Maintenance Orders: Registration in Public Registry: Law drafting instructions

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A decision made 21 January 2016:

Ministerial decision reference MD-C-2016-0005
Decision summary title Law Drafting Instructions relating to registration of maintenance orders in the Public Registry
Decision summary author	Senior Legal Advisor, Law Officers Department	Is the decision summary public or exempt?		Public
Report title Law Drafting Instructions relating to registration of maintenance orders in the Public Registry
Report author or name of person giving report	Senior Legal Advisor, Law Officers Department	Is the report public or exempt?		Public
Decision and reason for the decision The Chief Minister decided to instruct the Law Draftsman’s Office to prepare draft legislation to implement a proposal that orders of the Family Division of the Royal Court for maintenance should be able to be registered in the Public Registry, thus giving security to the recipient over immovable property of the payer for ongoing payments under such orders. The reason for enabling maintenance orders to be registered is to give the receiving party, who is owed maintenance, security dating from the registration of the maintenance order, thus ranking above creditors who have since registered their claims on the payer’s property. The vice in the existing legislation is that the receiving party is liable to lose out to subsequent creditors who are able to obtain a hypothec that gives them priority in subsequent bankruptcy proceedings. The ability to register the maintenance order and so create a hypothec will ensure that the recipient party secures his/her rightful ranking amongst the creditors in a bankruptcy affecting the immovable property thus charged. This proposed reform was supported by the Jersey Law Commission and has also been recommended by the Legislation Advisory Panel.
Resource implications There are no resource or manpower implications.
Action required Law Draftsman to draft necessary short Law in preparation for the Chief Minister to lodge au Greffe.
Signature			Position Senator I J Gorst Chief Minister

Date signed			Effective date of the decision

Maintenance Orders: Registration in Public Registry: Law drafting instructions

Law Drafting Instructions relating to registration of maintenance orders in the Public Registry

The Chief Minister has decided to implement the proposals put forward by the Jersey Law Commission (the Commission) in this regard. The following is intended to serve as a brief to the Law Draftsman.

The Commission’s proposal will obviate the need for the existing provision in Article 29(1)(d) of the Matrimonial Causes (Jersey) Law 1949 to which the Commission referred (and its later counterpart in Article 49(1)(d) of the Civil Partnerships (Jersey) Law 2012).

For ease of reference here is Article 29(1) of the Matrimonial Causes Law [1] (sub-para (d) to be deleted because it will be subsumed by the new all-encompassing provision referred to in paragraph 15 below):

“29 Financial provision for party to a marriage in cases of divorce etc.

(1) Where a decree of divorce, nullity of marriage or judicial separation has been made, the court may, having regard to all the circumstances of the case including the conduct of the parties to the marriage insofar as it may be inequitable to disregard it and to their actual and potential financial circumstances, order –

(a) that one party to the marriage shall pay to the other party to the marriage during their joint lives or for such other term as may be specified in the order such annual or other periodic sum for the maintenance and support of that other party as the court may think reasonable;

(b) that one party to the marriage shall pay to the other party to the marriage such lump sum or sums as the court may think reasonable whether or not any sum is ordered to be paid under sub-paragraph (a);

(d) that where security is given under sub-paragraph (c), the order of the court by which such security is given shall take effect upon registration in the Public Registry as a judicial hypothec upon the immovable property of the person against whom such order of the court has been made as if it were an act or judgment of the Royal Court to which Article 13 of the Loi (1880) sur la propriété foncière applied.

The ‘all-encompassing provision’ just referred to is the provision by which the Royal Court will be empowered, of its own motion or on application by the recipient [2], to direct that any order [3] for the payment of a sum, or periodic sums, of money made by the Royal Court –

(i) under Article 25, 29, 31, 32 or 33 of the Matrimonial Causes (Jersey) Law 1949; or

(ii) under Schedule 1 to the Children (Jersey) Law 2002; or

(iii) under Article 44, 49, 51, 52 or 53 of the Civil Partnership (Jersey) Law 2012,

be registered in the Public Registry.

It is for the Law Draftsman to decide, but it may be that, rather than insert separate all-encompassing provisions in each of the 1949, 2002 and 2012 Laws just referred to, a single amendment of the Maintenance Orders (Enforcement) (Jersey) Law 1999 itself may be the appropriate legislative vehicle – after all, this proposal is one that relates to enforcement of maintenance orders as defined in that Law. The alternative, as I say, is to amend each of the above Laws and to repeat in each case the power of the Court to order registration in the Public Registry of the relevant orders under that Law.

Whichever of these routes is chosen by the draftsman, the wording of the deleted Article 29[49](1)(d) – ~~see~~ ~~paragraph 14~~ ~~above~~ ~~[& footnote 6]~~ – needs to be echoed to some extent. In other words, the all-encompassing provision will not merely empower the Royal Court, of its own motion or on the application of the recipient [4], to direct the registration of relevant orders in the Public Registry, it will go on to provide that the order of the Court shall take effect upon such registration as a judicial hypothec upon the immovable property of the person against whom the order has been made as if it were an act or judgment of the Royal Court to which Article 13 of the Loi (1880) sur la propriété foncière applied.

Moreover, ~~as already mentioned in paragraph 7~~ ~~above~~, provision will need to~~must~~ be made on similar lines to the Social Security Hypothecs (Jersey) Law 2014 as to precisely that which is secured by the hypothec i.e. such amounts as accrue from time to time that a payer [5] is liable to pay pursuant to the relevant order of the Court.

~~It was noted in paragraph 10~~ ~~above~~ ~~that t~~The Commission ~~had~~ stated that if the amount of a periodic payment was varied by a subsequent order, that order would also need to be registered. The Commission is right to emphasise this, but I don’t believe that an express provision to this effect is required: only if the Court has directed registration of a subsequent order will that order confer a judicial hypothec.

~~It was also noted in paragraph 10~~ ~~above~~ ~~that~~ tThe Commission also~~had~~ emphasised that registration in the Public Registry would be able to be cancelled only by further order of the Court. It is thought that~~n my view,~~ express provision to this effect will be required. ~~I need say no more in terms of drafting instructions in this respect.~~

By way of a recap of the drafting instructions:

Repeal Article 29(1)(d) of the Matrimonial Causes (Jersey) Law 1049 ~~[paras 13 & 14~~ ~~above~~]
Repeal Article 49(1)(d) of the Civil Partnership (Jersey) Law 2012 ~~[paras~~ ~~13 & 14~~ ~~above~~ ~~& footnote 6]~~
Empower Royal Court of its own motion or on application by the recipient to direct that any order for the payment of a sum, or periodic sums, of money made by the Royal Court under –

Article 25, 29, 31, 32 or 33 of the Matrimonial Causes (Jersey) Law 1949;
Schedule 1 to the Children (Jersey) Law 2002;
Article 44, 49, 51, 52 or 53 of the Civil Partnership (Jersey) Law 2012,

be registered in the Public Registry ~~[para 15~~ ~~above~~]

Make provision that the order of the Court shall take effect upon such registration as a judicial hypothec upon the immovable property of the payer as if it were an act or judgment of the Royal Court to which Article 13 of the Loi (1880) sur la propriété foncière applied ~~[para 17~~ ~~above~~]
Make provision that the hypothec secures such amounts as accrue from time to time that a payer is liable to pay pursuant to the relevant order of the Court ~~[paras 7 and 18~~ ~~above~~]
Make express provision that registration in the Public Registry may be cancelled only by further order of the Court ~~[para 20~~ ~~above~~]

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[1] And here is Article 49(1) of the Civil Partnerships Law (sub para (d) now requiring to be deleted):

49 Financial provision for party to a civil partnership in cases of dissolution etc.

(1) Where an order for the dissolution or annulment of a civil partnership, or a separation order, has been made, the Court may, having regard to all the circumstances of the case, including the conduct of the parties to the civil partnership insofar as it may be inequitable to disregard it, and to their actual and potential financial circumstances, order –

(a) that one party to the civil partnership shall pay to the other party to the civil partnership during their joint lives or for such other term as may be specified in the order such annual or other periodic sum for the maintenance and support of that other party as the Court may think reasonable;

(b) that one party to the civil partnership shall pay to the other party to the civil partnership such lump sum or sums as the Court may think reasonable whether or not any sum is ordered to be paid under sub-paragraph (a);

(d) that where security is given under sub-paragraph (c), the order of the Court by which such security is given shall take effect upon registration in the Public Registry as a judicial hypothec upon the immovable property of the person against whom such order of the Court has been made as if it were an act or judgment of the Court to which Article 13 of the Loi (1880) sur la propriété foncière applied.

[2] as defined in the Maintenance Orders (Enforcement (Jersey) Law 1999

[3] ~~See paragraph 4 above~~

[4] as defined in the Maintenance Orders (Enforcement (Jersey) Law 1999

[5] as also defined in the Maintenance Orders (Enforcement (Jersey) Law 1999