies

When asked if civil and religious, or just civil, marriage ceremonies should be available to same-sex couples, 56% of the  2014 Equal Marriage Consultation respondents opted for both civil and religious marriage. This echoes the UK position.

Many same-sex couples are people of faith and want a religious marriage, and some faith groups also want to be allowed to marry these couples. Hence there is little sense in developing a law which denies people the ability to have a religious marriage, providing that appropriate safeguards are in place to ensure religious organisations and their officials are not forced to do something which their faith or conscience prohibits.

Whilst the Anglican Church holds a special position in the Island, its teachings should not necessarily dictate our response to social or political matters. It would be wrong to determine a course of action solely on the basis that it does not concur with our established Church.

2.2(c)  Safeguards

In bringing forward same-sex religious and civil marriage, the States should oppose any attempt to undermine the position that different religions espouse with regard to same-sex  marriage.  Legislation  that  allows  for  same-sex  religious  marriage  must ensure that no religious organisation or religious official is compelled to marry same- sex couples. This will be achieved in the following way –

• The law will state that same-sex religious marriage will only be possible if –

- the religious organisation has opted-in to conduct same-sex marriages, and

- the religious official consents to solemnize same-sex marriage, and

- if the ceremony is in a place of worship, it must be registered for same-sex marriages (this means that those with legal responsibility for the building must consent).

• The law will explicitly state that no religious organisation or religious official can be compelled to opt-in to solemnizing same-sex marriage.
• Our Discrimination Law will be amended so that it explicitly states that it is not  unlawful  for  religious  organisations  or  religious  officials  to  refuse  to marry same-sex couples. (This will not extend to other people or service providers see Section 2.6 below on the conscience clause.)
• The existing legal duty of the Anglican Church to marry parishioners will not be extended to same-sex couples. (This duty only applies to the Anglican Church as the Island's official established church. It does not extend to other religious organisations.)
• Canon Law, which states that marriage is a union between a man and woman, will not be amended.

The safeguards above are based on the UK's "quadruple lock". The UK Government is confident that this amounts to a sufficient safeguard and that the "quadruple lock" could be defended if challenged on grounds of its compliance with the European Convention on Human Rights (see Note 2 below).

Note 2: Quadruple lock and the ECHR

Some  commentators  have  expressed  concern  that  the  European  Court  on  Human Rights  (ECHR)  might  overturn  the  quadruple  lock,  thereby  requiring  religious organisations and religious officials to solemnize same-sex marriages.

Whilst the ECHR does not require the introduction of same-sex marriage in any jurisdiction, it has stated that where it is introduced it must be considered as analogous to opposite-sex marriage for the purposes of anti-discrimination.

The  question therefore  arises as to  whether the system  of  "opt-ins"  for religious organisations and religious officials could be overturned on the grounds that it is discriminatory for an organisation to marry an opposite-sex couple but not a same-sex couple.

The UK Government is confident however that the ECHR will not take this position – a view which is supported by the UK's Equality and Human Rights Commission[5] and by Liberty[6].

The  Commission  clearly  stated  that  a  religious  official  cannot  be  penalised  for expressing opposition to same-sex marriage providing that opposition "accords with the  religious  doctrines  and  ethos  of  the  organisation  they  represent.  Religious organisations retain the right to maintain and enforce adherence to their religious tenets"[7].

The Commission's view is based on legal opinion[8] provided to them which sets out that: "It does not breach the rights of same sex couples to restrict their opportunities for  a  religious  marriage  ceremony  to  those  organisations  and  individual  office- holders who consent to such a ceremony. We consider it to be extremely unlikely that any  different  view  would  be  taken  by  the  courts,  including  the  ECtHR  when considering  the  provisions  of  the  European  Convention  on  Human  Rights ("ECHR");".

Liberty[9] hold the position that the system of opt-in will stand on the basis that any requirement to compel a religious organisation to conduct same-sex marriages would itself fall foul of human rights protections:

"The Article 9 protection afforded religious organisations is strong [and] would provide real safeguards to a religious organisation that did not wish to conduct same-sex marriages on doctrinal grounds."

"Indeed a requirement that a church or other religious organisation conduct same-sex marriages, contrary to their faith, would very likely be regarded as discriminatory Treating churches and religious organisations that have doctrinal objections to same-sex marriage in the same way as those that do not, is to fail to make a distinction between the two which will result in a discriminatory outcome."

Based on these expert views, it is entirely reasonable to assume that the quadruple lock is robust (although it is the case, as with any piece of legislation, that the matter will only be beyond doubt once a case has been determined by the ECtHR).

3. Conversion from civil partnerships

Some people, albeit not all, have entered into civil partnerships simply because the law has prevented them from getting married. At the point at which same-sex marriage is introduced, they may wish to convert their civil partnership into a marriage.

The law should allow for this, and should provide for conversion ceremonies where people want to celebrate their marriage with their family and friends. In doing so, it is important to recognise that this option is only intended to support people previously denied access to marriage; it is not intended to provide a facility for people who change their minds. This will therefore –

• only  include  people  who  entered  into  civil  partnerships  before  same-sex marriage was introduced
• not include allowing people to convert their marriages into a civil partnership.

4. Language

The  2014 Equal Marriage Consultation  (R.170/2014)  reflected some respondents' concerns about the devaluing of words such as "husband" and "wife" in favour of more gender-neutral language. This was often as a result of the changes seen in other jurisdictions since the introduction of same-sex marriage, for example the use of –

• Party A'  and  Party B'  instead  of  husband'  and  wife'  on  marriage certificates
• Progenitor A' and Progenitor B' instead of mother' and father' on birth certificates.

It is recognised however, that these are important words. They have huge cultural and emotional significance and are used by people to describe their relationship to each other. Same-sex marriage legislation does not need to drive out use of the words; husband' will still refer to married men and wife' can still refer to married woman.

5. Spousal veto

Many people who wish to change their gender (transition) or who are married to someone who wishes to change their gender do not want to end their marriage. They still love their spouse and for emotional, family and financial reasons want to remain married.

Whilst it has previously not been possible to change gender and remain married – as 2 people  of  the  same  gender  cannot  be  married –  the  introduction  of  same-sex marriage will allow for this to happen.

When same-sex marriage was introduced in England and Wales, the Government brought forward a provision known10 as the spousal veto. This means that someone

who is married can only apply for a gender recognition certificate – which is required to legally change their birth gender – if their husband or wife consents to the marriage continuing after the certificate has been issued. This effectively means the husband or wife can veto their spouse's change of gender.

10 Marriage (Same Sex Couples Act) 2013.

The spousal veto has been heavily criticised for a number of reasons, including –

• It effectively forces the non-transgender spouse, who wants to remain married, to endorse their partner's decision to change gender when they may not wish to. It is sometimes the case that the partner of a transgender person has accepted their partner's decision to change gender, but they are nevertheless uncomfortable with that decision and do not want to be put in a position whereby they feel obliged to endorse it.
• If the couple break up and lose contact, the transgender person could find themselves in a position whereby their spouse has withheld consent for the gender recognition certificate to be issued (i.e. they have exercised their spousal veto) but they cannot readily seek a divorce because of the lack of contact. This leaves the transgender person in an invidious position, as they are unable to realise their own wishes.
• It arguably violates the spirit of ECHR in that it places the defence of one person's rights (i.e. the right to remain married to a spouse whose gender remains the same as at the point of marriage) over the rights of another person to change their gender.

In Scotland, the spousal veto does not exist (i.e. the husband or wife cannot veto their spouse's change of gender)[10]. It is proposed that Jersey should follow the Scott ish model.

This will require changes to the Gender Recognition (Jersey) Law 2010 (the "Gender Recognition Law"), and potentially to the associated gender recognition approval process. That process currently requires that a person change their gender in accordance with the law of an approved jurisdiction and then apply to the Royal Court for legal recognition of the resulting gender recognition certificate. Obtaining a gender recognition certificate will typically require evidence from a registered medical practitioner that the applicant, amongst other things, has or has had gender dysphoria (or unhappiness with birth gender). The United Kingdom is an approved jurisdiction for the purposes of the Gender Recognition Law, and in practice Jersey residents are likely to seek treatment in the United Kingdom as there are no professionals qualified to make the required diagnosis in Jersey.

6. Conscience clause

A number of respondents to the Equal Marriage consultation stated that the protection of religious freedoms should be extended beyond religious organisations and religious officials to any organisation or service provider.

This is commonly called a  conscience clause and would exempt any provider of wedding services (hoteliers, registrars, photographers, etc.) from prosecution if they refused to provide services to same-sex couples. They could only do so on the grounds that same-sex marriage is against their religious beliefs, not because they object to the couples' sexual orientation (i.e. they hold homophobic views).

If a conscience clause were to be introduced, issues for consideration would include –

• Who would be exempt? A wedding involves a myriad of different service- providers  (e.g.  registrar,  hotelier,  waiter,  caterer,  florist,  photographer, dressmaker,  hairdresser,  chauffeur,  marquee  hire,  wedding  gift  shop, stationery printer, etc.). Should all be exempt? Or only those immediately involved in the ceremony?
• Would it apply to officials working for public organisations such as Parishes and the States? Could a Connétable refuse to allow a Parish Hall to be used for a wedding venue, even though the people being married live in that parish? If local  Parishioners  were  supportive  of  same-sex  marriage,  would  the Connétable 's conscience trump theirs? Could the Superintendent Registrar or one of their delegates refuse to marry a same-sex couple even though it is a civil, not a religious, ceremony?
• At what point would the exemption apply? Only at the point of marriage or at any point during that marriage (i.e. can a hotelier refuse to allow their hotel to be used as a venue for the wedding, or can they refuse any same-sex married couple a room at any point12)?
• How could it be determined that a service provider is exempt? In most cases it would  be  extremely  difficult  to  know  if  a  service  is  being  withheld  on religious grounds as opposed to homophobic grounds, and this may require evidence of religious beliefs to be presented to a Tribunal.

Whilst  it  is  theoretically  possible  to scope  an  exemption,  there  would  clearly  be difficulties in defining its scope, and public opinion about such an exemption is likely to be polarised. It is not clear how cases could realistically be determined without resorting to a form of "trial by faith", taking into account whether or not one person's right to freedom of belief is greater than another person's right to be treated in an equal manner.

Note 3: Conscience clause in other jurisdictions

Examples of conscience clauses exist in UK legislation, although not in relation to same-sex marriage. They are restricted to a number of highly emotive areas (for example: nurses do not have to participate in abortion treatment if they regard it to be against their moral, religious or ethical beliefs).

Attempts to introduce a clause relating to same-sex marriage into the Equality Acts in England & Wales and Scotland have failed however, on the grounds that it is contrary to the principle of equal treatment. (It is notable, however, that this view is not upheld by Lady Hale, Deputy President of the Supreme Court, who has publicly stated that the law should protect people's rights to refuse to do things that go against their belief, even if those beliefs clashed with equality laws).

12 Over the last few years there have been a number of cases of service-providers, who

disapprove of a customer's relationship, becoming embroiled in long-running litigation. This can have a very detrimental effect on all the individuals involved.

In Northern Ireland there has recently been a public consultation on a freedom of conscience clause. Whilst this consultation (which forms part of a private member's bill) has now closed, the findings have yet to be published. It is envisaged that these will be available prior to States Members being asked to adopt same-sex marriage legislation.

Note 4: Impact on system of taxation

The  introduction  of  same-sex  marriage  would  have  implications  for  our  existing systems of taxation in Jersey.

We do not currently have independent taxation for people who are married or in a civil partnership. Under the law, a married couple is jointly assessed for tax purposes. (This means a wife's income is treated as belonging to her husband and he is the taxpayer. The husband may be entitled to certain allowances because he is married, and may also be entitled to further reliefs depending on his wife's income position.)

When civil partnerships were introduced, the law was amended so that each partner could  be  recognised,  and  concept  of  civil  partner A'  and  civil  partner B'  was introduced. Any specific tax rules that applied to a wife' were then applied to civil partner B'.

The law allows civil partners to decide who is civil partner A' or B' for tax purposes (i.e. who they would like to be the lead person, in the couple, in relation to tax), but the law does not allow husbands and wives to make the equivalent decision. Under equality laws this is broadly acceptable because, whilst civil partners and spouses are treated differently, all couples in civil partners are treated the same and all married couples are treated the same.

Same-sex marriage will necessitate fundamental changes to this system. If 2 men or 2 women are married they cannot be allowed to choose who is the lead person for tax purposes, unless all married couples are allowed the same choice.

As a result, consideration will need to be given as to how to ensure parity. This could include –

• allowing all spouses and all civil partners to choose who is the lead person for tax purposes, (this could be a costly option from a Treasury perspective) or,
• introducing blanket rules for all (for example: the older spouse or partner, or the one with the highest income, is always lead person), (this could be a particularly complex administrative option) or,
• moving to a system of independent taxation. (this would require significant work because independent taxation cannot be achieved without some cost to the Treasury or to taxpayers or both).

If independent taxation were deemed to be the most appropriate option (subject to detailed forecasting about the impact on tax-take) there would need to be wholesale changes to our tax laws, systems for assessing tax and our IT infrastructure, none of which can be readily or quickly achieved.

In  bringing  forward  the  legislation  that  allows  for  changes  to  marriage,  full consideration will need to be given to both interim and long-term solutions with regard to tax.

7. Conclusion and recommendations

Recommendations

• States members are asked to agree in principle that the law should be amended to allow same-sex couples to get married in Jersey. This will –

• include  civil  marriage  and  religious  marriage  with  appropriate safeguards in place to protect the rights of religious organisations and officials who do not wish to conduct same-sex marriages

• include allowing couples currently in a civil partnership to convert that civil partnership into a marriage

• include retention of terms, such as husband and wife, mother and father

• not include a spousal veto.

In bringing forward that legislation, further consideration will need to be given to –

whether the Discrimination (Jersey) Law 2013 should be amended to allow for a consciousness clause, noting that there are some very real complexities associated with any such clause

how  premises,  facilitates  and  services  connected  to  churches  or religious organisations (for example: church halls) are to be treated in law

the requirement for both interim and long-term solutions with regard to the management of tax for all married couples and civil partners.

SECTION 3: PARENTAL RESPONSIBILITY

1. Introduction

A child's parents have legal rights, duties and responsibilities toward their child, including the right to make decisions about their care and upbringing; for example: where they live, whether the child can have medical treatment, or be adopted, or leave the country either on holiday or permanently.

Everyone who has parental responsibility must be involved in making these decisions.

2. Unmarried fathers

Under Jersey law, an unmarried father can be named on a child's birth certificate, but this does not automatically confer him with parental responsibility – a position which is out-of-step with UK law.

It is sometimes only at the point at which a cohabiting couple breaks up that the father realises the implications of not having parental responsibility and seeks to acquire it. He can do this either via a Court Order or with the mother's consent, which can be very challenging to do at a time of high emotion, and often serves only to highlight conflict.

Whilst  the  absence  of  parental  responsibility  does  not  exempt  the  father  from maintenance payments towards his children, it can create very real tensions around the father's right to have a voice in other decisions.

The law needs to be amended to ensure that fathers, named on birth certificates, are automatically conferred parental responsibility.

(Note: Parental responsibility will still not be automatically conferred on fathers who are not on the birth certificate. These fathers will continue to need the mother's consent or a Court order. This is an important safeguard as it will, for example, include circumstances such as a child being conceived through rape.)

3. Same-sex couples

In amending the law, consideration must be given to parental responsibility for same- sex couples who are either married or in a civil partnership. This could include, for example –

• Where a lesbian couple are married or in a civil partnership at the time at which one of them becomes pregnant. Both the birth-mother and the non-birth mother  should  be  allowed  to  be  named  on  the  birth  certificate,  therefore automatically conferring both with parental responsibility.
• Where a gay couple are married or in a civil partnership at the time at which a child is conceived using sperm from one of them, they should both be allowed to be named on the birth certificate and therefore automatically conferred parental responsibility.

In both cases this will only include where the child is conceived through artificial insemination, as opposed to through sexual intercourse.

In  addition,  issues  relating  to  parental  responsibility  must  also  be  considered  in relation to same-sex couples who are not married or in a civil partnership but who nevertheless choose to jointly raise children.

4. Conclusion and recommendations

[11]SECTION 4: DIVORCE AND DISSOLUTION

(NOTE: Throughout this section the term divorce has been used. This is intended to refer to both divorce and dissolution unless otherwise stated. This is simply for ease of reading.)

1. Introduction

Divorce is a fact of life13,14 Regardless of how much people, and society as a whole, invest in marriage and civil partnerships it is the case that relationships can break down. When they do it is an extremely stressful and traumatic process.

From a policy perspective, it is not in anyone's interest to force people to stay in unhappy relationships or to make the process of divorce or dissolution difficult, particularly when there are children involved. Nor is it in anyone's interest to undermine marriage and civil partnership by making it too easy to walk away.

The law can help us strike the right balance. According to the English Law Commission 1966[12], divorce law should aim to –

"... buttress, rather than undermine, the stability of marriage, and when, regrettably, a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.".

The introduction of same-sex marriage necessitates amendments to our existing law creating an opportunity to reflect on whether the law strikes the right balance between upholding the importance of marriage and minimising unnecessary conflict, particularly where that conflict only serves to further damage the couple and any children they may have.

For this reason, it is proposed a new system of divorce and dissolution is introduced in Jersey via a new fit-for-purpose Family Law16 17. It is proposed that this new system

focuses on –

• reconciliation; supporting couples who decide to try and reconcile their differences in order to remain married

• mediation; a couple use an independent and impartial person to help them discuss  and  agree  arrangements  in  the  event  they  have  been  unable  to reconcile.  Mediation  can  also  involve  a  process  known  as  early  neutral evaluation, whereby an independent and impartial person advises a couple of the types of arrangements, relating to children and finances, that the Court may make if required to do so. This is in order for the couple to try to discuss and agree their own arrangement prior to full mediation.

The  mediation  process  bring  spouses  together  in  order  to  try  and  jointly  find  a solution, as opposed to each person engaging their own separate lawyer who will only represent the interests of that person, or having to resort to the Courts.18

The proposed new system is not intended to make divorce easy. It will, instead, help diffuse some of the potential conflict, building in time for reflection and do away with "quick" divorce.

Note 5: Quick divorce

Our existing system of divorce in Jersey facilitates the quick divorce. Providing a couple have been married for at least 3 years, and that the grounds for divorce relate to fault (see section 5.3 below), it can take as little as 9 weeks to move from filing for divorce to being divorced. A period which allows no time for reflection, in a legal process that currently fails to encourage either reconciliation or mediation.

The proposed new system of divorce/dissolution will do away with quick divorce, by providing safeguards which support people to reflect on the viability of their marriage and on conflict minimisation.

Note 6: Mediation

In bringing forward requirements relating to mediation, consideration needs to be given to –

• appropriate safeguards and exemptions: for example in the event of domestic violence, or where divorce is urgently sought because one of the spouses has participated in serious criminal activity;
• human rights considerations: Under the ECHR, consideration must be given to ensuring that there are no disproportionate restrictions in relation to people's ability to access the Courts or get divorced (for example, a person could not be denied a divorce or suffer financial sanctions on the grounds that either they, or their spouse, have refused to participate in mediation or that they had failed to reach agreement via mediation).

In  England  and  Wales,  couples  are  therefore  only  required  to  attend  a mediation information and assessment meeting, they are not actually required participate  in  mediation.  Other  European  countries  employ  a  variety  of

18 In Sweden it is estimated that 90% of divorcing parents resolve issues relating to custody

and residency either on their own, or via mediation, with only 10% reverted in the Courts.

different incentives and sanctions and, in some, mediation is mandatory under prescribed  circumstances  (for  example,  in  many  Nordic  countries  and  in certain areas of Spain). What is critically important is that where mediation is mandatory, it does not impede access to the judicial system.

In America, where the ECHR does not apply, participation in mediation is a legal requirement in 13 States, and judges are provided discretion to order couples to enter mediation in 22 States.

2. Three year bar

In Jersey, couples must be married (or in a civil partnership) for a least 3 years before they can file for divorce or dissolution. It is only one year in England & Wales, and there is no time limit in Scotland or in Guernsey.

This can be 3 very long and unhappy years for people, who may well be living separate lives, but who are stuck in relationships that have irrevocably broken down[13].

Using the law to force people to remain in a bad relationship does nothing to uphold the  institution  of  marriage,  support  reconciliation  or  minimise  the  distress  to  the couple and any children they may have.

It has been argued that the 3 year bar is a safeguard against irresponsible or hasty marriages. There is no evidence to support this. Indeed it is not clear if a person embarking on an irresponsible marriage would have knowledge of the bar and, even if they did, whether it would act as any form of deterrent.

The  3 year  bar  does  not  support  marriage;  it  only  acts  to  punish  people  whose relationship has broken down.

3. Grounds for divorce and dissolution 4.3(a)  Background

In Jersey, a divorce or dissolution can be granted on grounds relating to "fault" or grounds relating to a period of separation. Jersey is one of only a few jurisdictions[14] that have fault-based grounds for divorce, as opposed to no-fault divorce, or broader- based grounds such as irretrievable breakdown.

The grounds in Jersey are currently –

4.3(b)  Grounds based on fault

Fault-based divorce can be a major contributor to conflict, as one partner is required to prove the other is at fault.

In truth, however, it cannot be assumed that the "innocent party" did not substantially or almost wholly contribute to the marriage breakdown. They are merely the person who filed for divorce and cited the fault. And, where fault is cited by one partner, the other  rarely  defends  their  self  even  if  the  accusations  are  unfair. This is  usually because  of  expense  incurred  (i.e.  the  legal  fees),  and  also  because  there  are  no financial benefits to so doing. Contrary to common assumptions, the Courts do not award the innocent' party any greater proportion of assets. As a result, contested

divorces are a thing of the past. There have been none in Jersey for approximately 20 years.

Given that fault-based divorce provides no financial benefit and can be grossly unfair, it is reasonable to question whether it should be retained in its current form. Most importantly,  fault-based  divorce  does  nothing  to  support  forgiveness  and  the development of cordial relations – which are critical if the couple have children and are to successfully co-parent in future.

In bringing forward a new system of divorce and dissolution, consideration must be given as to whether our existing fault-based grounds should be retained, or whether a less adversarial approach should be taken.

In so doing, it is important to recognise that many people believe that adultery should remain as a grounds for divorce (see Note 7 below) and should also potentially be extended  to  civil  partnerships  (which  would  require  a  new  definition),  because adultery speaks to sexual fidelity, and sexual fidelity is seen as a central commitment of marriage and civil partnership.

Note 7: Adultery

The 2014 Equal Marriage Consultation (August 2014) did not directly explore issues about the introduction of no-fault divorce, but it did raise questions about adultery as a ground  for divorce  and  dissolution,  prompted  by  consideration  of the differences between  same-sex  and  opposite-sex  marriage  in  the  UK.  The  questions  included whether –

• the  existing  differences  in  grounds  for  divorce  and  dissolution  should  be removed?
• adultery should be introduced as a ground for dissolution or removed as a ground for divorce?
• the  definition  of  adultery  should  be  amended  so  that  it  applies  to  both opposite-sex and same-sex relations[15]?

65% of people who responded to the consultation stated that there should be no differences between the grounds for divorce and the grounds for dissolution. And, of that 65%, only 11% felt that parity should be achieved by removing adultery as a ground for divorce, i.e. the majority believe that spouses, and in some cases civil partners, should have the right to cite adultery. The key reason being that adultery speaks to sexual fidelity.

A small number of respondents felt adultery should be removed as a ground for divorce, arguing that –

• ault-based grounds only perpetuate cycles of blame, compounding the pain of divorce[16]
• adultery is so limited a definition that it is of little value. It does not cover sex between people of the same gender; many physical and sexual acts, acts of emotional betrayal.

4.3(c)  Grounds based on period of separation

The periods of separation in relation to divorce are currently one year where both parties consent, or 2 years without consent23. These must, however, be continuous

periods, which mean that if the couple want to spend a single night together, the clock needs to start again. This does nothing to support couples who want to see if they can reconcile their differences. Indeed, it actually deters attempts at reconciliation which cannot be right.

If periods of separation are required, these should not be continuous. There needs to be an ability to stop and restart the clock.

4. Grounds for annulment

Divorce or dissolution are declarations that a marriage or civil partnership has ended. Annulment is a declaration that a marriage or civil partnership never existed.

Jersey law allows for annulment at any time after the wedding or civil partnership ceremony, whereas for divorce or dissolution spouses or civil partners currently have to wait at least 3 years. An annulment will only be granted if the marriage or civil partnership –

1. was not valid in the first place (e.g. the spouses/partners were under 16 years, close family relatives or in a bigamous relationship) or,
2. it was defective' for one, or more, of the reasons set out below. It is notable that there are differences between marriage and civil partnerships, with a far greater emphasis on sexual activity in relation to marriage. It is arguable that this  emphasis  is  seemingly  redundant  in an  era  when  people  often  live together, or at least have sex together, before marriage/civil partnership.

In amending the law to accommodate same-sex marriage, the grounds for annulment, like the grounds for divorce and dissolution should, as far as is possible and allowing for biological differences –

• be the same for same-sex and opposite-sex couples
• be up-to-date to reflect the fact that there has been a notable shift in attitudes towards sexual relations.

23 These periods of separation are lower than England & Wales which currently stand at

2 years and 5 years.

5. Minimising conflict 4.5(a)  Background

As set out in the 2014 Equal Marriage Consultation (R.170/2014), it is important to minimise conflict in divorce and dissolution, not just because of the effect it has on adults, but also on any children that they may have. There is a body of research evidence which clearly shows that conflict between parents has a detrimental effect on children's outcomes, increasing the risk of anxiety, depression, aggression and anti- social behaviour[17]. It is therefore essential that we look to reduce harm.

When a couple is breaking up, much of the conflict relates to –

• their children (for example, access or where they will live)
• financial arrangements, division of assets, etc.

There are potential benefits to be gained from providing some clarity about these matters in the law.

4.5(b)  Children

Jersey law currently states that in divorce, as in all matters relating to children, the welfare of the child is paramount. This is the guiding principle that should underpin all arrangements that divorcing spouses make in relation to their children.

It is extremely difficult to be prescriptive about arrangements relating to children. All children have different needs, and those needs change over time – they do not remain static. Their parents' circumstances also change (re-marriage; new children; moving off-Island). Any arrangements prescribed at the point of divorce may well become redundant or contrary to child's welfare within a short space of time. The Courts therefore require flexibility to respond to each individual set of circumstances.

That does not preclude, however, more information being provided in an easily accessible format to support the mediation process. If parents know, upfront, the types of arrangements that are likely to be considered, it may help them make more informed choices.

Also see Section 4: Parental responsibility 4.5(c) Money and assets

The law should not seek to be prescriptive about financial matters or set formulas', as the Courts must retain the right to make judgements on a case-by-case basis. The law can, however, article broad principles. Doing so will support mediation and neutral evaluation processes, plus provide more clarity to couples and their legal advisors.

In developing the proposed new Family Law, consideration will be given as to whether the following presumptions, or others, should be established, subject to the discretion of the Court –

• assets will be divided equally on divorce
• pensions will be shared equally on divorce
• pre-acquired assets, inheritances and gifts will stay separate once needs have been met (for example; if a husband or wife owned a house prior to the marriage or inherited a house during the course of that marriage, this house should not be divided equally on divorce, providing there are other sufficient assets to meet the other spouse's needs and the children's needs. If there are not sufficient assets, the house should form part of the assets to be divided

equally).

4.5(d) Pre-marital agreements (also known as prenuptial agreements)

In addition, it is proposed that consideration should be given to making pre-marital agreements legally binding in event of divorce. Prenuptial agreements are often viewed with a great deal of scepticism, they can be seen as coercive and unfair, particularly to the spouse with less assets. Many also regard them as undermining the institution of marriage; how can you make a commitment to marriage if you are making divorce arrangements upfront?

Whilst it is understood that many people are uncomfortable with such agreements, they exist, and they can be of real value where there is an asset which needs to be protected for specific purposes; for example where there are children from a previous relationship.

For this reason it is proposed that there is a legal presumption that they stand, subject to the following safeguards –

• neither spouse was coerced or put undue pressure to sign the agreement
• the agreement was signed at least 6 weeks before the marriage (i.e. there was sufficient time to reflect between the signing of the agreement and the marriage)
• both spouses received independent legal advice before signing
• both spouses fully disclosed their assets prior to signing
• enforcing the agreement would not create financial hardship for either spouse or their children.

6. Conclusions and recommendations

It is proposed that an entirely new system of divorce and dissolution is introduced in Jersey via a proposed new Family Law.

That system should focus on reconciliation (supporting and encouraging couples to consider whether they should stay together) and on mediation (supporting couples to overcome unnecessary conflict).

This will include a legal requirement to access and use mediation services subject to appropriate safeguards and human rights considerations.

Subject  to  further  consultation,  it  is  envisaged  that  the  proposed  new  system  of divorce/dissolution may include –

• removing  the  3 year  bar:  couples  should  be  able  to  file  for  divorce  or dissolution at any point
• couples being able to jointly file a statement stating that they are seeking divorce/dissolution,  removing  the  need  for  one  to  instigate  proceedings against the other where both recognise that their relationship has irretrievably broken down (this will not preclude one spouse/partner initiating proceedings where the other does not agree)
• greater access to high quality reconciliation and mediation services, including information  on  parenting  plans,  legal  principles  relating  to  children  and finances, etc.
• appropriate incentives or powers in law to support and encourage couples to participate in mediation processes prior to any matters being brought before the Court (this would be subject to appropriate safeguarding, for example in the event of domestic abuse)
• between filing for divorce/dissolution and it being granted, the couple will not need to live separately; they can continue to live together or just spend time together, as this will potentially help facilitate reconciliation
• updating grounds relating to the annulment of marriage
• presumptions relating to the management and division of assets at the point of divorce
• a presumption that pre-marital agreements are binding unless a safeguard is breached.

Further consideration will also be given as to whether fault-based divorce should be retained, revised to include limited fault-based grounds (e.g. adultery), or abolished. If the grounds of adultery for divorce is to be retained –

• the requirement to name the co-respondent will be removed (i.e. the person with whom the spouse committed adultery) and,
• consideration will be given to potentially seeking to create a new definition of sexual fidelity, which is equivalent to the existing definition of adultery, but includes both same-sex and opposite-sex physical relations.

SECTION 5: CIVIL PARTNERSHIPS

1. Background

The introduction of same-sex marriage creates a conundrum about the future status of civil partnerships.

The consultation paper (August 2014) stated that consideration would not be given to abolishing  civil  partnerships.  That  position  was  later  revised  in  the  2014  Equal Marriage  Consultation  (R.170/2014)  which  made  a  commitment  to  review  civil partnership status, as it was considered "desirable to avoid creating a 2nd tier of marriage".

In framing a recommendation about the future of civil partnerships, a number of options have been considered –

• should civil partnerships be abolished altogether when same-sex marriage is introduced?
• should civil partnerships be closed to new couples but retained for existing civil partners? If so, what are the implications vis-à-vis the status of UK civil partners[18]?
• if civil partnerships are retained, should they be extended to opposite-sex couples?
• should civil partnership legislation simply be left unchanged until more is known  about  the  demand  for  them  once  same-sex  marriage  has  been introduced?

Note 8: Status of civil partnerships in the UK

England & Wales: the Government undertook a public consultation about the future of civil partnerships during 2014. Over 10,000 responses were received, of which –

• less than a third of respondents supported the abolition of civil partnership
• the majority were against closing civil partnership to new couples
• over three-quarters were against opening up civil partnership to opposite-sex couples.

Several  important  organisations  thought  it  too  soon  to  make  changes  to  civil partnership, whereas others put forward the case for opening up civil partnerships to opposite-sex couples.

Given this lack of consensus from key organisations and the lack of data about the uptake  of  Civil  Partnerships  since  the  introduction  of  same-sex  marriage[19],  the Government in England & Wales is not proposing to make any changes at this stage.

Scotland: the Scott ish Government is to consult later in 2015 on the future of civil partnerships in Scotland. In the meantime, they have not made any changes to existing civil partnership legislation.

The  decision  to  retain  civil  partnership  legislation,  as  opposed  to  either abolishing it or extending to opposite-sex couples is subject to challenge. In February 2015, the High Court gave permission for a legal challenge, that is aimed at extending civil partnerships to opposite-sex couples in the UK, to proceed.

2. Abolishing civil partnerships

It is proposed that when same-sex marriage is introduced in Jersey, couples currently in a civil partnership will be able to choose to convert that civil partnership to a marriage. Whilst some will choose to do so, it cannot be presumed that all will.

Abolishing civil partnerships altogether would significantly harm couples currently in a civil partnership who do not want to convert their partnership into marriage. It is unfair to do so and has potential human rights implications.

3. Closing civil partnerships to new couples but retaining for existing civil partners

5.3(a)  Matters for consideration

Whilst existing civil partnerships cannot be abolished, the law could be amended to prevent people entering into new civil partnerships in Jersey. Doing so would go some way to removing a legal framework which is seen by some as a second-rate form of marriage.

There are, however, legitimate reasons for keeping civil partnerships, including –

• Civil partnerships provide a social and legal framework that stops short of marriage, but which supports couples to articulate their commitment to each other. (It is clear from the 2014 Equal Marriage consultation that most people perceive civil partnerships and marriage to be different. If they were perceived as being the same, there would be no need to introduce same-sex marriage.)
• Civil partnerships are seen as a viable secular alternative to marriage. Whilst civil  marriage,  as  opposed  to  religious  marriage,  is  free  from  religious elements, it is still marriage and carries with it traditional associations that some are uncomfortable with.
• If civil partnerships are retained, those who believe that marriage is a union between man and a woman, and therefore do not want to get married, can still access a social and legal framework that recognises their relationship.

5.3(b)  Implications for civil partners from UK and other jurisdictions

The UK government has decided to keep civil partnerships for the time being (see Note 8). That decision, and the inevitable fact that civil partners living in the UK may wish to relocate to Jersey at some point in the future, has implications for Jersey due to a legal principle known as comity.

Under comity – which is, in effect, legal reciprocity – different jurisdictions recognise the validity and effect of each other's executive legislative and judicial acts. For example,  if  a  couple  get  married  in  Sweden  and  then  move  to  Jersey,  Jersey automatically recognises that couple as married. They do not need to marry again under Jersey law. Comity also applies to civil partnerships. If a UK couple have a civil partnership, their status as civil partners is recognised in Jersey.

If, after a given date, no new civil partnerships could be formed in Jersey, there would be implications for couples from other jurisdictions as their civil partnership status which is legally recognised in the country where it is entered into, could not be recognised in Jersey. This would mean their relationship would have no status OR it would have to be recognised as equivalent to marriage.

This is problematic as illustrated in the following scenarios. 5.3(c)  Scenarios

Scenario 1: assume that 31st December 2017 is a cut-off date and that from that point –

• same-sex couples can get married in Jersey
• same-sex couples can no longer form civil partnerships in Jersey, but still can in the UK
• no civil partnerships formed after the cut-off will be recognised in Jersey regardless of where they were formed.

Scenario 2: this is the same as Scenario 1, except that civil partnerships formed in the UK after the cut-off date will be recognised in Jersey (there will however be no ability to form new civil partnerships in Jersey).