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22 May 2020

Is Jersey part of ‘the British Islands’? Claims after overseas divorces

Some 35 years ago, legislation was introduced to enable people to bring financial claims in England following an ‘overseas divorce’ provided certain requirements were met and permission of the court was obtained. Recent years have seen increasing numbers of such claims, no doubt as a result of the increasing number of international families with the necessary connections to this jurisdiction.

What the legislation provides is that where a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in an overseas country and the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales, then either party to the marriage may apply to the English court for financial relief.

A key ingredient is therefore that there must have been a divorce, annulment or legal separation in an ‘overseas country’.

Towards the end of 2019, Mr Justice Cohen was invited to decide a case (MWH v GSH) where it was argued that the divorce obtained in Jersey qualified as an ‘overseas divorce’.

In this particular case, the parties had had a long marriage, mainly spent in England. In 2017 the husband had left the former matrimonial home and started to live with his new partner in Jersey. Shortly afterwards he began divorce proceedings in Jersey. The wife claimed that he did this because Jersey does not have the concept of pension sharing in the same way as England does.

The parties subsequently negotiated a financial settlement in Jersey which the wife was apparently always unhappy with. In 2019 a financial consent order was made and the divorce was finalised in April 2019. Almost immediately afterwards, the wife applied under the English legislation mentioned above and she was given the necessary permission to apply for a pension sharing order.

The question therefore arose of whether the Jersey divorce was an ‘overseas divorce’. The interpretation section of the relevant act makes it clear that an ‘overseas country’ means ‘a country outside the British Islands’ and, moreover, since 1889, ‘British Islands’ includes the bailiwick of Jersey. One would have thought that that would have been an end to matters but the wife’s advocate raised a number of ingenious arguments to try and get round this. In particular she made the point that the 1984 legislation had been introduced before pension sharing became possible in England. As that power had not been replicated in Jersey divorce law it gave rise to a serious injustice.

The wife’s lawyer tried to rely on a rule of interpretation called the ‘mischief rule of interpretation’, ie the court should interpret a statute to address the mischief it was designed to deal with, in this case the alleviation of a serious injustice following an overseas divorce. She claimed there was a serious injustice as the husband’s pension income was two and a half times the wife’s income and submitted that the court could correct this mischief by interpreting the geographical scope of the statute flexibly. However, Cohen J was not persuaded by this argument. He considered that, rather than being asked to construe the statute, he was being asked to ride roughshod over it. He also felt that there was no ambiguity in the legislation that needed to be interpreted.

The wife was therefore unsuccessful in her claim to secure a pension sharing order on the basis that the English legislation on overseas divorces applied to her, and the sting in the tail was that she was ordered to pay the husband’s costs since she should have known from the outset (or shortly afterwards) that she had a very weak case.

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