Maintenance and separation
Updated 25 November 2013
1.Who can get maintenance
Under the Separation and Maintenance Orders (Jersey) Law 1953 ,as amended, either party to a marriage, and the children of the marriage may apply to the Petty Debts Court for a maintenance order. The amount awarded will take into account both partners' incomes and circumstances.
2.How to get maintenance
When a married couple separate the husband or wife may continue to support the other party and any children voluntarily. If not, or if the arrangement proves to be insufficient to cover the family's needs, the other party may obtain a maintenance order through the Petty Debts Court.
It is not essential to get legal advice to obtain a maintenance order, although it is advisable in cases of actual or threatened violence, housing difficulties, or proposed divorce. Legal Aid is available in these situations.
The advantages of voluntary maintenance agreements are the goodwill which can be maintained between parties and the flexibility, allowing almost immediate changes due to circumstances of need or difficulty. A husband or wife is usually aware of how much it costs to maintain the family, but the new circumstances where s/he has also to provide independent accommodation for her/himself can cause financial difficulties.
The disadvantage of a voluntary agreement is that it cannot be enforced. The payments may stop at any time, or reduce, and the only recourse for the other party is to get a maintenance order. Additionally, it may be difficult to prove payments for income tax purposes.
4.Separation and Maintenance Orders
A Separation and Maintenance Order may be applied for by either party to a marriage on the ground that the other party:
- Has failed to provide reasonable maintenance for the applicant;
- Has failed to provide, or make proper contribution towards reasonable maintenance for any child of the marriage;
- Has behaved in such a way that the applicant cannot reasonably be expected to live with him or her; or
- Has deserted the applicant.
The Petty Debts Court may make an order or orders containing all or any of the following provisions:
- a provision that the applicant be no longer bound to cohabit with the other party to the marriage;
- a Residence Order which states with whom the child or children under sixteen of the marriage will live. (See 08.30.40 for more information);
- a provision that one party to the marriage shall pay to the other party a weekly sum for the maintenance of the other party and any child of the marriage in the other party's legal custody, until the child attains the age of sixteen or completes full time education, but shall not be extended beyond the date on which the child attains the age of 21 years.
- a provision that either party to the marriage shall leave the matrimonial home within such a period as the Court considers reasonable; and
- were the party required to vacate the matrimonial home is the sole tenant, or the parties to the marriage are joint tenants of the matrimonial home, that, subject to the agreement of the owners of the property, the rights of tenancy possessed by the person leaving be transferred to the other party to the marriage.
The Court will not make a Separation and Maintenance Order on the application of either party on the grounds of adultery if the Court suspects there has been collusion or a condoning of the action.
5.How to apply for a Separation and Maintenance Order
In all cases it is advisable for the client to seek legal advice (through Legal Aid if appropriate) to obtain a Court Order.
It is necessary to supply a statement of financial circumstances and reasons for the separation, which will be heard in the Petty Debts Court at the Wednesday hearings. Normally such cases are left until last after a short adjournment held to clear the Courtroom, so that the case can be heard in privacy.
There are two types or order:
Interim Order: May be applied for immediately pending divorce to provide maintenance (but not to settle custody and access). No evidence is required and often the other party is not represented. In this circumstance, the Court will award a token payment (e.g. £15 per week) until the case returns to Court with both parties represented. The Court will decide an appropriate amount of weekly maintenance based on the affidavits of means supplied. Often the lawyers representing will have come to an agreement for an amount of maintenance which the Court endorses.
An Interim Order only lasts three months and must be renewed if necessary. Sometimes Interim Orders are sought continuously, avoiding evidence having to be brought to Court.
Full Order: Roughly ten such orders are applied for per year at the Petty Debts Court. They cover maintenance, custody and access to children until children reach sixteen years. Full Orders can be contested in Court, as evidence has to be brought of the circumstances of the marriage, and both parties appear as witnesses.
6.How is the maintenance paid
The recipient may request that maintenance is paid in cash, or via a bank account, whether the arrangement is voluntary or as the result of a Court Order. Payment may be weekly or monthly, although the amount is usually calculated per week.
It may be preferable for the maintenance to be paid through a third party, e.g. the Viscount's Department if there is a difficulty in communication between the parties. Sometimes the Court will suggest such an arrangement, if it is not specifically sought.
The Court may order payments to be made to the Viscount's Department (as 'Officers of the Court') on behalf of the applicant. These payments are always ordered to be made weekly. If these payments are not made the applicant may ask the Viscount's Department to institute recovery on her/his behalf.
If the Court has ordered payments to be made to the Viscount's Department, but they are being made direct to the applicant, then the Viscount will ask the Court to vary the order to require direct payment.
An amendment to the Maintenance Orders (Enforcement) (Jersey) Law 1999 was approved by the States in November 2006, which empowers the Royal Court or the Petty Debts Court to authorize an arrest (of up to no more than half of) the wages of the payer on the making of a maintenance order.
7.How much maintenance will be paid
Each situation is unique with a different set of circumstances. The Separation and Maintenance Orders (Jersey) Law 1953 as amended has regulations establishing the maximum amounts the Petty Debts Court can order to be paid weekly under the Law as follows:
Amount per week:
Maximum for applicant £200
Maximum per child £100
Larger amounts may be agreed between parties through their legal representatives.
8.What are the income tax implications
The onus is on the taxpayer to send details of all maintenance orders to the Income Tax Department as proof that the orders have been ratified. The parties involved will state amounts being paid/received on their tax returns, and these can then be substantiated.
Voluntary agreements drafted and signed at lawyers' offices are also deemed to have been ratified, and the taxpayer should send evidence of the agreement to the Income Tax Department on a specific form for the purpose.
Casual agreements, unratified, may result in difficulty when the parties try to claim allowance for tax, as there is no evidence to offer.
The income tax allowance for a child/children can be shared between the parents in the proportions agreed between themselves.
Maintenance payments are paid gross to the recipient, who will be taxed on this income if her/his income is over the income tax threshold, however, the first £2600 is free of tax.The payer may obtain tax relief on the payments up to a maximum of £2,600.
9.What happens if maintenance is not paid
If there is a Court Order for maintenance under the Separation and Maintenance Orders (Jersey) Law 1953 as amended, in some circumstances the Viscount's Department may be prepared to assist with recovery of arrears on behalf of the recipient without returning to the Court. This would be considered only if:
- under the order, maintenance is to be paid direct to the Viscount's Department; and
- the whereabouts of the other party is known and s/he has a job or assets to facilitate recovery of the arrears.
Under the Maintenance Orders (Enforcement)(Jersey) Law 1999 it is possible for an applicant denied payment under a maintenance order, either of the Family Division of the Royal Court or of the Petty Debts Court, to apply for an Ordre Provisoire. The payee will need to swear an affidavit (cost approximately £40) confirming the default in payment of maintenance before either a notary, advocate, Jersey solicitor or jurat of the Royal Court. This affidavit then has to be delivered to either the Bailiff's secretary if the maintenance order was issued by the Family Division of the Royal Court or the Petty Debts Court Greffier if the maintenance order was issued by the Petty Debts Court. Stamp duty of £50 is payable for an Ordre Provisoire (provisional order) signed by the Bailiff or £25 by a judge of the Petty Debts Court. The Ordre Provisoire is then taken to the Viscount's Department who will immediately serve it on the payer. The cost of serving the order is a minimum of £25, maximum of £100 at the discretion of the Viscount. The Ordre Provisoire will place an immediate distraint upon the movables of the payer and make a provisional arrest of wages until the parties appear before the Court (either Family Division of the Royal Court or the Petty Debts Court) to witness confirmation of the distraint or arrest on wages or both. The Court may arrest wages to the amount requested if it feels it appropriate in the circumstances, and this may recover arrears, and re-instate regular payments.
In the case of voluntary agreements, payment may not be enforced by the Courts, and a Court judgement for payment of the arrears would need to be sought. Clients should seek legal advice.
Where there is a Court order for maintenance the applicant can proceed to recover arrears on her/his own behalf through the usual process of a summons to the Petty Debts Court. See 4.8.2. This can prove difficult if the other party is unemployed or self-employed, when there can be no restraint on wages. However, a distraint of assets, and forced sale, can be ordered by the Court. See 4.32.0.L7 .
An amendment to the Maintenance Orders (Enforcement) (Jersey) Law 1999 was approved by the States in November 2006, which empowers the Royal Court or the Petty Debts Court to authorize an arrest (of up to no more than half of) the wages of the payer on the making of a maintenance order.The Amendment came into force on the 6th April 2007.
10.What if the other party lives outside Jersey?
If the other party lives in the UK, a maintenance order obtained in the Jersey Courts can be enforced in the UK. A client should seek legal advice for this.
If the address is unknown, a Jersey lawyer will use investigators to help discover her/his whereabouts.
If s/he lives in another country, it should be possible to obtain a maintenance order in that country, through a Jersey lawyer.
If a wife and children plan to move to Jersey from the UK or another country where the husband is living it would be wisest to seek a maintenance order in that place (depending how soon the move would take place), and then have it registered in Jersey.
What if the husband lives in Jersey and the wife lives in or moves to the UK or another country
A maintenance order may be taken out in the UK and an application for reciprocal enforcement in Jersey, made through the Judicial Greffe.
A wife living outside the UK or in a country which the States have declared to be a reciprocating country can obtain a Court Order in that country, and have it registered in Jersey. If the wife leaves Jersey having obtained a Jersey maintenance order, she must apply to the Court in Jersey if she wishes the order to be varied at any time. She should contact the Registrar, Family Division at the Judicial Greffe.
11.Reciprocal Enforcement of Maintenance Orders
Maintenance orders made by a Jersey Court are able to be enforced in countries such as England, Scotland, Portugal, Poland, Australia, Italy and Ireland. Likewise, maintenance orders made in those countries can be enforced in Jersey. The law and rules can be found on the Jersey legal information web site www.jerseylaw.je/Law/LawsInForce/alphabetical.aspx under the Maintenance Orders (Facilities for Enforcement) (Jersey) Law 2000.
The law and the accompanying rules set out procedures for the enforcement of maintenance orders in countries and territories that are parties to the 1973 Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance obligations. France, Portugal, Ireland and Poland are parties to this convention, as are many of the states within The United States of America.
There are also procedures for enforcing maintenance orders made in Jersey and countries and territories that are convention countries under the UN Convention on the Recovery Abroad of Maintenance. These include Australia, France, Poland and Portugal.
Payment of money for the maintenance of a child may also include payment for a child's education.
Procedural help can be obtained from the Deputy Registrar, Family Division, Royal Court.
For enforcement in England of Jersey Maintenance orders you will need to provide the Deputy Registrar, Family Division with the following:-
1. A schedule of payments and the date, if any, when the last payment of maintenance was made. You may be asked for documentary evidence.
2. A copy of the order which will then be certified by the Court.
3. An affidavit sworn by you setting out as much of the following information as you can:-
- your financial circumstances
- the full name and address of the respondent
- the respondent's financial circumstances, including the name and address of any employer of the respondent, his occupation, his telephone number, his description and, if possible, a photograph
- the date and place of issue of any passport of the respondent
- and any other financial circumstances that may be relevant
- name and address, including any bank details as to where the payments should be sent
4. Marriage certificate (if applicable) and birth certificates of the child or children (certified copies are acceptable)
12.What happens if circumstances change?
There may be several circumstances which can affect a Separation and Maintenance Order:
- resumption of co-habitation
- adultery by either party
- children reaching the age if 16 (or 21 if the order has been extended).
See 8.27.10.L11 Maintenance Order - applying for a variance
In addition. either party to the order may ask the Court to alter, vary or discharge the order if there has been a change of financial circumstances.
If the applicant is shown to have committed adultery, the other party may apply to the Court to order that maintenance be stopped, but the child/ren's maintenance would continue.
13.What happens if the couple decide to divorce
At some stage either party may decide to instigate divorce proceedings as long as:
- there are acceptable grounds or sufficient length of separation
- the couple have been married for three years
- the couple are domiciled in Jersey, or, if the wife is the Petitioner, that she is domiciled in Jersey or has lived in Jersey for the past three years
A Separation and Maintenance Order can be very helpful in establishing the ancillary matters for a divorce order. An order will be made by the Court for maintenance after divorce