“ The new law provides for a new legal relationship for same sex couples, enabling them to enter into binding partnerships akin to marriage, giving civil partners the
same rights and responsibilities as married couples as far as possible ”
amends the Children (Jersey) Law 2002 and the Adoption (Jersey) Law 1961, giving civil partners rights and responsibilities in respect of children of the family, and giving civil partners the right to adopt children.
Succession The new law also amends the Wills and Successions (Jersey) Law 1993 by including the home of civil partners in the definition of a matrimonial home for the purposes of inheritance. However, there is also a much more significant change anticipated in respect of succession following the passing of the Civil Partnership legislation. Jersey customary law is the foundation of Jersey law and is one of the distinctive features of Jersey setting it apart from England. Dower and viduité are customary law concepts which have been part of Jersey law for hundreds of years.
Dower bestows on a widow the right to the use of a third of her deceased husband’s immoveable property (land) for life, subject to looking after it and not misbehaving. Vidutié gives a widower a life interest in all of his deceased wife’s immoveable property, but only if they have had a child together and only until his remarriage (unlike dower). In each case the rights to apply for these life interests only arise in cases where there is a will of immoveable property. As these two concepts give different rights to men and women it is not possible to incorporate them into the new law, so the plan is to abolish viduité and make dower available to both
husbands and wives and to civil partners.
This is a way around an anomaly, but if changes are going to be made at all, it would make much more sense to either abolish dower and viduité altogether, or to make the position on testate succession (where there is a will) the same as on intestate succession as in the Wills and Successions (Jersey) Law 1993 where either surviving spouse and, following the new law, surviving civil partner, gets a right to a life interest in the former matrimonial/civil partnership home. Perhaps an opportunity lost?
Taxation The Civil Partnership Law also changes taxation law. Again, there would seem to be a lost opportunity here too. Jersey income tax law is currently archaic in that wives are generally included on their husband’s tax return. This clearly posed a problem in the context of civil partnerships. However, instead of abolishing an outdated and discriminatory practice for all Jersey residents, the States have invented a complicated system of civil partner “A” and civil partner ”B”, A being the older of the couple! What a crazy system to adopt, when adults should be responsible for their own taxation, especially as Jersey does not have a community of property regime, meaning that all people can own property in their own names whether they are attached or single.
Conclusion The Civil Partnerships (Jersey) Law is in itself a very good thing. It shows
the world that Jersey is a tolerant and progressive jurisdiction and its passing makes some positive amendments to other parts of the law. However, it is a lost opportunity. The law has to be changed in several areas, but more could have been done to make more significant changes to family law, succession and taxation law.
Barbara Corbett is a specialist family lawyer, collaborative lawyer, mediator and a partner at Hanson Renouf. She is a fellow of the International Academy of Matrimonial Lawyers and a member of Resolution and the Jersey Family Law Association.
www.hansonrenouf.com
CSR - Helping others Page 23
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