Family Law – Divorce - Mourant Ozannes

BRIEFING Family Law – Divorce

JULY 2010 1. Basic requirements the presentation of the Petition
(desertion).
For more briefings visit All divorce proceedings in Guernsey are dealt
mourantozannes.com with in the Royal Court. iv. The parties to the marriage have lived
This briefing is only apart for a continuous period of at least
intended to give a Divorce proceedings can be issued in two years immediately preceding the
summary and general Guernsey if either party to the marriage: presentation of the Petition and the
overview of the subject Respondent consents to a decree being
matter. It is not intended a. is domiciled in the Bailiwick of Guernsey granted (two years separation with
to be comprehensive and on the date the proceedings are consent).
does not constitute, and commenced; or
should not be taken to be, v. The parties to the marriage have lived
legal advice. If you would b. is habitually resident in the Bailiwick for apart for a continuous period of at least
like legal advice or further at least one year ending with the date five years immediately preceding the
information on any issue the Petition is filed at Court. Habitual presentation of the Petition (five years
raised by this briefing, residence has a technical definition but separation).
please contact one of your usually means ordinarily resident.
usual Mourant Ozannes 3. The documents
contacts. It does not matter where in the world you
were married as long as you were validly The basic divorce documents are as follows
Contact: married in accordance with local law and you (draft copies are attached to the bottom of
Penny Grainge can produce the original marriage certificate this release):
Senior Associate, Guernsey or a certified copy.
For contact details, a. Divorce Petition
please see the end of this If the marriage certificate is in a foreign
briefing. language then a translation will be required. b. Statement of Arrangements Form

mourantozannes.com Unlike the UK, there is no minimum period c. Statement of Reconciliation
that the parties have to be married before a
Petition can be issued. d. Affidavit to confirm contents of Petition

The spouse who files the Petition is known e. Notice of Proceedings – Respondent
as the Petitioner. The other spouse is the
Respondent. f. Notice of Proceedings – Co-Respondent
(adultery only)
2. Grounds for divorce
g. Memorandum of Appearance
There is one ground for divorce namely
irretrievable breakdown of marriage. This has h. Adultery Affidavit (adultery Petitions only)
to be proved in one of five ways namely:
i. Consent Form
i. The Respondent has committed adultery
and the Petitioner finds it intolerable to j. Form 1 Application for Provisional Order
live with the Respondent (adultery).
k. Form 2 Affidavit in support of Provisional
ii. The Respondent has behaved in such a Order
way that the Petitioner cannot reasonably
be expected to live with the Respondent l. Final Order Application
(unreasonable behaviour).
4. The procedure - Undefended divorce
iii. The Respondent has deserted the
Petitioner for a continuous period of at The divorce process itself takes about 3½
least two years immediately preceding months from beginning to end assuming
full co-operation from the other party. No
attendance at Court is required. The only
hearing takes place at the Provisional Order
stage. This is dealt with by the Petitioner's
Advocate.

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BRIEFING Guide to a simple undefended divorce

1 Divorce Petition is drafted by the Petitioner's Advocate. Petitioner swears on oath that the Petition is true and

signs the arrangements for the children form (if relevant). The Petitioner files at the Greffe the following:
i. Original Petition
ii. Original Statement of Arrangements form
iii. Affidavit of Petitioner
iv. Reconciliation certificate
v. Original marriage certificate
The Petitioner serves on the Respondent:
i. Copy divorce Petition
ii. Copy of Statement of Arrangements for Children
iii. Notice of Petition
iv. Acknowledgement of Service
v. Memorandum of Appearance in duplicate
vi. Consent Form
vii. Draft Adultery Affidavit
The Petitioner serves on Co-Respondent (Adultery Petitions only):
i. Copy divorce Petition
ii. Acknowledgement of Service
iii. Notice of Proceedings
iv. Memorandum of Appearance in duplicate

2 Respondent within 14 days returns to Petitioner's Advocate:

i. Acknowledgement of Service
ii. Memorandum of Appearance
iii. Consent Form (two years separation and consent only)
iv. Adultery affidavit sworn before a notary public (adultery Petitions only)
In adultery cases, the Co-Respondent sends the Acknowledgment of Service to the Petitioner's Advocate within
14 days.

3 After 60 days, the Petitioner applies to the Court for a Provisional Order using Form 1 and swearing affidavit in

support (Form 2).

4 Provisional Order Application listed before the Royal Court. A brief hearing takes place at which the Court

considers the divorce papers and if satisfied grants a Provisional Order of divorce.
If relevant the Court will certify that the arrangements for the minor children are satisfactory.

5 Final Order granted after 32 days on application.

Notes: d. Special arrangements for service
are sometimes required when the
a. Invariably, the Petitioner instructs an Respondent resides out of the Bailiwick.
Advocate to prepare the divorce and to
administer the divorce process. e. In the event that a Final Order is not
granted within 12 months of filing of the
b. The divorce process can be stopped at Petition then the Petition will be struck
any time up until the Final Order has been out automatically by the Court unless a
granted. specific application is made to prevent
this.
c. The divorce papers are initially sent out
by post but if the papers are not returned,
the Court will effect personal service of
the divorce papers for a small fee.

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BRIEFING 5. Petition for decree of judicial of religious objections to petitioning for
separation divorce.

It is possible to file a Petition seeking a decree A Petition for a decree of Judicial Separation
of Judicial Separation. A decree of Judicial is not to be confused with an application for
Separation relieves the parties from the duty Judicial Separation by consent which is a very
to cohabit but is not the same as a divorce different animal.
in that you are still lawfully married at the
conclusion of the proceedings. 6. The procedure - Defended divorce

The grounds for a Judicial Separation are the Thankfully, defended divorces are rare in
same as divorce and the documentation is also practice.
the same save that the prayer in the Petition
is amended to seek a decree of Judicial In the event that a divorce Petition is defended
Separation rather than dissolution of marriage. then it is for the Petitioner to prove that the
marriage has broken down irretrievably on the
The procedure is similar to divorce save that at grounds set out in his Petition.
the equivalent of the Provisional Order stage,
the Court simply grants a decree of Judicial The most commonly defended Petition is for
Separation and there are no Provisional or unreasonable behaviour. Behaviour Petitions
Final Orders. should be drafted very carefully. Obviously,
all of the allegations must be true and the
Petitions for Judicial Separation are relatively Petitioner will confirm this on oath in his
rare in practice and are usually reserved for accompanying affidavit.
individuals who have religious objections to
obtaining a divorce. For some, the temptation is to list all
allegations going back many years. However,
Applications for financial provision (see our in recent years the Courts have sought to
Money and Property Guide) can be issued discourage this practice. The Law Society
once a Petition of Judicial Separation has been of England and Wales has issued a Protocol
filed. which states that allegations of unreasonable
behaviour should be kept to a minimum and if
Petitions for a decree of Judicial Separation are possible agreed with the other side before the
sometimes issued in preference to a divorce Petition is issued. This can be beneficial so as
Petition by a party seeking to preserve their to avoid conflict.
rights under their spouse's pension or because

Guide to a defended divorce

1 Divorce papers filed at Greffe and served as for undefended divorce (see above).

2 Respondent within 14 days after receipt files at the Greffe a Memorandum of Appearance giving notice of

intention to defend and serves Form 13 and copy of the Memorandum on the Petitioner's Advocate.

3 Respondent within 14 days of filing and serving Memorandum files at Greffe and serves on Petitioner his Answer

to the Petition.

4 Petitioner lists matter for trial.

5 Trial. The Petitioner is required to prove that the marriage has broken down irretrievably. The Court grants or

refuses the Petition and Final Order granted if appropriate.

mourantozannes.com BVI | CAYMAN ISLANDS | GUERNSEY | HONG KONG | JERSEY | LONDON JULY 2010

BRIEFING The Answer referred to at Stage 3 is drafted by
the Respondent's Advocate and responds to
the Petition on a paragraph by paragraph basis
stating which paragraphs of the Petition are
accepted and which are not.

Contact:

Penny Grainge, Senior Associate, Guernsey
+44 1481 739 309
[email protected]

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