Subject-Matter Index

Accommodation for family. See Financial provision—accommodation for family

Adoption

birth father. See Adoption—consent of parent. Adoption—joinder of unmarried birth father

consent of parent

unmarried father not “parent” for purpose of giving consent under Adoption (Guernsey) Law 1960, s.5(1)(a) and no “parental responsibility” under Children (Guernsey and Alderney) Law 2008, s.6(2)(b): In re Q (A minor) (Royal Ct.), 2009–10 GLR 368

joinder of unmarried birth father

may be joined as party to adoption proceedings if sufficient relationship with child—father with minimal relationship unlikely to be joined—joinder may be limited to giving right to have views taken into account: In re Q (A minor) (Royal Ct.), 2009–10 GLR 368

Appeals. See Children—community parenting order. Costs—appeal costs. Financial provision—appeals

Assistance to foreign court. See Children—assistance to foreign court

Bon père de famille. See MENTAL HEALTH (Curateur). TRUSTS (Powers and duties of trustees—duty to act in best interests of trust)

Capital assets. See Financial provision—factors to be considered. Financial provision—property adjustment order

Care homes. See COMPANIES (Administration orders—factors to be considered)

Care requirement. See Children—care requirement

Child, Youth & Community Tribunal. See Children—care requirement

Children

access

allegation of domestic violence—if allegations of domestic violence by spouse serious, access between spouse and children unlikely to be granted—if less serious, contact may be limited and supervised, but each case to be considered individually—to be preserved if sufficient safeguards in place: DE v. DE (Royal Ct.), 2011–12 GLR 301

welfare of children first consideration—if less serious allegation of domestic violence, court may grant allegedly violent spouse access if impact of access on children less than severing contact: DE v. DE (Royal Ct.), 2011–12 GLR 301

assistance to foreign court

court welfare report not to be disclosed for use in foreign proceedings without agreement of parties to Guernsey proceedings—contains sensitive and confidential information—welfare services may respond to foreign court’s requests for information, if Guernsey material relevant to child’s best interests—co-operation will not ordered: In re C (Royal Ct.), 2000–02 GLR 503

birth certificate. See REGISTRATION (Births—rectification of Register)

care requirement

CYCT (or court exercising CYCT powers) to give detailed reasons for decisions, including reference to Children (Guernsey & Alderney) Law 2008, ss. 3–4 and ECHR, art. 8—particular need to explain reasons for removal of child from family environment; departure from safeguarder’s recommendation; or, if appellate court, not to accept further submissions/evidence before exercising CYCT powers—reasoning to be “obvious and transparent” so appellate court in no doubt whether correct considerations taken into account: In re C (A minor) (Royal Ct.), 2013 GLR 139

guidance given as to materials/information to assist CYCT meet required standard when giving reasons for decision: In re C (A minor) (Royal Ct.), 2013 GLR 139

no requirement to treat the words in Family Proceedings Rules 2009, r.56 (“justified in all the circumstances”) as always requiring Juvenile Court to find that CYCT decision “plainly wrong”—“plainly wrong” test capable of being applied to appeals against exercise of CYCR discretion: In re C (A minor) (Royal Ct.), 2013 GLR 139

procedural safeguards (e.g. circulation of child’s plan at least 7 days before hearing) ensure fair hearing—if no compliance, CYCT or appellate court to have regard to that fact when reaching decision: In re C (A minor) (Royal Ct.), 2013 GLR 139

change of surname. See Names—change of child’s surname

child pornography. See CRIMINAL LAW (Indecent photographs of children)

community parenting order

appeals

on appeal against Juvenile Court’s decision to make community parenting order, parents’ admission (made by their advocate) that lied on oath in Juvenile Court as to misuse of drugs not admitted as new evidence as could have been available in lower court—appeal considered on evidence presented to lower court, in light of admission of perjury: In re K (A Minor) (Royal Ct.), 2014 GLR 227

on appeal against Juvenile Court’s decision to make community parenting order, Royal Court only to interfere with finding of fact if satisfied no evidence on which Juvenile Court could reasonably have made it, or otherwise perverse—only to interfere with value judgment (e.g. whether threshold crossed for compulsory intervention under s.35 of Children (Guernsey and Alderney) Law 2008) or exercise of discretion (e.g. what order to make on HSSD’s application in respect of child) if satisfied Juvenile Court’s decision wrong—appeal dismissed if parents with chaotic lifestyle and long-standing misuse of drugs unable to provide adequate care, protection, guidance or control under s.49(2)(a): In re K (A Minor) (Royal Ct.), 2014 GLR 227

court not readily to make community parenting order endorsing care plan which proposes severing bond between children and parents, especially mother: In re S Children (Juvenile Ct.), 2009–10 GLR N [18]

interim order

if choice between making order under new legislation and that in process of being superseded, order to be made under new legislation, e.g. interim community parenting order under Children (Guernsey and Alderney) Law 2008, s.53, rather than interim fit person order under Children (Consequential Amendments etc.) (Guernsey and Alderney) Ordinance 2009, Schedule 2, para. 4: In re S Children (Juvenile Ct.), 2009–10 GLR N [18]

test applicable for making order under Children (Guernsey and Alderney) Law 2008, s.53 unchanged from previous law—DHSS to establish reasonable grounds for believing circumstances relating to child satisfy relevant criteria under s.49(2) as at date of application—heavy burden, requiring concrete evidence, and “mere speculative concerns” insufficient—even if burden satisfied, overriding principle remains child’s welfare and may extend court’s discretion: In re S Children (Juvenile Ct.), 2009–10 GLR N [18]

“reasonable prospect” of mother’s inability to provide adequate care, etc. for child, to justify making order under Children (Guernsey and Alderney) Law 2008, s.49(2)(a)(ii)(A), requires proof of inability within time scale suitable to child’s needs and interests: In re S Children (Juvenile Ct.), 2009–10 GLR N [18]

compulsory intervention

statutory threshold criteria

child “likely to suffer” significant impairment to health or development, under Children (Guernsey and Alderney) Law 2008, s.35(2), if real possibility (i.e. possibility that cannot sensibly be ignored having regard to nature and gravity) of significant impairment: In re K (A Minor) (Royal Ct.), 2014 GLR 227

relevant date for establishing child suffered or likely to suffer significant impairment to health or development, under Children (Guernsey and Alderney) Law 2008, s.35(2), is date of application for protective measures, not later date of hearing—when seeking to establish threshold criteria at hearing, HSSD may adduce evidence of which became aware after relevant date, if relates to factual situation on or before that date, not evidence of new supervening fact: In re K (A Minor) (Royal Ct.), 2014 GLR 227

“significant impairment” to child’s health or development, in Children (Guernsey and Alderney) Law 2008, s.35(2) not same as “significant harm” in s.31 of English Children Act 1989—definition of significant harm may nevertheless assist interpretation of significant impairment: In re K (A Minor) (Royal Ct.), 2014 GLR 227

costs. See Financial provision—costs

counsel

duty to assist court in furthering overriding objective of dealing with cases justly (Family Proceedings (Guernsey & Alderney) Rules 2009, r.1(2)) might in family proceedings include highlighting court’s failure to provide clear reasoning so can avoid unnecessary further proceedings: In re C (A minor) (Royal Ct.), 2013 GLR 139

decisions of Scottish courts

since Scottish system of children’s hearings provided framework for Children (Guernsey & Alderney) Law 2008, relevant Scottish decisions persuasive authority: In re C (A minor) (Royal Ct.), 2013 GLR 139

effect of deportation

balance to be struck between need to punish serious crime and deter others; and importance of relationship between offender to be deported and his family—interference with family lives of others also to be considered, such as impact of violent and degrading offences on complainant and her family: Pinto v. Law Officers (C.A.), 2013 GLR 83

correct approach to European Convention, art. 8 is to ask (a) is there interference with family life? (b) is it in accordance with law and in pursuit of a legitimate aim within art. 8(2)? and (c) if so, is interference proportionate, given balance between various factors?: Pinto v. Law Officers (C.A.), 2013 GLR 83

proportionality of deportation as sanction not finally decided by court’s recommendation—remains to be considered by Lieutenant Governor when appellant to be released—balance of circumstances may change over years, though child’s best interests always to remain primary consideration: Pinto v. Law Officers (C.A.), 2013 GLR 83

where child affected by deportation, its best interests always of primary importance—impact of deportation on child need not be exceptionally severe to justify engagement of European Convention on Human Rights, art. 8 (protection of private and family life) but heavier pressure for deportation requires stronger evidence to support successful reliance on art. 8: Pinto v. Law Officers (C.A.), 2013 GLR 83

effect of deportation of parent

balance to be struck between need to punish serious crime and deter others, and importance of relationship between offender to be deported and his family—more serious the offence(s), less likely that recommendation to deport disproportionate: Fernandes v. Law Officers (C.A.), 2014 GLR N [8]

importance of relationship between child and parent recommended for deportation less significant if no elements of dependence between them—reliance on relationship with adult child requires parent to prove additional elements of dependence: de Sousa v. Law Officers (C.A.), 2014 GLR 107

financial provision. See Financial provision—children. Financial provision—variation

illegitimate children

application to determine child’s legitimacy probably to be made first to courts of child’s domicile: A Father v. H.M. Greffier (Royal Ct.), 2015 GLR 22

financial provision. See Financial provision—children

if consequences of illegitimacy in Guernsey law unclear, Royal Court unwilling to exercise inherent jurisdiction to make declaration on legitimacy/illegitimacy, since then at risk of prejudicing parties not before court: A Father v. H.M. Greffier (Royal Ct.), 2015 GLR 22

legitimacy determined by law of child’s domicile of origin—takes parents’ domicile if both domiciled in same jurisdiction: A Father v. H.M. Greffier (Royal Ct.), 2015 GLR 22

Royal Court has inherent jurisdiction to make declaration on legitimate status of child whenever necessary to do fullest justice to applicant—declaration not binding in rem but only for purposes and on parties before court: A Father v. H.M. Greffier (Royal Ct.), 2015 GLR 22

name. See Names—change of child’s surname

parental responsibility

parents should share responsibility for children, and shared residence order to be rule, not exception—unnecessary to make shared residence order if harmonious relationship between parents: DE v. DE (Royal Ct.), 2011–12 GLR 301

registration of births

Loi relative à l’Enregistrement des Naissances et Décès dans le Bailliage de Guernesey 1935, art. 2(2) imposes obligation on declarant to state if child illegitimate—Registrar-General obliged to accept declarant’s description of status—if declarant states under art. 2(1) that child legitimate by law of its domicile, statement to be accepted for purpose of registration—court to require proof of that law as foreign law: A Father v. H.M. Greffier (Royal Ct.), 2015 GLR 22

registration. See REGISTRATION (Births)

removal from jurisdiction

application by parent with care and control for permission to remove child from jurisdiction and application by non-resident parent for shared residence order to be considered together, not sequentially: M v. F (Royal Ct.), 2014 GLR 310

child’s welfare of paramount importance—court to consider (a) if application genuine and realistic; (b) motive of opposing parent; and (c) impact of refusal on parent with care, especially if new spouse is foreign national—in child’s best interests to allow mother (with new French husband) to relocate with child to France if application genuine and well researched, change to child’s contact with father not too great, and mother would be devastated by refusal: M v. F (Royal Ct.), 2014 GLR 310

permission to remove child from jurisdiction may be subject to conditions, e.g. to obtain mirror order from foreign court; directions as to contact with non-resident parent; funding of child’s travel to Guernsey for contact; and indirect contact: M v. F (Royal Ct.), 2014 GLR 310

residence order

court follows English guidance in determining residence order to be made—welfare of children first consideration—shared residence rule, not exception, as reflects notion that parents should share responsibility for children—unnecessary to make shared residence order if harmonious relationship between parents: DE v. DE (Royal Ct.), 2011–12 GLR 301

shared residence order available under Children (Guernsey and Alderney) Law 2008—court to take into account children’s wishes and right to have meaningful participation by both parents if possible: DE v. DE (Royal Ct.), 2011–12 GLR 301

shared residence order granted even though child lives with non-resident parent for only 25% of time—reflects need for parents to co-operate over care arrangements—if child relocates with mother to France, Housing Department might consider, for purposes of housing qualifications, that child ordinarily resident in Guernsey when stays with father in Guernsey: M v. F (Royal Ct.), 2014 GLR 310

split hearing—domestic violence as reason for denying spouse contact with children not automatically reason for split hearing—no need for split hearing if allegations unlikely to affect court’s making residence or contact order: DE v. DE (Royal Ct.), 2011–12 GLR 301

Safeguarder

court not bound to follow Safeguarder’s recommendations but must explain reasons for departure from them: M v. F (Royal Ct.), 2014 GLR 310

significant impairment to health or development

“significant impairment” to child’s health or development in Children (Guernsey and Alderney) Law 2008, s.35(2) not same as “significant harm” in s.31 of English Children Act 1989—definition of significant harm may nevertheless assist interpretation of significant impairment: In re K (A Minor) (Royal Ct.), 2014 GLR 227

whether adequate care by parents

when considering whether parents able and willing to provide adequate care, protection, guidance and control for child, under Children (Guernsey and Alderney) Law 2008, s.49(2)(a), judge correct to consider ss. 3 and 4 of the Law, i.e. child welfare principles and child welfare checklist—also correct to require that provision of adequate care to be within timescale suitable to child’s needs: In re K (A Minor) (Royal Ct.), 2014 GLR 227

whether parents able and willing to provide adequate care, protection, guidance and control for child, under Children (Guernsey and Alderney) Law 2008, s.49(2)(a), determined as at date of hearing: In re K (A Minor) (Royal Ct.), 2014 GLR 227

welfare principles

welfare principles and welfare checklist in Children (Guernsey and Alderney) Law 2008, ss. 3 and 4 apply to all evaluative decisions and exercises of discretion by court—not applicable to pure findings of fact, other than to assist court to decide which facts relevant: In re K (A Minor) (Royal Ct.), 2014 GLR 227

Clean break. See Financial provision—clean break

Co-ownership of assets. See Financial provision—matrimonial home. Property—jointly owned property

Cohabitation after divorce. See Financial provision—matrimonial home

Cohabitees. See Property—cohabitees. Property—jointly owned property

Community parenting order. See Children—community parenting order

Compulsory intervention. See Children—compulsory intervention

Consent to divorce. See Divorce—2 years’ living apart and consent

Contracts between family members. See CONTRACT (Intention to create legal relations—family arrangements)

Contributions for support. See Financial provision—contributions for support

Costs

appeal costs

no rule that costs not awarded in appeals in family proceedings but, in exercise of broad discretion, court may choose not to order costs if both parties have limited incomes and order would cause extreme hardship: E v. E (C.A.), 2007–08 GLR 133

order against advocate personally—sufficient dereliction of duty in failing to observe appeal procedure, necessitating extension of time, justifies order for payment of both parties’ costs by advocate personally: E v. E (C.A.), 2007–08 GLR 133

costs follow event

prima facie starting point—court in family proceedings to consider all circumstances of case in deciding whether to apply—factors (including conduct of parties) set out in England in Family Procedure Rules 2010, r.28.3(5)–(7) may afford guidance to Guernsey courts: Wife v. Husband (Royal Ct.), 2015 GLR N [6]

prima facie starting point, not automatic, especially in family proceedings: C v. C (Royal Ct.), 2003–04 GLR N [20]

culpability in conducting litigation

inability of parties to negotiate settlement out of court not of itself reason to imply blame of either: C v. C (Royal Ct.), 2003–04 GLR N [20]

incumbent on parties to attempt financial settlement out of court, but court has wide discretion to award costs—culpability in conducting litigation, e.g. material non-disclosure, delay or unreasonable refusal to negotiate, should lead to party being penalized in costs, but court to be wary of apportioning blame: C v. C (Royal Ct.), 2003–04 GLR N [20]

financial provision. See Financial provision—costs

Culpability in conducting litigation. See Costs—culpability in conducting litigation

Deportation of parent. See Children—effect of deportation of parent

Divorce

2 years’ living apart and consent

respondent’s objection to divorce on religious grounds only relevant if petition based on 2 continuous years’ living apart, for which consent to divorce required: F v. F (Royal Ct.), 2003–04 GLR N [29]

costs. See Costs

unreasonable behaviour

“behaviour” is actions, omissions or course of conduct by one party affecting other and with some reference to marriage—may include conduct after marriage regarding pre-marital matters, e.g. breaking pre-marital promise or disclosure of facts after marriage which should have been disclosed before—may occur whether parties living together or separated: F v. F (Royal Ct.), 2003–04 GLR N [29]

burden of proof on petitioner to show respondent’s unreasonable behaviour—corroboration of evidence desirable, but not necessary—test whether right-thinking man would consider that one could reasonably be expected to live with other, considering all circumstances: F v. F (Royal Ct.), 2003–04 GLR N [29]

Domestic violence

domestic violence injunction

not to be made ex parte unless emergency: DE v. DE (Royal Ct.), 2011–12 GLR 301

effect on child access. See Children—access. Children—residence order

ouster order

extremely serious and drastic measure—only to be made if spouses unable to live together—not to be made ex parte except in emergency—if emergency, inter partes hearing to follow as soon as possible and applicant to prove order necessary: DE v. DE (Royal Ct.), 2011–12 GLR 301

in considering whether to grant ouster order, no principle that paramount duty of court to consider welfare of children—welfare of children one of several factors, also including conduct of spouses, financial resources and needs, to be considered: DE v. DE (Royal Ct.), 2011–12 GLR 301

Equality. See Financial provision—equality

Equitable presumptions. See Property—law applicable

“Family life”

effect of deportation of sibling

“family life” in relation to adult siblings only to be given respect under European Convention, art. 8 if offender shows elements of dependence between them—mere presence in Guernsey insufficient: Fernandes v. Law Officers (C.A.), 2014 GLR N [8]

Financial provision

accommodation for family

court to ensure that no unacceptable fall in family’s standard of living—may order lump sum payment to wife to enable purchase of adequate house for self and children, and preserve family home in husband’s name so that possible for children also to stay with him: DE v. DE (Royal Ct.), 2011–12 GLR 301

housing of parent with care of dependent children first priority, even if other parent then not housed as wishes: I v. I (Royal Ct.), 2003–04 GLR N [36]

appeals

appeal under Domestic Proceedings and Magistrate’s Court (Guernsey) Law 1988, s.30 against order for maintenance of child made under s.10, not by way of re-hearing—presumption that Magistrate’s findings of fact and decision on them are correct and to be accepted by the Royal Court unless perverse: A v. B (Royal Ct.), 2007–08 GLR N [22]

Court of Appeal not normally to interfere with Royal Court’s exercise of discretion in awarding financial provision—only legitimate if decision applies correct rules but goes beyond generous ambit within which reasonable disagreement possible: D v. D (C.A.), 2007–08 GLR 334

extension of time for appeal

costs—sufficient dereliction of duty in failing to observe appeal procedure, necessitating extension of time, justifies order for payment of both parties’ costs by advocate personally: E v. E (C.A.), 2007–08 GLR 133

proper to consider length of delay, reason for delay, whether arguable case on appeal, degree of prejudice to respondent if time extended—interests of justice likely to outweigh prejudice if arguable case on important legal question needing consideration: E v. E (C.A.), 2007–08 GLR 133

Royal Court not to interfere with Magistrate’s exercise of discretion under Domestic Proceedings and Magistrate’s Court (Guernsey) Law 1988, ss. 3 and 10, unless decision based on misunderstanding of law or evidence, wrong inference drawn from facts, or change of circumstances since hearing—should not start by exercising own independent discretion but defer to Magistrate’s exercise of discretion—irrelevant that would itself have exercised discretion differently: A v. B (Royal Ct.), 2007–08 GLR N [22]

approval by court. See Financial provision—maintenance agreement

business assets

court reluctant to divide business assets if main source of income for spouse, business at risk of collapse if divided, and matrimonial assets sufficient to provide for children’s and other spouse’s needs—may order any interest of other spouse to be transferred to avoid division of business assets: DE v. DE (Royal Ct.), 2011–12 GLR 301

valuation

in ancillary relief proceedings, inappropriate to attempt precise valuation of entity unlikely to be sold, e.g. small private company—value of assets very important factor under Matrimonial Causes Act 1973, s.25, but court not to involve itself in minutiae of accounting theory: DE v. DE (Royal Ct.), 2011–12 GLR 301

proper valuation of trading business to be by reference to profits—valuation on basis of turnover only for professional services companies—valuation on 5-year basis preferable to 3-year basis so exceptional year impacts less: DE v. DE (Royal Ct.), 2011–12 GLR 301

capital assets. See Financial provision—equality. Financial provision—matrimonial home. Financial provision—pensions

charge on matrimonial home. See Financial provision—matrimonial home

children

appeals in respect of financial provision. See Financial provision—appeals

as welfare of children first consideration, financial affairs to be arranged so as to discharge obligation to make reasonable provision for children—variation of child maintenance agreement embodied in consent order to give first consideration to discharging this obligation: C v. C (Royal Ct.), 2007–08 GLR N [13]

costs in cases involving children. See Financial provision—costs

housing of parent with care of dependent children first priority, even if other parent then not housed as wishes: I v. I (Royal Ct.), 2003–04 GLR N [36]

maintenance. See Financial provision—secured periodical payments

under Sark customary law, Seneschal’s Court may order father to pay maintenance for illegitimate child: A v. R (P.C.), 2018 GLR 66

under Sark customary law, Seneschal’s Court may order parent to pay maintenance for illegitimate child: A v. R (C.A.), 2017 GLR 105

variation of maintenance agreement. See Financial provision—variation

welfare of children first consideration—in determining financial provision, court to ensure that children’s standard of living does not deteriorate unacceptably: DE v. DE (Royal Ct.), 2011–12 GLR 301

clean break

clean break appropriate, but ultimate objective is fairness—English Matrimonial Causes Act 1973 has no application in Guernsey: Q v. Q (C.A.), 2020 GLR 103

court to consider clean break, but only if obvious that parties will achieve self-sufficiency—no presumption that capital to be redistributed unless just in light of Matrimonial Causes Act 1973, s.25 factors: I v. I (Royal Ct.), 2003–04 GLR N [36]

court to have regard to possibility of clean break and possibility of parties’ self-sufficiency—clean break desirable if parties uncooperative—may order parties’ shared business interests to be transferred to one party to give effect to clean break: DE v. DE (Royal Ct.), 2011–12 GLR 301

since welfare of children first consideration, clean break often not possible—court may order cooperation of both parents in matters concerning children, e.g. compliance with counselling for children with special needs: DE v. DE (Royal Ct.), 2011–12 GLR 301

consent order

court to respect bona fide agreement embodied in consent order if free consent by both parties, not sham, no ulterior or collateral motive in consent, and agreement not ultra vires—explicit consent and full understanding of obligations creates contract-like agreement—agreement only set aside on grounds justifying setting aside contract made by legally competent parties with full knowledge of material matters: Le Pelley v. Waite (Royal Ct.), 2000–02 GLR N [20]

summary judgment—application under Royal Court Civil Rules 1989, r.17 for summary judgment in respect of outstanding moneys under consent order refused if, by time of application, defendant has already paid more than amount claimed—not permissible for interlocutory application for summary judgment to enlarge sum claimed: Le Pelley v. Waite (Royal Ct.), 2000–02 GLR N [20]

contributions for support

although desirable to achieve clean break where possible, Lieutenant Bailiff’s order that husband pay maintenance to wife during their joint lives fair and reasonable in circumstances: Q v. Q (C.A.), 2020 GLR 103

costs

if offer of financial provision rejected and not bettered on application to court, applicant may lose own costs and risks order to pay respondent’s costs incurred after communication and consideration of offer: B v. B (Royal Ct.), 2005–06 GLR N [24]

starting point that costs normally follow event—court will consider in all circumstances of case whether to apply principle—factors (including conduct of parties) set out in England in Family Procedure Rules 2010, r.28.3(5)–(7) may afford guidance to Guernsey courts: Wife v. Husband (Royal Ct.), 2015 GLR N [6]

starting point that costs normally follow event if applicant succeeds in contested application and funds available—starting point easily displaced, e.g. unusual to award costs at all when children involved: B v. B (Royal Ct.), 2005–06 GLR N [24]

disclosure of assets

pre-nuptial agreement. See Financial provision—pre-nuptial agreement

use of professional financial information disclosed to lawyer in advocate’s matrimonial proceedings may be restrained both by advocate and also by professional partner if lawyer (and his firm) also represent litigants opposing professional partner—firm may properly give undertakings to reduce risk of disclosure and to ensure confidentiality and compliance with non-disclosure, including removal of advocate from affected proceedings: Ozannes v. Dinning (C.A.), 2003–04 GLR 491

disclosure of legal advice. See ADVOCATES (Professional privilege—legal advice privilege). EVIDENCE (Privilege—legal advice privilege)

division of assets

court to have regard to factors in Matrimonial Causes Act 1973, s.25, e.g. spouses’ needs, standard of living and ages, and measure needs against yardstick of equality—may be appropriate to depart from yardstick, e.g. if businesses jeopardized if divided, one spouse has more earning potential, and needs of spouses and children met by division of matrimonial assets: DE v. DE (Royal Ct.), 2011–12 GLR 301

unless parties content to split assets pro rata, court to look critically at character and quality of assets—if only income-producing assets for spouse are shares in business, court wary of jeopardizing financial well-being of business, especially if welfare of children dependent on it—may not be appropriate to order sale of shares in order to provide spouse with lump sum: DE v. DE (Royal Ct.), 2011–12 GLR 301

earning capacity

in determining financial provision, court may consider parties’ ages and respective earning capacity—equal division of assets may not be appropriate, e.g. if one party at end of working life and other has good, long-term employment prospects: DE v. DE (Royal Ct.), 2011–12 GLR 301

equality

court to have regard to factors in Matrimonial Causes Act 1973, s.25, e.g. spouses’ needs, standard of living and ages, and measure needs against yardstick of equality—if division on needs principle gives one party greater amount of assets than sharing principle, former principle should prevail: DE v. DE (Royal Ct.), 2011–12 GLR 301

fairness between spouses in division of capital assets may be best achieved by using yardstick of equality—if payment of husband’s share of capital division deferred because charged on matrimonial home, legitimate to increase charge and enhance final share to compensate for deferral and greater borrowing/repayment difficulties encountered in old age: D v. D (C.A.), 2007–08 GLR 334

fairness between spouses may be best achieved by seeking equality in dividing capital assets—no distinction between nature of contributions, domestic or economic, to acquiring and maintaining capital assets, especially matrimonial home: E v. E (C.A.), 2007–08 GLR 133

no “one-third rule” or any other fractional starting point for dividing assets—if equal division not appropriate, court to give reasons why not: I v. I (Royal Ct.), 2003–04 GLR N [36]

factors to be considered

court to have regard to factors in Matrimonial Causes Act 1973, s.25—no factor intrinsically more important than another and all factors to be considered—court not to apply case-law too rigidly, since each situation different: I v. I (Royal Ct.), 2003–04 GLR N [36]

inequality of bargaining power between husband and wife. See Financial provision—pre-nuptial agreement

legitimate to have regard to factors in Matrimonial Causes Act 1973, s.25, e.g. spouses’ needs, standard of living and ages, and measure needs against yardstick of equality—if division on needs principle gives one party greater amount of assets than sharing principle, former principle should prevail: DE v. DE (Royal Ct.), 2011–12 GLR 301

no presumption that capital to be redistributed unless just in light of Matrimonial Causes Act 1973, s.25 factors—court to consider clean break, but only if obvious that parties will achieve self-sufficiency: I v. I (Royal Ct.), 2003–04 GLR N [36]

pre-nuptial agreements. See Financial provision—pre-nuptial agreement

reasonable capital and income needs of parties to be considered—housing most important consideration—if dependent children, housing of parent with care first priority even if other parent then not housed as wishes, e.g. in former matrimonial home: I v. I (Royal Ct.), 2003–04 GLR N [36]

inherited assets. See Financial provision—later acquired assets

later acquired assets

assets inherited by one spouse following marriage breakdown not normally considered in determining financial proceedings, unless other spouse contributed to source of income (e.g. by providing care for deceased) or necessary to provide for children’s welfare: DE v. DE (Royal Ct.), 2011–12 GLR 301

lump sum. See Financial provision—secured periodical payments

maintenance agreement

enforceability after divorce—agreement may be made enforceable by incorporation into order of court—sufficient if substantive terms clear and only details of implementation (including financing) remain to be finalized: D v. D (Royal Ct.), 2007–08 GLR 127

ratification by court—court’s approval required under Matrimonial Causes (Guernsey) Law 1939, art. 27 only for agreement reached during marriage not after divorce: D v. D (Royal Ct.), 2007–08 GLR 127

variation. See Financial provision—variation

matrimonial home

if husband’s share of capital secured by charge on home, payable on occurrence of specified events, legitimate also to specify definite termination date—court may increase charge and enhance husband’s final share to compensate for deferral and greater borrowing/repayment difficulties encountered in old age: D v. D (C.A.), 2007–08 GLR 334

if husband’s share of capital secured on home, payable on children’s majority or earlier specified events, wrong to order discount for early payment—court to try to preserve real value of capital share by suitable order: E v. E (C.A.), 2007–08 GLR 133

in appropriate case, co-ownership may be best recognition of principle of equality between spouses—may order capital shares to be realized as soon as needs of children permit, e.g. on attaining majority, ceasing to live in home, or death of mother with care and control—inappropriate to order sale merely because of mother’s remarriage or cohabitation, because responsibilities to children then continue: E v. E (C.A.), 2007–08 GLR 133

interim occupation order—may be made in respect of tenancy (including States tenancy)—to be made exceptionally, having considered all circumstances: L v. L (Royal Ct.), 2005–06 GLR N [4]

Martin order giving wife sole ownership and indefinite occupation only appropriate if husband not in need of accommodation or stake in housing market—if husband given charge on home, legitimate to add early final date for payment of charge to other conditions triggering payment: D v. D (C.A.), 2007–08 GLR 334

Mesher order. See Financial provision—Mesher order

since court to consider desirability of clean break, may order transfer of matrimonial home from joint to sole ownership of spouse, with adequate compensation (e.g. lump sum) for other spouse to find suitable accommodation for self and children: DE v. DE (Royal Ct.), 2011–12 GLR 301

variation of mortgage liabilities. See Financial provision—property adjustment order

Mesher order

court to be wary of making Mesher-style order, as may cause unfairness in future, e.g. if sale of former matrimonial home ordered after younger child finishes secondary education and wife then unable to afford alternative housing—consideration to be given to alternatives: I v. I (Royal Ct.), 2003–04 GLR N [36]

if parties uncooperative, Mesher order inappropriate and court to strive to achieve clean break: DE v. DE (Royal Ct.), 2011–12 GLR 301

offer to settle. See Financial provision—costs

payment of debts

allocation of spouse’s liabilities (e.g. debts to third parties) not possible under Matrimonial Causes (Guernsey) Law 1939, art. 46—permits only allocation or division of “interest in property”: C v. C (C.A.), 2005–06 GLR 199

“contributions for support” in Matrimonial Causes (Guernsey) Law 1939, art. 47 include payments to assist other spouse to repay debts incurred during marriage—payment may be to spouse or direct to creditor—properly dealt with under art. 47 rather than by separate civil proceedings in Royal Court: C v. C (C.A.), 2005–06 GLR 199

under Matrimonial Causes Act 1973, s.25(2)(g), may have regard to conduct if inequitable not to do so—“conduct” includes financial conduct—may be inequitable to disregard wife’s financial conduct by incurring and deliberately concealing substantial debts: C v. C (Royal Ct.), 2005–06 GLR N [17]

pensions

pensions not separate form of capital asset—to be considered with other capital assets in light of factors in Matrimonial Causes Act 1973, s.25: I v. I (Royal Ct.), 2003–04 GLR N [36]

pre-nuptial agreement

advocate drawing up agreement on client’s behalf preferably to disclose client’s assets to other party, especially if significant difference in wealth and other party cannot obtain legal advice before signing: E v. E (Royal Ct.), 2003–04 GLR N [22]

court generally enforces properly negotiated agreements with both parties having legal advice—if one party receives no legal advice, may be unjust to impose all terms—if party cannot afford legal advice, may be fair to order other party for whom agreement drafted to pay fees: E v. E (Royal Ct.), 2003–04 GLR N [22]

court generally to enforce pre-nuptial agreement between freely consenting adults as matter of public interest, subject to safeguards (e.g. opportunity to seek legal advice), general law of contract and criteria under Matrimonial Causes Act 1973, s.25—may reconsider enforcement if significant change in underlying substratum, e.g. if children later born, when not contemplated at time of agreement: DE v. DE (Royal Ct.), 2011–12 GLR 301

party to pre-nuptial agreement not entitled to reduced financial provision on divorce merely because benefit of British citizenship and living in Britain may have motivated marriage: E v. E (Royal Ct.), 2003–04 GLR N [22]

pre-nuptial agreement to be considered by court, but overriding duty to make fair order taking into account provisions of Matrimonial Causes Act 1973, s.25—may not enforce all terms, e.g. if drawn up for one party and other has no independent advice, significant disparity in wealth of parties, and finances not disclosed before agreement—court to consider conduct of parties, e.g. reprehensible coercion by one party for other to sign agreement: E v. E (Royal Ct.), 2003–04 GLR N [22]

property adjustment order

breach of European Convention on Human Rights, First Protocol, art. 1 to order transfer of matrimonial home from joint ownership to sole ownership of one spouse pending refinancing, if no compensation or provision for reopening issue after refinancing completed—disproportionate response to spouse’s refusal to execute refinancing documents: E v. E (C.A.), 2007–08 GLR 374

“interest in property” in Matrimonial Causes (Guernsey) Law 1939, art. 46 includes encumbrances on property—may use art. 46 to order variation of mortgage liabilities on matrimonial home as part of fair allocation of parties’ assets—powers to be used to deal with widest range of property and give maximum flexibility in reaching equitable division of parties’ property: E v. E (C.A.), 2007–08 GLR 374

“interest in property” in Matrimonial Causes (Guernsey) Law 1939, art. 46 refers only to allocation or division of assets—allocation of spouse’s liabilities (e.g. debts to third parties) to other spouse not within scope of art. 46: C v. C (C.A.), 2005–06 GLR 199

Mesher order. See Financial provision—Mesher order

refusal to execute refinancing documents when ordered by court obviated under Matrimonial Causes (Guernsey) Law 1939, art. 57 by nominating court official to execute in place of recalcitrant party—procedure preferable to depriving party of entire property interest for non-compliance, or holding in contempt: E v. E (C.A.), 2007–08 GLR 374

re-hearing. See Financial provision—appeals

recognition of foreign award

foreign award tainted by fraud or other vitiating factor not to be recognized in Guernsey—full and frank disclosure to foreign court desirable for recognition of award—non-disclosure, especially if hearing ex parte, not necessarily fatal to recognition but to be weighed to see how far affected foreign court’s judgment: Williams v. Williams (Royal Ct.), 2003–04 GLR 237

secured periodical payments

if party has paid maintenance on time, and no evidence that payments will cease, may be appropriate under Matrimonial Causes (Guernsey) Law 1939, art. 43 to order security for future payments rather than lump sum if husband intends to leave Island for jurisdiction not covered by Maintenance Orders (Facilities) (Enforcement) (Reciprocating Countries) (Guernsey) Ordinance 1959 and no employment in view: C v. C (Royal Ct.), 2003–04 GLR N [20]

rarely ordered, as lump sum and property adjustment orders available instead—in considering whether to order security, to balance all circumstances, including extent to which freezing assets hinders ability to earn income, likelihood of moving out of jurisdiction to avoid payments, likelihood otherwise of failure to honour maintenance commitments, and whole financial structure of parties’ assets: J v. J (Royal Ct.), 2009–10 GLR N [14]

tax liabilities

spouse ordered to make periodic monthly payments to other spouse not entitled to deduct income tax from payments: Le Pelley v. Waite (Royal Ct.), 2000–02 GLR N [20]

valuation of assets

business assets

inappropriate to attempt precise valuation of entity unlikely to be sold, e.g. private company—value of assets very important factor under Matrimonial Causes Act 1973, s.25, but court not to involve itself in minutiae of accounting: DE v. DE (Royal Ct.), 2011–12 GLR 301

proper valuation on multiple of profits—valuation on basis of turnover only for professional services companies, not trading businesses—valuation on 5-year basis preferable to 3-year basis so exceptional year impacts less: DE v. DE (Royal Ct.), 2011–12 GLR 301

variation

consent order not normally appealable but may be set aside for non-disclosure, fraud or misrepresentation, fundamental supervening events invalidating basis of original order, or undue influence—application for variation to appeal court or original court governed by same principles: B v. B (Royal Ct.), 2005–06 GLR N [1]

no variation of terms of financial agreement on judicial separation by consent unless compelling evidence that objectively unfair—not unfair if party advised to seek legal advice but does not—not unduly onerous if great consideration given prior to agreement and neither party coerced—court to bear in mind that respondent may arrange affairs on basis of agreement, which may render variation unfair: A v. A (C.A.), 2003–04 GLR 123

parties’ agreement to terms of financial settlement on judicial separation by consent strong evidence that in fact reasonable at least to parties: A v. A (C.A.), 2003–04 GLR 123

principles originally agreed by parties in making consent order to be followed on variation unless (a) agreement unfairly procured or made under misapprehension; (b) material change of circumstances; or (c) strong evidence that agreement operates unreasonably—court to consider whether variation precluded because of parties’ organization of financial affairs in reliance on original agreement—as welfare of children first consideration, variation to give first consideration to discharging obligation to make reasonable financial provision for children: C v. C (Royal Ct.), 2007–08 GLR N [13]

principles to be applied—(a) to consider on basis of means at time of application and to make assessment de novo; (b) to consider changes in income of both parties and changes in responsibilities or liabilities, including obligations to new family; (c) to consider circumstances of party paying maintenance—entitled to balance responsibilities to existing family with proper aspirations for new; (d) financial mismanagement by payer may be relevant circumstance to which to have regard; (e) welfare of child of family under 18 first and most important consideration; (f) court not to enforce arrears if over a year old unless special circumstances—to decide how to exercise discretion to enforce, not discretion to remit: F v. F (Royal Ct.), 2009–10 GLR N [11]

remarriage of payee—spousal maintenance payments do not cease as matter of law on remarriage of payee—presumption that payments to cease to be rebutted by payee: A v. B (Royal Ct.), 2017 GLR N [15]

secured periodical payments. See Financial provision—secured periodical payments

Foreign proceedings. See Children—assistance to foreign court. CONFLICT OF LAWS (Parallel foreign proceedings)

Gender reassignment. See HUMAN RIGHTS (Right to respect for private and family life—gender reassignment)

Illegitimate children. See Children—illegitimate children. Children—registration of births

Interim care requirement. See Children—care requirement

Interim community parenting order. See Children—community parenting order

Interim occupation order. See Financial provision—matrimonial home

Jointly owned property. See Property—jointly owned property

Judicial separation

separation by consent

court merely to be satisfied that terms of separation agreement reflect genuine desires of parties—more intensive scrutiny not necessary for purposes of supervisory jurisdiction, i.e. protect legal status of marriage, parties or children from inadequate support and vulnerable from coercion—jurisdiction of court continues throughout judicial separation and has power to make further financial orders if necessary: A v. A (C.A.), 2003–04 GLR 123

no grounds need to be shown, since consent itself justification for decree: A v. A (C.A.), 2003–04 GLR 123

Légitime. See SUCCESSION (Légitime)

Maintenance for illegitimate child. See Financial provision—children

Maintenance payments. See Financial provision—secured periodical payments

Marriage

citizenship

pre-nuptial agreement. See Financial provision—pre-nuptial agreement

Matrimonial home. See Financial provision—matrimonial home. Financial provision—property adjustment order

Mesher order. See Financial provision—Mesher order

Names

change of child’s surname

procedure and consents required for change of surname of child of unmarried, married or previously married parents: In re F (an infant) (Magistrate’s Ct.), 2005–06 GLR N [12]

change of woman’s name on marriage

if single woman claimant in Employment & Discrimination Tribunal marries during proceedings, entitled to ask that judgment be given in married name—decision should state details of change of name, perhaps stating after new surname “(formerly [unmarried name])”: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

Ouster order. See Domestic violence—ouster order

circumstances in which made

extremely serious and drastic order—only to be made ex parte in most exceptional circumstances—court to consider all circumstances including needs of children, conduct of spouses and their needs and financial resources—welfare of children not paramount: Husband v. Wife (C.A.), 1997–99 GLR 1

Parental responsibility. See Children—parental responsibility

Pensions. See Financial provision—pensions

Pre-nuptial agreements. See Financial provision—pre-nuptial agreement

Property

bank accounts. See BANKING (Accounts—joint accounts)

cohabitees

if one cohabitee provides all or most of funds to purchase property in which both cohabit, court may nevertheless, upon licitation, order equal division of proceeds of sale if both intend property to be held jointly—intention of joint ownership may be evidenced by transfer into joint ownership and registration of title in both names: Pirito v. Curth (C.A.), 2003–04 GLR 218

jointly-owned property

if cohabitee co-owner delays in complying with order for licitation, court may grant other cohabitee co-owner interim vesting order in respect of property in order to realize interest, after which debtor has no further interest in realty—to consider all circumstances, including delays, unnecessary litigation and justice of each party’s situation: Pirito v. Curth (Royal Ct.), 2003–04 GLR 571

law applicable

equitable presumptions of English law (e.g. advancement or resulting trust) not incorporated into Guernsey land law—applying Norman law principle, joint owners prima facie entitled to property or proceeds of sale in equal shares: Pirito v. Curth (C.A.), 2003–04 GLR 218

property adjustment order. See Financial provision—property adjustment order

Remarriage. See Financial provision—matrimonial home. Financial provision—variation

Removal of child from jurisdiction. See Children—removal from jurisdiction

Residence order. See Children—residence order

Right to respect for private and family life. See Children—effect of deportation. Children—effect of deportation of parent. “Family life”. HUMAN RIGHTS (Right to respect for private and family life)

Security for maintenance payments. See Financial provision—secured periodical payments

Separation by consent. See Judicial separation—separation by consent

Shared residence. See Children—residence order

Split hearing. See Children—residence order

Summary judgment. See Financial provision—consent order

Trusts. See TRUSTS (Powers and duties of trustees—submission to foreign court)

Unmarried couples. See Property—cohabitees. Property—jointly-owned property

Unreasonable behaviour. See Divorce—unreasonable behaviour

Valuation of assets. See Financial provision—valuation of assets

Variation of financial provision. See Financial provision—variation

Welfare principles. See Children—welfare principles