Originally published in the Jersey Evening Post, 14
Imagine if you will, that everything in the garden is lovely,
you and your soul mate have a nice home and great kids, some
indebtedness admittedly (but who doesn't these days?) when one
day the brutal reality of the recession knocks upon your door in
the form of the Viscount seeking to serve a bankruptcy order on you
or your partner.
At that moment, the harsh reality of losing the roof over your
head presents itself and you have to consider ways in which you can
protect your family and their home.
Jersey insolvency law in the 21st Century provides not only
special protection for the "matrimonial" home
where there is a spouse and children, but extends that protection
to civil partners, their families and the civil partnership home
with the coming into force of the Civil Partnership
(Jersey) Law on 2nd April 2012.
For insolvency purposes the matrimonial home is taken to be the
property used as the only or main residence of the family and the
same term is applied to the civil partnership home.
It is worthy of observation that both a "spouse" and
civil partner also includes a person to whom the bankrupt is
alleged to be married or in a civil partnership with by
"habit and repute".
With a view to preserving the property for the family, it is
essential that the solvent partner considers making a timely
application to the court and to ask the court for an order to allow
them to stay in the family home.
It is reassuring to note that the duty of the court in making
any order is to give first consideration to the appropriateness of
reserving the matrimonial or civil partnership home for the
occupation of the spouse or civil partner and any children of the
However, the court has the power to make various orders in
relation to the property upon hearing an application by the solvent
partner or spouse.
These orders include:
awarding the property to the applicant partner (subject to
ordering a sale of the property and how the proceeds should be
permitting the family to occupy and enjoy the property for a
defined period of time.
The court has to balance a number of competing factors (the
family's circumstances) which would include:
the income, earning capacity, property and other financial
the ages of all involved; and
the financial resources of the debtor's dependants (if
This updating of the law means that Jersey continues to
recognise the importance of the various family units which exist in
the modern world. Jersey can be justly proud that any
"couple" can seek to apply to the Royal Court
for it to recognise and protect the family home.
A Jersey "person's" home is truly their
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
A commentary on the UK Supreme Court judgment in the joined cases of Rubin and another v Eurofinance SA and others and New Cap Reinsurance Corporation (in liquidation) and another v A E Grant and others  UKSC 46, which has been anxiously awaited by the UK's restructuring and insolvency community.
Insolvency practitioners have a duty to take reasonable care to realise the best price on the sale of property within the insolvent estate, but, however, there is a discretion as to how this duty is discharged.
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