Family Asset Protection Law Over Borders Comparative Guide 2023

• Published date: 01 June 2023
• Subject Matter: Corporate/Commercial Law, Family and Matrimonial, Corporate and Company Law, Family Law, Divorce, Trusts, Wills/ Intestacy/ Estate Planning
• Law Firm: Baker & Partners
• Author: Mr Simon Thomas and James Sheedy

INTRODUCTION

The Bailiwick of Jersey is one of the three Crown Dependencies of the British Crown that surround the United Kingdom. It is located in the English Channel, sixteen miles west of the French Normandy coast. It is not part of the United Kingdom's territory and has never been absorbed into the common law legal system of England and Wales, having been a self-governing territory for over 800 years, enjoying virtual total autonomy over its own taxation, legal system and domestic affairs.

Jersey's legal system has its roots in Norman customary law but has also been influenced in varying degrees over the centuries by English law and French law. Jersey's law of trusts is governed principally by the Trusts (Jersey) Law 1984, as amended. Its matrimonial law is governed by the Matrimonial Causes (Jersey) Law 1949. In the absence of local legal authority or legislative provision, Jersey will often look to judgments of English and Commonwealth courts as being persuasive (Re Malabry Invs Ltd 1982 JJ 117). Local legislation is enacted by Jersey's parliament, the States Assembly. Assent to local statutory law is effected through the Privy Council in London.

Jersey is not a part of European Union and is not subject to EU law. Therefore, EU Regulations concerning jurisdiction and the recognition and enforcement of judgments in civil or matrimonial matters.

The family court (the Family Division of the Royal Court of Jersey) has jurisdiction in relation to divorce, nullity and judicial separation (Matrimonial Causes (Jersey) Law 1949, Articles 3 and 6) where:

• the parties are domiciled in Jersey when proceedings are commenced;
• either of the parties was habitually resident in Jersey for the year immediately preceding the date proceedings are started.

The same jurisdiction rules apply for both mixed and same sex spouses and civil partners.

Financial remedies are generally applied for within divorce proceedings. Claims can be made for:

• Periodical payments (for children and spouses).
• Lump sum payments (with security as necessary).
• Property transfers.
• Orders for sale of property.
• Variation of nuptial settlements.
• Interim orders.

The Royal Court does not currently have jurisdiction to make a pension sharing order in matrimonial proceedings although, in practice, that is often compensated for by making provision from elsewhere in the matrimonial 'pot'.

1. DIVORCE AND TRUSTS

Jersey is one of the foremost offshore jurisdictions in the world for private wealth structuring...