Jersey Unreported Judgments

[2010]JRC157A

royal court

(Family Division)

1^st September 2010

REASONS FOR THE REFUSAL OF THE GREFFIER'S CERTIFICATE

Advocate M. P. Renouf for the Petitioner.

Mr C. G. Hillier for the Respondent.

judgment

the deputy REGISTRAR:

1.        A petition dated the 12^th August, 2010 was filed at Court on the 13^th August, 2010 on the grounds that the respondent and petitioner have lived apart for a continuous period of one year immediately preceding the presentation of the petition and the respondent consents to a decree being granted.

2.        On the Form 4 the respondent indicated he consented to the divorce and did not defend it.  However he wrote:-

"I wish to make the Court aware that the petitioner and I went to London for a few days during late November to 1^st December 2009.  We stayed at a friend's home and shared the same bed.  Marital relationships took place.  The reconciliation was not a success and we continued to live apart and still do.  I consent to a decree being granted."

3.        On the filing of an application for a Greffier's Certificate, the petitioner's lawyers were informed that the application would be rejected, and that therefore no Greffier's Certificate would be issued.  Both the lawyers for the petitioner and respondent then e-mailed the Court requesting that the Greffier's Certificate be granted so that the matter could be placed in the undefended list on the 8th September, 2010.

4.        Section 7(2)(a) of the Matrimonial Causes (Jersey) Law 1949 ("the Law") as amended provides that the parties to the marriage must have lived apart for a continuous period of one year immediately preceding the presentation of the petition.  In England a petition is presented on the ground that the marriage has broken down irretrievably and on a separation the petitioner must satisfy the court that the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;. Section 2(5) of the Matrimonial Causes Act 1973 ( "the Act") provides as follows:-

"(5)     In considering for the purposes of section 1(2) above whether the period for which the respondent has deserted the petitioner or the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding six months) or of any two or more periods (not exceeding six months in all) during which the parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period of desertion or of the period for which the parties to the marriage lived apart, as the case may be." (Emphasis added).

5.        The Law does not make such a similar provision and therefore there must be a continuous period of one year living apart immediately before the presentation of the petition.

6.        The lawyer for the petitioner e-mailed the court with a letter attached and the respondent's lawyers e-mailed the court to say that the respondent had no objection to a decree being granted but "it was felt that we could not mislead the court as to the events that occurred during the period of separation."  It is common ground that in December 2009 the parties stayed in the same room in England at a friend's house for a few days and sexual activity took place, albeit that the petitioner's lawyers write on her behalf that she was a "reluctant party although the activity may have fallen short of actual rape".  There is no definition in the Law or the Matrimonial Causes Rules 2005 of "living apart".  The petitioner's lawyers suggest that simply visiting friends is not sufficient to alter a person's place of residence or become a change of home, "but had they spent the time in the home of either one of them, it could reasonably be argued that they had not been living apart for the purposes of Article7(2)(a)".  I think it right that spending time in the home of either or one of them in such circumstances does mean that they are not living apart at that time, but I do not accept that if they are visiting friends or going on holiday together with sexual activity taking place, rather than staying in a home of one of them, means they are still living apart at that time.  The petitioner's lawyers also suggest that as neither of them was resident in England at the time, neither of them was "living" in England, so they could not be construed as living together.  However, just because they were not in Jersey and in England does not mean they were living apart.  The respondent on advice it seems from his lawyer wrote "the reconciliation was not a success."  Although the petitioner's lawyers argue on her behalf that the stay in England "in the same room was not an attempt at reconciliation but rather an expedient" in order to "get him to access the storage facility and transport her possessions to Portsmouth" she was prepared to put herself in the situation of sharing a room and having sex with the respondent who considered that they were back together as a couple.  I am accordingly refusing the application for a Greffier's Certificate.

Authorities

Matrimonial Causes (Jersey) Law 1949.

Matrimonial Causes Act 1973.

Matrimonial Causes Rules 2005.