Ending relationships and housing
Jersey Law does not have common law marriages and any couple who stop living together are viewed in the same way as any two people deciding not to live together such as friends.
What housing qualifications each person has will affect what sort of accommodation they are able to live in and where there are children involved, this can be a real problem for a parent without housing qualifications.
The person who signed the tenancy agreement has the right to remain in the accommodation if it is in their sole name and can ask the other person to leave. If the other person refused to leave, the tenant would be free to move their belongings out and might ask for help from the Police, especially if there was a history of violence.
If the person who has signed the lease decides to leave the accommodation, the partner has no right to stay and the landlord would be able ask them to vacate.
If the couple are joint tenants, they have both signed the rental agreement and they both have equal rights to stay in the home. The general rule is that neither partner can ask the other one to leave unless there has been violence. Any permanent solution has to be by agreement with all parties, including the landlord.
If there has been violence towards one of the parties, they may apply to the court for an injunction requiring the violent partner to stay away from the home. See injunctions.
The landlord should be notified in writing of the proposed departure of one of the tenants. The landlord should be asked to issue a new sole lease.
Affordable Housing providers in Jersey will consider changing any tenancy on a case by case basis, taking into account the clients’ needs as well as the criteria set out by The Affordable Housing Gateway.
Andium Homes decide on a case by case basis whether to transfer a lease to the remaining partner. Other affordable housing providers have their own rules.
If one person is the sole owner, that person has an absolute right to remain in the home and the other partner must leave if the owner so wishes.
If both partners are joint owners, each have equal rights to stay provided they have Entitled Status in their own right. If they own the property as joint owners, it can only be sold if both parties are in agreement. A sale can be forced by one party so it would be important to seek legal advice. See also Joint Ownership of Property.
Owners in common
One party may transfer ownership of their share of the property without the other party’s agreement.
As licenses only apply to the individual licenced person, the partner of the licenced person who cohabits is in a very vulnerable position if the relationship fails unless they have Entitled Status in their own right. Legally, the partner shares the accommodation as a lodger of the licenced person and has no right to occupy the accommodation if the licenced person is no longer resident. If the partner chooses or is requested to leave, they will have to look for alternative accommodation depending on their housing status.
Ending a Marriage
General points to consider
If there has been violence, the client may be allowed to remain in the home and the violent spouse excluded to provide immediate protection.
There is no equivalent in Jersey of the UK Matrimonial Homes Act 1983, which gives a married couple equal rights to live in the matrimonial home.
Where there has been violence or other unreasonable behaviour, the Court has powers to require the offending spouse to leave the matrimonial home through the Separation and Maintenance Orders (Jersey) Law 1953 as amended.
If the marriage has ended, the client may apply for divorce or judicial separation. When granting either of these, the court also has to make decisions about property, money and children. The court has to consider the implications of any decisions and the needs of any children of the marriage. The court also must take into account all the circumstances of the case including, for example, the income and needs of both partners and the contribution they have made to the welfare of the family. The court cannot decide what should happen to the matrimonial home in isolation. The court must consider who is likely to have residence of any children, the financial position and housing alternatives for each partner.
The type of order the court will make depends on whether the home is rented or owned. If the home is rented, decisions about who lives there will have less effect on the other financial arrangements that are made. A home that is owned is much more central to the arrangements of the divorce.
Staying in the home
A partner may wish to end the marriage but remain in the home. The non-Entitled spouse of an Entitled person can join in the purchase of a freehold property. In the event that the marriage should subsequently break down, ownership of the property can be transferred into the sole name of the non-Entitled spouse in some circumstances with the permission of the Population Office.
If the couple divorce when ownership of the property was still in joint names, it would not be possible to transfer ownership as outlined above.
In the short term, the only way to resolve decisions about who should stay in the home is for the couple to discuss the situation and come to a reasonable agreement, but this may not be simple. A mediation organisation such as Family Mediation Jersey may be able to conciliate with any problems and the partners’ legal representatives may negotiate a solution where a couple can’t communicate.
Where there has been violence, adultery or cruelty and a person cannot persuade their spouse to leave, they can apply to the Court.
Owner occupier married couples
In Jersey, there is no automatic right for the sole owner of a property to remain in it after the break up of a marriage. The circumstances of the married couple would be taken into account in any settlement for separation or divorce, including whether there are any children, length of marriage and who is making financial contributions to the family. Where there are children, it is normal for the children and a carer to remain in the family home at least until interim arrangements have been made.
The spouse staying in the home should continue paying the mortgage. They can apply to the Court for an interim order whilst divorce proceedings are underway to provide for the payment of the mortgage and rates etc. to keep the family in the home.
If one spouse is a joint or sole owner of the home, their right of occupation is secure. If the other spouse is the sole owner, they may have rights to live in the home during the marriage and as part of divorce proceedings, may apply for a transfer of the property into their name. To make sure one partner does not sell the property before their partner has had the opportunity to apply for a transfer, an injunction may be applied for if there are grounds to suspect this may happen and legal advice must be obtained. It is also possible to injunct any proceeds of the sale as part of the matrimonial assets.
There are three kinds of order that the court can make. The couple can agree to one of these without going to court or go to Court for their agreement to be confirmed:
- for a sale, with division of the proceeds
- for transfer of one spouse’s interest to the other. This could, for example be done in conjunction with an agreement for that partner to accept less maintenance
- for a postponed sale, for example, until the children complete their education, but sometimes beyond that. The house will then be sold and the proceeds divided in specified proportions.
It is possible for one party to a separation to force the sale of a jointly owned property. This is called ‘licitation’.
In the early stages of the marriage, particularly if there are no children, the court may look mainly at the financial contributions of both partners and decide that the person who put the most in should have the most out. But the longer the marriage has gone on, and especially if there are children, the less the court is interested in who put in what money and the more it considers the needs of partners and any children. It will also consider factors such as earning capacity and opportunities for finding alternative accommodation.
If there are children it is unlikely that the Court would order a sale unless selling the home would bring in enough money to buy another house for the parent who is going to have the children to live there with them. The house, however, would have to be sold if a wife could not keep up the mortgage repayments with whatever assistance by way of maintenance the husband could pay.
If there are no children the court will decide how the proceeds of the house are to be divided by taking in to account direct financial contributions by each partner towards the purchase (payment of part of the deposit or part of the mortgage repayments) or improvement of the house, and also the indirect financial contribution where, for example, the wife has worked for part of the marriage and has use her earnings to pay some of the household bills, food, clothing, or has paid her earnings into the couple ‘s joint bank account. The court will also take into account the length of the marriage. If the marriage has lasted for some time and the wife has made mainly indirect financial contributions, the courts may use the principle that she should receive one third of the value as a starting point for calculating her share.
If one spouse’s share would be insufficient to enable them to buy a new home, particularly if their earnings put them in to a less favourable position for getting a mortgage, the court could order a greater share of the proceeds of sale. The court may compensate the other spouse by ordering lower maintenance or none at all.
The shares of the proceeds of the sale will be expressed in percentage terms or a fixed figure. A percentage share ensures that if the property sells for far more than was anticipated, each will not lose out. A fixed figure ensures that the partner less likely to be able to afford to buy a house otherwise, receives enough to buy a home. It anticipates the home could be sold for less than expected.
If a sale of matrimonial property is planned, anyone who claims to have a beneficial interest in the property due to financial contribution, for example a friend or relative who lived in the home and contributed to the mortgage, must be allowed to make representations before an order for sale is made.
Buying out one spouse
Once the court has decided what share each spouse has in the home, one could pay the other’s share. If the value of the home is not known or cannot be agreed, the court will usually direct that the property be valued. It saves money to agree who is to do the valuation rather than each having one.
The home is transferred to one partner
One spouse could propose to the court that the property is transferred to their sole name. This may be accompanied by an agreement to accept less or token maintenance. This has the following advantages:
- the future of the home is certain
- They do not have to rely on regular maintenance payments for subsistence
- They do not have to be in a position of continued dependency on their spouse
- They are free to raise income from the home by letting accommodation
If the client can choose not to have maintenance, it may be worthwhile to get an order for even a token sum, for example £1 per year, as they can then apply to have the order varied. If they do not have an order, it cannot be raised.
Stamp duty on transfer of matrimonial home
The Stamp Duty payable on the transfer of property following a Court Order for divorce, judicial separation or annulment of a marriage is much reduced from the usual duty payable. The fee is £5 for each page of the contract with a minimum fee of £10. The value of the property is irrelevant.
The court may decide that the home shall not be sold for a specified period while the partner and children live there, usually until the youngest child reaches school leaving age or finishes full-time education. The period specified might also be until the the remaining spouse co-habits, re-marries, sells the property or dies. They may wish at a later stage to buy out the other spouse’s share of the home, but could only do this with his agreement.
The main problem with a deferred sale is that the arrangement usually causes difficulties later. They will not necessarily be able to buy a new home later as it can be difficult to get a mortgage when older. However the proportions agreed at the divorce should ensure that each spouse will have sufficient capital when the house is sold to buy new accommodation.
If the spouse remaining is paying off the mortgage on the house, they will be contributing to the value of the other spouse’s eventual share of the proceeds of sale. If, however, there is no mortgage to be paid off, they will effectively be living in the house at the other spouse’s expense. The court therefore may make an order requiring rent from the time that the children cease to need the house as a home.
Types of Order regarding matrimonial home
Mesher Order – If this is granted, then the Court can order that the sale of the property can be deferred for a certain period of time, for instance until the children are no longer dependent.
Martin Order – This order is for the outright transfer of the property to one spouse.