11 May 2020
HNW divorces - can you enforce the terms of an English order in Jersey?
Many practitioners will appreciate that Jersey is a self-governing Crown Dependency with constitutional rights of self-government and judicial independence. It follows that orders made in the courts of England and Wales are not enforceable as of right in this jurisdiction. We focus in this article on three common scenarios we see when such cross-jurisdictional considerations arise and the steps you can take to ensure that the terms of such an order are honoured.
Ancillary relief – enforcement of orders against real assets
Jersey has been a leading international financial centre (IFC) for more than 50 years and is at the forefront of wealth management, funds, capital markets and banking. Numerous UK residents have investments located here. We looked at issues which can arise in respect of Jersey trusts in our last article, however when dealing with HNW and UHNW families, it is not uncommon for other valuable assets to also be located within this jurisdiction, such as real estate, interests in real estate, yachts, and monies invested in private wealth investments portfolios and funds. It is therefore unsurprising that, within the context of ancillary relief proceedings, English orders do sometimes purport to make orders against Jersey situs assets.
Our advice to the parties and third party institution on receipt of such orders is simple – in general they are, in themselves, not enforceable. It is important to note that this advice extends to injunctive relief granted by the courts of England & Wales which purports to extend to Jersey and assets sited here. A reciprocal order will need to be obtained from the Royal Court of Jersey to ensure the order’s enforceability. Whilst this will for all intents and purposes be an application for a mirror order, the Royal Court will need to be satisfied as to the merits of the application. This is unlikely to require a full rehearing of the proceedings; the Royal Court is guided by the principle of comity. This means that although the Royal Court will review the merits of any stand-alone application by reference to principles of local law, the terms of an English order are usually accepted and “mirrored”.
The majority of third party institutions upon whom you might serve an order purporting to cover Jersey situs assets will be professional financial services businesses; they will usually have some experience of dealing with such matters and will almost certainly engage Jersey Advocates in early course. The usual approach adopted by these institutions is a neutral one; however, they could of course find themselves in breach of regulatory requirements by failing to follow client instructions to deal with funds in their control. For this reason, it is really important to ensure you have joined up Jersey legal advice at an early stage and are ready to issue an application in Jersey as soon as possible once judgment has been handed down.
Children proceedings – leave to remove
The enforceability of English orders in Jersey is also important in the context of children proceedings. As you have already read, Jersey has a leading financial services industry and that, coupled with a good work life, balance means that many professionals relocate to the island every year with their children. To make such a move requires both parents' consent and, where this is not forthcoming, leave to remove proceedings (in England) often follow. It is often helpful to your client’s case to be able to present evidence that any order made by the English Court (particularly terms relating to contact with the parent who is to remain in England) will be honoured and enforced in Jersey.
Again, the English order itself will not be enforceable in Jersey and steps should be taken to register the order (in effect, a mirror order). If the order has been made under Part 1 of the Family Law Act 1986 (a familiar piece of legislation for many of you) it can be registered in Jersey without consideration of the merits, although it is important to note that any provision(s) in the English order regarding enforcement will not be recognised. Instead, the Royal Court will have its own full range of enforcement powers available to it.
Procedurally, the English Court should send a copy of the Order, any prescribed particulars of variation, if relevant, and a copy of the accompanying documents to the Royal Court. You may be required to make an application for this to happen, but it is the court of primary jurisdiction that makes the request to the Royal Court. The Royal Court has been clear that it has the inherent jurisdiction to make such mirror orders. The mirror order will, however, only take effect once the child comes within the jurisdiction of the Royal Court.
Importantly, mirror orders enable parties to plan for their future, secure in the knowledge that the Royal Court will support the orders already made in England.
Where a maintenance order has been made in England or Wales, a question of enforceability may arise should the payer move to Jersey and default on his/her payments.
Where such an order is in place, the Greffier or Registrars of the Family Division of the Royal Court of Jersey (our family judges) have the power to register the order within this jurisdiction on receipt of a certified copy of the order. It is important to note that this will likely need to be obtained from the Court which made the order. Before making such a registration, the Registrar is under a duty to take steps to ascertain the payer’s residency in Jersey. If the court that made the original order was of unlimited jurisdiction then the order will be registered in the Royal Court. If the court that made the original order was of limited jurisdiction then the order will be made in the Petty Debts Court.
An original version of this article was published by ThoughtLeaders4 HNW Divorce, April 2020.
© Carey Olsen 2020.