A Trial Separation?

With an eye to anticipated and overdue reform of Jersey divorce law, this article briefly considers how Jersey might cast a glance back at customary law to select the best of our unique legal heritage when legislating for the modern Jersey marriage, civil partnership and relationship breakdown, rather than blithely following English and Welsh law. Members of the local bar will be familiar with the unique genesis and development of Jersey law and the catholic influences on our legal heritage; in contract disputes, for example, the Royal Court’s judgments regularly consider the competing influences of customary, modern French and English law on developing Jersey law. Public commercial policy and the interests of Jersey plc may also be
influential in how this area of law develops. In some areas, though, such as property law and succession, there is a good argument to be made for the primacy of Jersey’s customary law as a source. An equivalent contention could be made for family law. There is much to be said for the argument that family law is principally the concern of the people living in our Island and that Jersey, with a keen eye on its custom, should forge its own direction and stray into foreign law only when international cross border jurisdictional issues arise in, for example, the field of child abduction. In practice, little heed is paid to how Jersey family law has developed; we appear to have adopted for our legislation a puny reflection of the varied and colourful law that has made London the divorce capital of the world, ignoring our unique Jersey customary heritage in this field. Jersey legislation has, it might be argued, stagnated, becoming a poor cousin to English divorce law, a cousin to whom it bears, in fact, little relation. In anticipation of the long-savoured prospect of amendments to the Matrimonial Causes (Jersey) Law 1949 (“the Law”), which are expected to introduce wholesale reform of this outdated legislation,