Family Law Some people think it is strongly connected to the Catholicism system in these countries.

Worksheet 1: Introduction Jamaica was the first to pass such legislation which removes all the discrimination against
September 3, 2007 children born outside f marriage; it is equality legislation.

Look to Introduction slides for the information spoken of in this class. The wives/married women are usually the first to complain about this legislation and this
is b/c there is a strong ideology that marriage gives status i.e. they should have the legal
Family Law is concerned with the law that governs intimate adult relationships in the Caribbean. access/right to the husband’s property. This legislation allows children from outside
Our goal is to learn the law well in one territory and to critically evaluate regional developments relationships access to property of father.
and trends in family law.
Do we want family law to be normative or reflective?
She mainly highlighted the material that we were given and how the teaching will be organized.
Everybody does one 2hr Seminar on either Monday or Tuesday. Also there will be a one 2hr ♦ Matrifocal- our families are matrifocal rather than matriarchal which means that women
Workshop every other week on either Monday or Wednesday @ 4-6pm. Office hours are after figure very prominently in leadership of families and households. This does not mean that
the Seminars. There are 7 worksheets. men are not present, and even if they aren’t they often play a role in for example visiting
relationships.
Putting Family Law in Context: Sources, Functions, System and Trends ♦ Household & Family different

Diversity of Caribbean Families: Key Sources of Family Law are:

1. Legislation- you can’t get around statute in this course.
♦ Dual Marriage System- the Caribbean has this and it means that there is a de jure spouse 2. Cases/Common Law- these mean less than they use to, however the property
(wife) and a de facto/outside lady (may-ti). In this system the girlfriend has her place but worksheet focuses a lot of cases.
she must not overstep her place in any given situation. In the context of divorce we know 3. Constitution- still the highest law and family law is usually in the private law
that many divorces have infidelity but very few divorces are filed on the grounds of section but the regulation of family law has a public law concern.
adultery. The problem for most women is that is not my husband is cheating but the 4. International Law- this is important in family law (CRC- children’s rights
violation of some norm. for e.g. giving the may-ti more money or taking the illegitimate convention, CEDAW- women’s convention etc) because there are international
child to the same school. law obligations that matter.
♦ Fluid Family Forms- marriage is not incompatible with other relationships as many 5. Custom
people are engaged in more than one relationship.
♦ Strong Gender Ideologies- family life has very strong gender ideologies. For e.g. people Family Law is meant to:
believe that both men and women have their respective roles; women take responsibility ♦ Regulate conduct: say what you can or cannot do. For e.g. you are not allowed to batter
for the domestic assistance in the home or pay person who assumes responsibility for such someone or if you want to get a divorce this is the manner in which you have to go about
and child bearing. There are still ideas that men have fundamental responsibilities to take it. It define rights & obligations b/w family members
care of economically, thus financial responsibility. It is natural for men to love more than ♦ Protect the weaker members in the family; usually children and women; who are the more
one woman- an engraved ideology as well. vulnerable family members depend on the context and what we know about vulnerability.
♦ Inside and Outside- we speak of families in the Caribbean has ‘insides and outsides’- ♦ Resolve Disputes and adjust relationships where they break down; we are interested in
these are fluid boundaries meaning: inside: family connected to marriage; outside- family relationships that don’t work- we have to figure out what happens when someone wants a
formed outside of marriage. No Status of Children Legislation in Bahamas, Dominica or divorce, what happens where there’s domestic violence or when one partner dies etc.
St Lucia, thus if you are born outside of marriage you are still illegitimate. Why is this?
1
 Should the courts be able to suggest ADR or mandate counseling where domestic violence
has occurred? Look at the last statistics about representation; 98% of applicants and 97% of respondents are not
♦ Symbolic & Normative- a core feature of family law is that it wants to make a statement; represented by a lawyer. There are problems when people don’t have legal representation b/c it
it is symbolic. Look to pg 12 on worksheet; there is some basic information about statute means that they are less aware of their legal rights and often, there is a tension b/w those who
that helps you to understand the statute. Normative means that they are sending a message believe that family matters should be resolved by consensus an those who feel strongly that rights
that they are not accepting domestic violence and that the statute is going to deal with are involved and that they should have lawyers to help them protect those rights.
perpetrators very harshly.
Case of Francois v AG 2001: Francois’ wife gets a protection order against him and rather than
The Family Justice System being completely ashamed and embarrassed that he violated his wife he comes to court and say
The Family justice system is fragmented and dual. There are two separate spheres of family that the legislation is unconstitutional.
justice; there is the superior court/supreme court/high court which deals with matrimonial matters
and the summary courts also known as magistrate’s courts. In some places like Belize, St. Vincent, If lawyers are required then not every person would be able to bring an action to court. There are
Jamaica and St. Lucia they are called the family court as well and they deal with the poor and all kinds of tensions around the role of advocacy and lawyering in family matters.
unmarried.
T&T has a new model- will be spoken of at a later date.
Do you know the difference b/w these systems? What’s different about the way in which the
proceedings take place? The summary court/family court is more informal than the Supreme Key Trends in Family Law:
Court. ♦ Children at the Centre: even where the courts and the law are regulating the relationship
of adults, children are increasingly the centre of concern. So even where they are allowing
Example- suppose you wanted to get child support which court would you prefer to go to if you people to get divorce for instance, they are saying no, no, no you can’t get that divorce
could go to either? The High Court: why? Even in places where there are in camera proceedings, until you tell me that the children are taken care of.
everyone believes that the HC is considered to be more dignified and more private.
Or another instance- where they are seeking a protection order, the court may say that you
Primacy of marriage: HC matrimonial jurisdiction is ideologically (not practically) the centre of are even more likely to get that order if children are in the household as statistics show
family justice whilst summary jurisdiction is residual and secondary. Marriage is ideologically that it is generational; such person who experience violence or live in households where
still the centre of family law and justice in Caribbean. Although 80% of family justice takes place there is violence are more likely to become violent. Thus the presence of children may
in magistrates’ courts that justice is considered to be residuary. (Look on slides pg 4). anchor the protection being given to adults. Same thing in property dispute- who was
taking care of the children must be taken into account when deciding how the property
To give you a sense of what courts deal with family justice, we look at St. Lucia for e.g. where should be divided.
almost ½ of he people coming to the court relate to child support. Almost a 1/3 coming to the
court are coming b/c they are in a violent relationship. 93.8% (this figure much lower in other ♦ Role of Fault Reduced: the role of fault is diminishing significantly in family law. Some
countries) are resolved by the order of the court. This suggests that the court is the centre of family factors to take into account when seeking divorce- adultery, cruelty, desertion, (some
justice and that the matters aren’t being resolved by mediation as only 1.3% were resolved by statutes will take into account bestiality, sodomy, insanity). That has been significantly
consent of the parties. reduced. The 2 territories which have stepped out furthest ahead are Jamaica and
Barbados; in these territories divorce is no longer linked to fault, it is based on the
It is believed that lawyers make family justice a bit more complicated as they come with a very separation for more than 12mths. The first set of people to get divorce with the passing of
adversarial attitude. Instead the judges believe that instead of encouraging contentiousness they the legislation was Prime Ministers. Do you think that this is a good move to take fault out
should construct relationship that could continue productively. of divorce?
2
 Caribbean as they were told that they would have to marry according to the Christian principles.
♦ Role of Fault Increased with respect to Domestic Violence; there is a shift towards conduct (Read slides)
consequently mattering more in the context of domestic violence. (It matters less in
relation to divorce and property) African Marriages: marriage was religious in the colonial era. Could only be married by
members of the establishment church. Colonial officials were worried about the validity of
♦ Private Ordering Encouraged- it’s the idea that rather than the court deciding, they should African marriages performed during slavery by missionaries who were not associated with the
encourage the parties to come to their own decision or into contract. The recent Jamaica established church with no standing as marriage officers. They wanted to regularize these ‘de
Property Rights of Spouses Act makes it clear that they want to encourage pre-nuptial facto marriages’ and retrospectively legitimate the children born to these unions. After slavery
agreement, anti-nuptial agreement and pre-cohabitation agreement. dissenters marriage legislation was enacted to allow non establishment churches becoming
marriage officers and to regularize ‘de facto marriages’ there were various schemes to encourage
♦ ADR much more important especially with regards to children. marriages in the 20th century. Most famous is mass marriage movement in Jamaica.

♦ There are structural changes taking place in the family justice system. The T&T model of Indian Marriages: when the first Indian immigrants arrived in the Caribbean, they ha to marry
a family court will be the one which people will talk about. according to the Christian rites to be legally recognized. Few did. A form of civil marriage was
first permitted. Then immigration legislation allowed the immigrants to marry according to their
♦ Jamaica started off ahead in family law reform. First major form of family law legislation own religious rites and these marriages would be recognized once they were later registered. Only
was Status of Children Legislation. T&T is definitely the leader in family law reform. in the mid 20th century were Hindu and Muslim religious leaders allowed to marry members of
their faith as marriage officers. Even then Muslim marriages were not on the same footing as
♦ Legal aid is being recognized more and more as being necessary in the Caribbean. Christian marriages.

Worksheet 2: Marriage Henry v Henry 1959-(read slides): Mrs. Henry married Mr. Henry in 1942 in accordance with the
provisions of the Muslim Marriage and divorce Registration Ordinance. That Act legitimated the
Turn to pg 28: on the left hand side a summary of what the worksheet includes and then a guide children born to registered Muslim marriages. A woman married in accordance with the statute
as to what really matters. Overview of legal remedies- simply read the worksheet. 4 asterisks- could apply for child support using matrimonial legislation. Mrs. Henry was seeking spousal
more detail is required- e.g. Recent DV Legislation and DV & HR. maintenance from her husband on the ground that he willfully neglected to maintain her, pursuant
to the Separation and Maintenance Ordinance. Even when they allowed marriages to be
Turn to pg 19: every week b4 a worksheet it tells you what to do for the following class. registered, they were treated the same as Christian marriages.
Turn to page 21: all the legislation for every single territory is there. The key is the objective of
the worksheet. The Appellate Division of the SC of T&T in 1959 ruled that she was not a married woman in
terms of that statute b/c the only kind of marriages entitled to that relief were those which are
Page 43-at the end of worksheet there is a list of things which you can check. Pg 44: there are monogamous in the Christian sense. This was rectified by legislative reform later. This signals
exercises and preparation for the next worksheet. that when even when people are allowed to marry, their marriages aren’t treated equally.

Incidents of marriage: Legal Connotation There are some key elements/incidents of marriage worth noting:
Marriage is not a straightforward thing in the Caribbean. Marriage came quite late to Africans. ♦ Unity of the Spouses: the old common law rule was that the husband and wife was one
Marriage is a very fluid concept where at one time only Anglican priests could marry people. This in law, and that one was the man. As a result of that, there was a rule that a husband
was slowly changed. (Read slides). Marriage has been equally problematic for Indians in the couldn’t rape his wife. It took the case R v R to challenge that idea and the norm at common

3
 law changed to the idea that marriage is a partnership of equal rather than a unity b/w two Couple of questions:
people. There has been a significant shift away from this idea. ♦ Why do people marry? B/c of love or status?
♦ Consortium: is the living together and everything that flows from it; people who have a ♦ Should it be based on contract or a status which is the same for everybody?
common home, share a common life. It used to mean that the husband was entitled to the ♦ Should there be more or less regulation? Should we abolish marriage? Should we focus
sexual services of the wife and controlled the wife in certain instances but now we have a then on relationships of dependency? Rather than protecting only those that are married,
more enlightened idea. There is this old case Llewellyn v Llewellyn where the husband on let’s also protect others that are not married.
many occasions abused the wife (e.g. boxing her, beating her) and the judge said that the
abuse of the wife was the ‘fair wear and tear of marriage’. Less Regulation: abolish marriage?
Treat marriage as a private matter ‘no more regulated by law than friendship or entry into a
Consequences of Marriage: marriage has a number of consequences particularly for children. In religious order.’ Support obligations would flow from dependency not statutes; People could also
St. Lucia and Dominica it confers legitimacy on the children and it will allow children access to enter into contracts; focus on parenthood and not marriage.
their parents particularly father’s economic resources.
More Regulation: extend regulation to unions other than marriage?
Marriage has certain consequences for property and money (will be explored later) such as giving It’s the reality; people believe they have rights and duties towards each other in non-marital union;
access to citizenship and insurance rights. Generally married partners have a duty to support each the level of commitment is not necessarily different; the law does not affect choices people make,
other. It is not equal for men and women in most places. In some places like Barbados, unmarried protect vulnerable family members.
partners have a duty to maintain each other, but not in T&T. On death, surviving spouse has the
right to succeed to the estate of someone who dies intestate. So do unmarried cohabitants in some Countervailing arguments:
instances. The need to protect the institution of marriage; the law should direct not reflect social change;
private autonomy.
What are the Legal Requirements for Marriage?
♦ The first thing is that it must be a man and woman biologically. Corbett said that sex was Prepare exercise 1 on pg 18: learning to read. Read newspaper clipping and think about its
fixed at birth and could not be changed. It is important b/c if it is a woman by virtue of a significance in Family Law.
sex change, the case of Corbett v Corbett- says that it is still a man. But there is interesting
case law which suggests that that may not be the appropriate approach and in the EU they
have now accepted that post operative transsexuals are to be treated consistently with the
gender that they have chosen. (Could the rule be constitutionally challenged as breach of
protection of family life, protection against discrimination?)

♦ There must be only one man and one woman- the law doesn’t allow bigamous
relationships.

♦ Must reach a minimum age,

♦ Must be within prohibited degrees- that is, can’t marry brother/ sister, and

♦ It should be voluntary.

4
Family Law the system which was now being used in other places and said that the ground of divorce is that
Worksheet 2: Marriage Cont’d there has been an irretrievable breakdown of the marriage. That ground can only be established
September 4, 2007 by proving that the parties have lived separately for 2 years. Thus, Jamaica modernizes its divorce
laws but does nothing to its property laws. So divorce can be more easily attained but there are no
Tracey wanted to give us an idea as to where we are based on the jurisdiction we are from and provisions determining what happens to the property on the breakdown of the marriage.
she decided to start with the most progressive Caribbean territory i.e. T&T.
It took over 20 years to pass the Property Rights of Spouses Act which is Jamaica’s most
T&T: territory that has been engaging most actively in family law reform; it isn’t consistent but significant recent law reform. This Act is quite unusual in the Caribbean b/c it introduces in a way
in some important ways, they are way ahead of the rest of the Caribbean. They enacted in 1999 a a form of community property. This law says that the family home is equally owned by the parties,
DV Act which has become the model for DV Legislation in the region. Every single Caribbean no matter who pays for it (unless it is a very short marriage). Not only married people have access
country as far as Tracey knows has modern DV legislation. Bahamas, T&T and Barbados were to this legislation, but persons who have been living together for at least 5 years.
the first and as a result of the fact that they were pioneers their laws had great deficiencies. T&T
modernized their 1991 law in 1999 whilst Barbados hasn’t modernized it and therefore it is one Therefore, Jamaica modernizes its property laws by creating a system of co-ownership of the
of the most outdated one. This year 2007, Bahamas has reformed its legislation. Everybody else family home and by extending that to persons who are in non-marital relationship. It also enacted
is somewhere b/w. a new Maintenance in the last 3 years which creates again a modern system of spousal and child
support making the responsibility one which is equally borne by men and women.
The other sphere, in which T&T stands ahead, is in protecting the right of an entitlement of
persons who are in other relationships, not a marriage. In 1998 T&T passed the Cohabitational Both these two pieces of legislation encourages private ordering: i.e. encouraging people to come
Relationship Act which gave cohabitational rights to cohabitants in relation to maintenance and to agreements about their property rather than going to court to have them to resolve it. It goes
property distribution. It also reformed in 2000 and earlier, its Succession laws to also give persons further than any other statute to encourage private ordering. T&T goes further than anywhere else
in other relationship access to property on the death of a partner. By contrast, T&T has done very to encourage ADR as well as to improve the structural features of family justice like family courts.
little to its Divorce laws.
Barbados: However Tracey thinks that Barbados should be considered as one of the most
T&T has what we are going to come to term a ‘mixed fault/no fault regime’ in which the ground important forerunners in family law reform b/c the Family Law Act of 1981 instituted more
of divorce is the irretrievable breakdown of the marriage but can be proved by either separation reforms at the same time than any other piece of family legislation in Caribbean to date. No other
or fault (respondents behavior, adultery, desertion for e.g.). So what we have are very modern DV single Family Law Act has transformed the face of family law in the Caribbean as much as this
and property laws and reasonably outdated divorce laws. legislation. Barbados was the first in the Caribbean to introduce no fault divorce in 1981 as
opposed to 1989 in Jamaica and nowhere else in the Caribbean has this purely no fault system.
Let’s add a third plank to T&T; which is that in addition to changing the substantive law it is There is still a strong feeling in the Caribbean that divorce should still be connected to fault.
reforming the administration of family justice. It has introduced a family court which is unlike
any other in the Caribbean and it has passed a mediation Act to facilitate mediation as an What else does Barbados do? It not only removes fault from Divorce, but it removes fault from
alternative to the legal resolution by the court of the dispute. everything else. Fault use to be an important basis for maintenance. Thus you could only get
maintenance from your husband if you had been innocent (for e.g. not committed adultery or left
Jamaica: this territory started family law reform in 1976 when the Status of Children Legislation him for no good reason in the eyes of the law or hadn’t been cruel to him) and if he in turn had
was passed. This legislation sets the background for modernizing family law to the Caribbean in been bad to you. So fault became the basis of maintenance but Barbados shifts that and it’s not
the post independence period. In that early mid-1970s period as well, a family law committee was about who is good and who is bad, but about who has the ability to pay and the need for assistance.
created which suggested that Jamaica should move to no fault divorce and should modernize its
property laws. As a result in 1989 Jamaica passed its Matrimonial Causes Act and it abandoned
5
The third element is that Barbados also introduces a much more modern way of resolving property Do you have any thoughts on the single (not married to anybody else for entire period of 5 yrs)
disputes. The legislation basically says that it doesn’t care who owns the property, it wants to look requirement? Some believe that it may compromise marriage and threaten marriage by allowing
at who contributed to the purchase of the property both financially and in terms of taking care of people who are in other relationships to also benefit notwithstanding that they are not married.
the family. It also places focus on the longevity and nature of the relationship, the responsibilities
and resources of the parties. Mr. X and Mr. Y have been together for 15 years. He is married to someone else and gets a divorce
4 years and 11months before he dies. He is not single for the full five years before the end of the
So the Barbados situation is that they throw out about 15 factors which must be considered and relationship (see the possible hardship that can be potentially caused).
then left it up to the court to decide how the property should be distributed. This contrasts with
Jamaica where as it relates to the family home, the system is fixed. It is not up to the judge of the Grenada (true of Dominica to some extent): one of the extraordinary things about these two
SC to say that (s)he contributed more or that he is going to award one of the parties 60/20% Caribbean territories is that there is no statute/legislation relating to matrimonial matters. In the
ownership. The rule is that except in exceptional circumstances, half belongs to each party. Supreme Court Act in these countries there is a reception clause. It says that in relation to all
matrimonial matters the law in Grenada or Dominica is the law as it was applied in the HC of
Which system do you prefer? The one (Barbados) which gives the judge discretion and factors to England on ‘x’ date.
consider or the Jamaican system which starts with a fixed presumption that each party owns half?
Matrimonial matters have always been the province of the HC / SC; the superior court. For e.g.
The thing that the Barbados Act is best known for is that it is the first Caribbean statue that in Belize the divorce law is still found in the SC Act. But there is a strong relationship b/w
provides for unions other than marriage where a man and a woman have lived together for 5 years. matrimonial matters and the Supreme Court jurisdiction. Thus to find out what matrimonial law
These persons are now assimilated to marriage and are treated exactly the same way as married apply in these territory, you have to find out the applicable law in the United Kingdom. They do
people in respect of their property, their children and in respect of DV. have more modern DV legislation and were both very influenced by the T&T Act.

The competing policy ways of resolving questions: Barbados assimilates unions other than St. Lucia: they are unique as their family law is found in their Civil Code due to the fact that they
marriage to marriage so that people who are together for 5 years get treated exactly the same way. have a hybrid system. They have a collection of laws, their primary laws being in the civil code
That is one approach but there is another approach in T&T Cohabitational Relationship Act which but b/c the English colonized St. Lucia later, they then added bits and pieces of other Acts. There
doesn’t assimilate you, it doesn’t give the same benefits as married people but creates a separate is therefore a fair measure of confusion about the content of family law in St. Lucia b/c there are
statutory regime for other unions. So rather than treat you exactly the same it now creates a new conflict b/w the two.
set of laws which are slightly different from those dealing with marriage. Thus you can assimilate,
or have a separate regime for other unions. Jamaica also assimilated in the Property Rights of One clear area of conflict is property. B/c St. Lucia has a civilian background; property is
Spouses Act. understood very differently from the rest of the Caribbean. In the rest of the Caribbean, husband
and wife are one and that superior person in the ‘one’ is the husband; that meant that married
Once you assimilate, the requirement for who can qualify will become very stringent. So once women had no right to own property in their own right or couldn’t enter into contracts on their
you treat the persons in other unions exactly as marriages, invariably you are going to say that own behalf. Thus there were married contracts- trusts: which were used by married women to
they have to meet a very high standard. So Jamaica for example says that they won’t distinguish. safeguard their interest and overcome obstacle imposed on them by law that didn’t allow them to
However if you create a separate regime you may allow for more flexibility. The T&T own property.
Cohabitational Relationship Act doesn’t require this b/c it is not the system that they are getting
exactly what married people get. A the end of the 19th century we have the Married Women’s Property Act where property
belonged in marriage to either the husband or the wife; marriage therefore has no effect on the
ownership of property. In other words, if the wife bought a car before marriage, upon the marriage
being dissolved the car still belonged to her.
6
 Marriage: the idea of marriage is central to the course. It is central to the extent that some people
I have been living with Jonathon as a husband and wife for the last 30yrs, J says that under this want to give non-marital spouses rights like married couples. Numerous questions arise and the
rule that what is yours is yours, what is mine is mine, I say to J that I am not buying that as you situation is very complex for instance when looking at the term ‘living together’. Is this affected
may be the owner at law, but I am a part owner in equity thus, you are holding this property on by infidelity? Does it have to be monogamous?
trust for me. One can’t just look to who legally owns the property; one has to now ask who the
owners at equity are. It usually has some consequences for people. Generally married partners have a duty to provide
economic support for each other; on death persons also have entitlement to the property of each
There are two kinds of trust that you are going to come up on. There is an express trust ie a trust other. Marriage can confer citizenship or belonger status on a spouse who is foreign born.
which someone thinks very careful of. Thus the law says that you must be certain of the intention, Yesterday we even mentioned insurance rights etc.
objects and the subject matter.
Question: requirement that marriage must be b/w a man and a woman: famous case of Corbett v
However there are another set of trusts which are implied. The trust needs the three certainties Corbett says that sex was fixed at birth and couldn’t be changed. There is now been decisions
and need to be valid as well but there are also formalities that should be complied with. They are from the European Court of HR that suggests that one ought to give full recognition to post
not of a settlor (person who owns the property) they are implied by the court of law. There are operative transsexuals; that they should be allowed to marry and to found a family based on their
two types of implied trust- resulting and constructive. The latter- the triggering element is assumed gender identity post surgery.
unconscionability, and it would be unconscionable for the legal owner to also be the beneficial
owner. Needless to say, after the MWPA- you had separate property of husband and wife nuanced The question which Tracey asks therefore is whether one could challenge constitutionally the rule
only by the trust. than marriage must be b/w a man and a woman. Are there any rights implicated by denying
persons of the same sex the opportunity to marry? Possibly Equality, but the question therefore
In Antigua & Barbuda, St. Kitts & Nevis and one or two other places, what you own on divorce becomes does your constitution protects against discrimination based on sexual
is no different from what you owned before: Helga Stoeckert v Geddes 1999. Geddes was one of orientation/discrimination.
the major shareholders in a major firm in Jamaica. One day the claimant got to her workplace and
realized that all her worthy possessions were on an open bed truck with a note that from the Is there any constitution where that is a reasonable argument to make? T&T- there is no closed
respondent was getting married to a younger woman. She was clearly upset and made the categories in this territory and we do have evidence that this is the direction in which they may
comment that if she had been married her position would have been better and therefore ant to go. Why is this? B/c of the CA decision in Surratt. A jurisdiction like T&T may facilitate
encouraged women to ‘get their ring’. the argument that there may be discrimination. Some constitutions speak however of a right to
family life. But one of the problems with relying on this right is that is found in the opening
This was a clear misunderstanding as her position in fact wouldn’t have been any different if she section and therefore you would have to overcome the difficulty of enforcing the OS of the Bill
was married. One of the key things to remember is that marriage in and of itself without the of Rights.
intervention of statute does not change your status. However legislation (after 1999 when the case
was decided) has intervened in many territories by saying that at the end of the marriage we will Why do people get married?
allow the courts to redistribute property. ♦ Religion
♦ Companionship
In St. Lucia the position is different. Marriage immediately puts you into something which we ♦ Citizenship
call a ‘community’. Once something is deemed to be community property it is owned jointly. ♦ Custom
Thus marriage does affect ownership of property. ♦ Economic stability

Men and women marry for different reasons. Do we need more regulations or less?
7
 ♦ That almost a quarter of injuries to women coming to the major hospital in the Kingston
Worksheet 3: Domestic Violence area, KPH were inflicted by spouse, former spouse, ex spouse or common law partner.
♦ The World Bank estimates that 1 out of every 5 healthy days of life is lost to women of
Let’s turn our attention to the: Incidents of Domestic Violence in the Caribbean. reproductive age due to DV.

We looked at the newspaper article with Mr. Yearwood and Brown being involved intimately Profile of the Abused
culminating in the death of one of the men b/c of alleged ‘vows’ taken. (‘ca done so, two of we
got to die together’) We know a little bit about the profile of the abused, but this is not necessarily true in all cases. It
is suggested that:
Why is this a family law issue? They seem to have been in a relationship and the language which ♦ Women from lower educational and economic background and from households with
is used by Yearwood is very significant. He claims that ‘the complainant and he tek vows’. What more children seem more likely to experience DV
does he mean by this? He means that they are married or that they are in a long term commitment ♦ Women who reported joint responsibility for household decisions and headship were less
to each other. Do we want to recognize such a commitment? Is there any significance that people likely to experience DV; thus the more equal the household is the less likelihood of DV
who are not married are using the language of marriage to describe what it is that they share with ♦ Unmarried women appeared to be at greater risk; this may signal something about the
each other? scope of the legislation: who should get relief
♦ Many women who are battered during marriage experienced violence before the marriage
But let us turn to this other aspect which is the violence. What is significant here? If Brown were ♦ Many women view DV as a normal incident of marriage and this was found to be
a woman instead and went to a police station in Barbados, what would he have been told/ particular true in Indian households.
suggested to her? The police officer would invariably have said that she should get a protection
order and go to the legal aid clinic to get a lawyer’s assistance. Thus, one of the significant things Case Study: Crisis Centre in Jamaica: the indications are that:
about this case is the absence of Domestic Violence legislation protection for him. ♦ Half of the women accessing the services of the centre were in common law unions as
opposed to 35% who were married; thus majority of persons coming for help were
Is that something to be concerned about? (We will come back to this at a later date). The question unmarried; 9.6% were bf/gf relationships which indicates that violence is not a function
therefore is whether Domestic Violence legislation also provides protection for persons like of the longevity or the nature of the relationship; over 84% had children under the age of
Brown. 15. Should this be significant for legislatures? Yes, so as to make sure that children are
being protected even if not being physically battered themselves. Another reason is that
Incidents of Domestic Violence: saying a bit about what we know: the context of the legislation children are dependents as well.
is based on this: ♦ Almost all of those who came to complain said that they experienced emotional abuse;
♦ We are being told that 2 out of every 3 women in randomly selected households in Guyana more than half of the women said that they experienced sexual abuse and 90% experienced
reported at least one incident of DV. physical abuse.
♦ That at least 1 in every 3 women in T&T has experienced DV; ♦ Almost a quarter of the women accessing the centre reported it to the police (usually last
♦ That physical abuse in intimate relationships in Jamaica is almost institutionalized and resort) but most reported it to someone else.
women interviewed at the Kingston Family court thought that 71% of men beat women. ♦ 94% experienced the violence in their homes that tells us something about how the typical
The men interviewed said that they thought that 56% of men beat women. location of the home is the site of violence. This should be significant as well which tells
♦ B/w 1990 & 1995 a total of 80 women, 2 men and 23 children were murdered in T&T as us which orders can be given. We can have orders that tell the person to stop, or remove
a result of DV. them from the household but those are draconian orders with HR implications, but we
♦ DV is said to be implicated in almost a quarter of crimes against women in Jamaica should also consider whether they are necessary.

8
Profile of the Abusers: quickly, for this reason the relief is granted to summary courts. Thus summary process in
♦ Men who have experienced or witnessed violence as children according to recent research lower courts and there is no need for legal representation.
by sociologists were more likely to use violence against their partner;
♦ ¼ of men on death row in T&T murdered their spouse; Summary courts: in most of Caribbean they would be called magistrates court but in Mo-
♦ DV often occurs in situations of male insecurity as a response to perceived threats to bay it is called the family court. The family court in all territories except T&T is a court
masculinity; of summary jurisdiction; it can’t grant a divorce. T&T decided to have another initiative-
♦ Attitude of some men was that women deserved beatings if they did not fulfill expected family court exist only in Port of Spain and Magistrate’s court continue to deal with family
roles of domestic duties, sexual fidelity; matters. Unlike the rest of the Caribbean where it is a summary court in T&T they have
♦ Men more likely to be violent when they have been drinking. one physical court with the SC jurisdiction and Magistrate’s court jurisdiction; each
retaining it respective jurisdiction. In the SC divorce would be heard for instance and in
What does the social context signal to us about the content of legislation? the Magistrate’s court maintenance would be heard for e.g.

One is in terms of who can get relief. It suggests that legislation should include: There are a number of models. There is for example the Jamaican model where you create
♦ Heterosexual unmarried partners; the question which you should ask is should it include a court which has summary court jurisdiction and focusing really on children/juvenile
only persons living together or those who are in visiting relationships. justice. However that family court does not do any of the matters that the SC does. Thus
♦ The other thing which it tells us is that once we learn about the vulnerability of victims of you can’t get a divorce heard in the family court. Model number 2 is what happens
DV and the ways in which they have often internalized the violence the victims often everywhere else in the world; which is that you create a new court, and you set up its
minimize it. The effect of the violence often significantly impairs the victim’s ability to jurisdiction to deal with all family matters, they are no longer bound by the old rules about
act on her own behalf and thus it is extremely important that the legislation allows what must be heard in what court.
someone else to apply on the victim’s behalf. However, you would still need to have some
level of privacy. Thus, the question as to who are appropriate persons to apply on victim’s T&T is half way in b/w; it has maintained the old jurisdiction. If it is the supreme court
behalf is significant. that is suppose to hear divorce proceedings, then it will be the SC division of the Family
Court that will hear the matter and likewise if it is said that child support is to be heard by
Types of Orders: the Magistrate’s court then it will be the Magistrate’s division of the Family Court that
♦ If economic dependency is a fundamental feature, then ancillary financial relief is will hear the matter. Thus you still have the separate jurisdictions but it is all called the
necessary; poor women, women with more children are more likely to be in DV situations, family court. They only have services in common not jurisdiction. ADR, counseling and
and if this is true then the legislation must provide ancillary relief, not just that the violence therapeutic services will be suggested and provided etc.
is stopped but also that the abused ha some access to economic support.
♦ The second primary goal of the DV legislation is to give victims of violence some
Goals: autonomy in seeking relief against the violence rather than having to rely on the police to
♦ Need to protect children even where adult is being violated (intergenerational): given the prosecute their matter. The victim may also not want to send the abuser to prison but to
centrality of children in all of this, it is quite clear that children must figure quite just merely begin with a civil sanction.
prominently even thou the relief may be for an adult.
Exercise 1: Introduction (pg 18): ‘Learning to Read’:
Goals of the New Domestic Violence Laws:
♦ The primary goal of DV legislation is to provide speedy affordable relief. You don’t want
people not accessing the court b/c they can’t afford a lawyer or to do so. Also b/c of the
nature of violence and the risk of harm you want to make sure that the courts can do it
9
Andrew and Dianne have been living together for 8 months. Over the past 2 months What are the implications of this?
Andrew has beaten Dianne and caused her grave physical injury on 5 different ♦ Would Dianne be a woman in the eyes of the law here? According to Corbett
occasions. v Corbett, Dianne would be considered to be a man still as sex can’t be
changed. However according to decision from the EU, Dianne may or could
Dianne wants relief under the domestic violence legislation. Her first question to you actually be considered to be a female.
is whether she qualifies for relief under the legislation. What do you tell her?
Who can get relief? That’s basically what we just considered.
Important facts:
♦ They are not married We needed to have looked at the definition of DV in s.3 (no one mentioned this): DV
♦ For the moment appears to be a man and woman includes physical, sexual, emotional or psychological or financial abuse committed by
♦ Living together for 8 months a person against a spouse, child, any other person who is a member of the household
or dependant.
What do you tell her?
♦ Even though you are not married Dianne, the T&T legislation makes provision DV is defined not only defined in terms of what but also who. The ‘who’ matters
in s.4 for unmarried persons living together under the definition of ‘Spouse’ b/c it says who is entitled to relief. The statute is badly drafted as it sends you in
in s.3 which includes a former spouse, cohabitant or former cohabitant. circles in trying to decipher a particular issue.
♦ ‘Cohabitant’ means a person who has lived with or is living with a person of
the opposite sex as a husband or wife although not legally married to that Definition of ‘members of the household’ in s.3: means a person who habitually resides
person. The word cohabitant in its definition has no minimum period/length of in the same dwelling house as the applicant or the respondent and is related to the
period required for them to be living together. applicant or respondent by blood, marriage or adoption.

If they are not living together in the same household as in the above fact pattern, Member of household: is important to us as it is going to catch people who may not
is there any way Dianne can get relief? Yes. qualify as spouses but who may be intimately connected with the other person. For
♦ ‘Visiting Relationship’ means a non-cohabitational relationship which is otherwise example a grandmother may bring an action against her son for elder abuse.
similar to the relationship b/w husband and wife. (This definition is an awful
one according to Tracey. Do they have to be having sex? If yes or no then Would this definition have caught Dianne if she were born a man? No b/c she must
the question may arise as to what sex is.) be related by blood, marriage or adoption. T&T law makers are amongst the most
astute spent a lot of time to endure that no gay or lesbian person could get relief.
By the way, in the course of the conversation you discover that Dianne was born Does this loophole exist in Jamaica? It may well do.
male and 10 years ago underwent surgery to become a woman.
Definition of ‘Dependants’: means a person over the age of 18 years who by reason of physical
or mental disability, age or infirmity is reliant on either the applicant or respondent for his welfare.
10
 In determining whether or not to impose one or more of the prohibitions or directions specified
Who can get relief/apply under s.4? under s.6 the court shall have regard to the following:
♦ Spouse ⇔ Nature, history/pattern of DV & whether previous PO/IO granted
♦ Member of the household ⇔ Need to protect A from further DV
♦ Child ⇔ The welfare of any child
♦ Dependant ⇔ Accommodation needs of A and any other person
♦ Parent/sibling of the spouse/respondent not being a member of the household ⇔ Hardship that may be caused by granting the Order
♦ Person who have child(ren) in common with respondent ⇔ The income, assets, and financial obligation of R & A and any other person
♦ Person in/has been in a visiting relationship with person of the opposite sex for more than affected by Order
12 months. ⇔ Need to preserve and protect the institution of marriage & other relationships
♦ Police officer, probation officer, approved social worker on behalf of the above. whilst affording protection & assistance to the family as a unit.
⇔ Any other matter the court considers relevant
The definition of who can get relief can be found in different places in the Act. We realize that ♦ What types of orders are possible? S.6
there are conflicts amongst the definitions given. ❖ Protection Orders: includes main orders, financial and other orders.
Main Orders: PO may be made for such period as the court considers necessary but shall not
Exercise 2: Domestic Violence (pg 19) exceed 3 years and can include:
⇔ prohibition of DV,
For next class consider the following questions of: ⇔ non-molestation,
⇔ exclude from residence/other areas even if house solely owned/leased by R
♦ What amounts to DV under the statute? (elsewhere called an occupation order),
Physical: any act/omission that causes physical injury (can include attempted crimes) ⇔ Directing the respondent to return to A specified property.
Sexual: includes sexual contact of any kind that is coerced by force or threat of force (can include
attempted crimes). Sexual abuse doesn’t tie itself to an existing crime; this is due to the fact that Financial & Other Orders: pay compensation for monetary loss incurred by A.
only in few territories a man can rape his wife. ⇔ Compensation shall include but not limited to loss of earnings, medical/dental
Emotional/Psychological: pattern of behavior of any kind the purpose of which is to undermine expenses, moving/accommodation expenses, reasonable legal costs up to $15,000.
the emotional/mental well being of a person. For e.g. intimidation by use of threatening language, ⇔ Interim Monetary Relief to A for her benefit or benefit of child where there is no
following person or persistent telephoning of person’s place of residence or work. existing order relating to maintenance until such time as obligation for support is
Financial: pattern of behavior of a kind, the purpose of which is to exercise coercive control determined pursuant to any other written law.
over/exploit or limit a person’s access to financial resources to ensure financial dependency. ⇔ Child Support under Family Law Act
♦ Who is entitled to claim relief under the statute? Can someone else apply on behalf of the ⇔ Continued payment of rent/mortgage
victim of domestic violence? ⇔ Professional counseling or therapy for applicant/respondent to ensure adequate
Look above on page 10 for answer to this question. care is provided for a child.
♦ What has to be proved in order to get an Order under the statute? S.5
The court must be satisfied that the Respondent is (a) engaging in/has engaged in DV against the ❖ Interim (Protection) Orders: s.8
applicant or (b) is likely to engage in conduct that would constitute DV and in either case, having These are orders made for a maximum of 21 days before/during the hearing whether or not the
regard to all the circumstances, the Order is necessary for the protection of the applicant. respondent is present or has been given notice of the proceedings. They can be made where it
♦ Are there factors that must be taken into consideration? S.7 appears necessary or appropriate to do so to ensure the safety and protection of the applicant.

11
 ❖ Undertakings: s.9
Before taking evidence, the court can accept an undertaking from R given under oath that (s)he Family Law
will not engage in DV. Where such an undertaking is given, the court shall make the PO as it sees Lecture 3: DV Cont’d & Divorce
fit and it may not be granted for more than 3 years. September 11, 2007

♦ What happens if the order is breached? S20 You should know only one legislation for DV, similarly with Divorce. In relation to DV the
Upon breach an offence is committed. questions are always the same and straightforward. It is always going to be:
✔ Where an order is in force and a police officer believes it is being breached, s/he can detain 1. Who is entitled to relief?
& arrest person without a warrant. 2. How is DV defined?
✔ First conviction: maximum fine of $9000 or imprisonment up to 3 months; 3. What kind of Orders are possible: includes the ancillary orders (these help the main
✔ Second conviction: maximum fine of $15000 or imprisonment up to 24 months or both; orders for e.g. orders about money & custody). In speaking about the main order- it is
✔ Subsequent conviction: maximum imprisonment of 5 years. called in every jurisdiction a Protection Order. But there are some slight differences
across the Caribbean, outside of T&T and Barbados; you will also hear the phrase
Additional provisions: occupation and tenancy order.
o Police officer must respond to DV complaint; 4. When can you get the Order? What must be proved before the Order is granted?
o Police officer must complete a DV report which forms part of a national DV 5. Are there factors to be taken into consideration?
register; 6. What happens if the Order is breached?
o Magistrate can issue warrant for entry to premises where there are reasonable
grounds to suspect person has suffered or is imminent danger of physical injury Quick reference to Worksheet 4: Divorce
and this amounts to DV, and the police have been refused entry.
Essentially you will need to be able to say when someone can end/dissolve a marriage in a
Read very carefully on the worksheet, pages 35-40 on Human Rights. Read the case of Francois territory of your choice. This is a little bit harder, given the way in which the exam is structured,
v Ag where the husband alleged that his right to freedom of expression and to a fair hearing was thus you want to focus on one territory.
violated by the DV legislation and consequently contradicted the constitution’s provision for such
rights. In essence, Francois upon being summoned to court after wife’s complaint claimed that A very good knowledge of at least one territory that follows the (a) pure fault model, (b) the
the DV legislation was unconstitutional. mixed fault/no fault model and (c) the pure no fault model. The question for divorce is very
simple. It is what are the bases/grounds for divorces?
Nb. Must come back to the HR implications: pg 5 of slides and 35-40 on worksheet
Across all three models, there are some basic questions you must know the answer to;
1. What is adultery?
2. What is cruelty and how is this similar to R’s behavior?
3. What is desertion?
4. What is separation?
5. What are the bars to divorce? (both absolute and discretionary)
6. What is the role of ADR in divorce?

Also pay particular attention to the shortcomings of the three models and possible ways forward
by reform.
12
 separation of the parties for a year or a combination of facts which can include fault and no
DIVORCE REGIMES fault.
Once you switch from fault to the irretrievable breakdown of the marriage the court wants you
Fault/Matrimonial Offence Regime: to prove that the marriage couldn’t be saved, that they did everything they could to reconcile
✔ Guyana, Montserrat, St. Kitts & Nevis, Turks & Caicos modeling UK MCA 1937 and would ask you as lawyers to testify, in this case to sign a document saying that you have
Mixed: Fault/No Fault Regime advised your client of the need to encourage reconciliation and that you have given them a list
✔ Anguilla, Bahamas, Bermuda, BVI, Cayman Islands, Dominica, Grenada, St. Lucia, of counselors who can help them.
St. Vincent & Grenadines, T&T, all modeling UK MCA 1973
✔ Belize retains old provisions similar to UK MCA 1937 but adds no fault ground of There are a whole set of initiatives which now form part of divorce laws in the Caribbean which
separation. are about encouraging reconciliation, but they aren’t very effective. We have now made a shift
✔ Antigua & Barbuda reforms its laws in 1997 but not modeled on 1973 Act. and said that rather than encourage reconciliation lets accept that marriage is done and let us
help them mediate the resolution of other things such as child support, property etc.
No Fault Regime
✔ Barbados, Jamaica modeling the Australian Family Law Act. DV & HR Implications
We are now stepping it up to speak about DV and the HRs implications.
It is what are the bases/grounds for divorces?
In some places, it is what we call a Matrimonial Offence: this is speaking about wrongdoing; As we did last semester in CCHR you will have a group assignment which you can do or not do:
something almost considered a crime in the marriage. These offences include adultery, cruelty pg 44 of worksheet; exercise 2. We do not meet the week of Sept. 23
and desertion and in some statutes bestiality, rape, sodomy and insanity are included.
(Look above for all categories stating who can get relief)
The basic idea is that you must prove that your husband/wife was nasty and disgusting to you.
Thus you must prove that they have committed a matrimonial offence on the one hand, and on Going back to what was discussed briefly about: Who can apply for relief under DV statue?
the other, that you have been good and innocent. The whole idea of this divorce regime is that 1. Spouse: de jure spouse, former spouse and cohabitant; there is no time frame.
one party is guilty of an offence and the petitioner is innocent. If the petitioner is not innocent, 2. Members of the Household: only covers relatives/ family members (this category will
s/he may be barred from getting the divorce. not admit persons who are intimately involved with each other-only blood relations).
This doesn’t appear to be the case in Jamaica however (any person who normally resides
Thus we have a scenario in which one has fault related grounds for divorce and also fault related in the household- no requirement of blood relations).
bars to divorce. This means therefore that you can’t come to the court seeking relief on the basis 3. Persons in close personal relationships (CPR) (Bermuda)
that your husband committed adultery if you also have a boyfriend. 4. Persons that have child in common with respondent
5. certain state officials such as police officers and social workers
Thus we have a very good sense of how closely this was tied with crime. The law place persons 6. Person in a Visiting Relationships (VR): non cohabitation relationship otherwise
under a very high burden of proof to establish the fault. In some cases, justices were speaking of similar to marriage (they must have been in the visiting relationship for at least 12
proof beyond a reasonable doubt. months: T&T Act: s.4(2)g).

That is one ground, but the other is, the irretrievable breakdown of marriage and you would Notice that there is a significant shift in the definition of VR in Jamaica. A committee advised
more than likely come from a jurisdiction where that is the main ground for divorce. In that case T&T to adopt position in Bermuda i.e. close personal relationships.
the law will signal what facts can establish that ground and those facts will either be the

13
In the case of DV no statute gives a minimum time limit for living together. However when we (Forms to be filled out can be found at the back of the T&T DV legislation)
get to property restrictions is imposed. The substantive element is the living together of a
husband and wife. Frank and Edith have been married for 13 years and live in a house which is solely
owned by Frank.
Basic things to remember about family law: Don’t assume that the statute means something;
always refer to the legal definition given by the statute.
On numerous occasions Frank has punched Edith, hit her on the head with a
Who else is considered as a spouse under the T&T Act? hairbrush, kicked her in her stomach, and verbally abused her. Edith, who had a
‘Cohabitant’: this is a new term of art in T&T statute and was first introduced in 1998 in the mental breakdown before her marriage, is suffering from chronic depression
Cohabitation Language Act. It is a heterosexual relationship i.e. b/w man and woman who live
and is being treated as a residential patient at a psychiatric institution. She has
together though not married.
resigned from her job as a computer analyst b/c her doctor advised her that she
Could someone be living together as husband and wife and not having sex? would require a year to recuperate.
Could we say that that person is a cohabitant/spouse? Interesting thing about standard,
equivalent to marriage: difference b/w the standard of how married people live and what Edith’s neighbor called the police on one occasion when the abuse was taking place.
actually happens.
Gertrude, Frank’s mother has spoken to her son Frank, about his treatment of
It is a subjective standard. This test of cohabitant: there is no minimum time for living together, his wife, but with no success. Edith is scheduled to be released from the
thus even short term relationships qualify. When it comes on to property- time restriction comes psychiatric institution soon and Gertrude is very concerned about Edith’s safety
in to the picture. if she returns to the matrimonial home. She loves her son and does not want to
see him go to prison, but she wants to do what she can to keep Frank from
Note also that there is no need for the parties to be single (i.e. no requirement that the party is
not married to someone else). Edith.
1. Complete forms 1, 2, 4 & 7, at the back of the T&T Legislation:
VR- No requirement about sex of the parties; must be for at least 12 months (s.3 and 4(2)g) 2. Alongside the forms, you should prepare a file which explains in the context
CPR- defined differently- sex don’t matter and that it does not have to be sexual, thus it is of these facts:
determined by looking at the amount of time, duration, where they spend the time together etc. ✔ What must be proved to get a protection order
T&T is more restrictive than Bermuda. Every case has to be assessed on its own-position taken ✔ Who is entitled to get it
in Bermuda and consequently gives you clear criteria on what to judge. However T&T merely ✔ How must the court balance the respective interests
gives us a standard which is hard to judge. ✔ What is the role of the police
✔ What precisely happens if there is a breach of the order
Jamaica attempted to marry the two positions in its recent reform to DV Act- it now has a
standard of VR, abandoned the basis and adopted the Bermuda position and that it has to be b/w Ensure that the conduct being complained of actually falls under the definition of DV; i.e.
man and woman. physical, sexual, emotional/psychological or financial abuse.
On the facts, you may say that there was physical (act or omission wh/ causes physical injury
Exercise on pg 44: Getting the Law Straight (hitting on head w/ hairbrush & kicking in stomach) and emotional/psychological abuse (pattern

14
of behavior to undermine the emotional/mental well-being; verbally abused her). One conduct does Barbados and T&T allow you to get the two other types of orders that the other countries
suffices for physical and sexual abuse whilst a pattern of behavior is necessary for financial and are talking about?
emotional abuse.
The way to start this discussion is by figuring out what is meant by occupation and tenancy
Some persons were suggesting financial abuse, but Tracey was quick to remind us that a orders.
pattern of behavior the purpose of which was to exercise coercive control over/exploit/limit
person’s (in this case Edith’s) access to financial resources so as to ensure financial dependency. Occupation Order (OO): gives the victim the right to live household residence to the exclusion
One off situations will not suffice; likewise for emotional/psychological abuse. of the perpetrator. It gives the victim (the abused) with no proprietary interest (neither owner
nor tenant) in the property a right to stay. If the victim is either an owner/tenant or co-owner/co-
For both emotional and financial abuse there is focus on the intention of the abuser. What was tenant she doesn’t need an occupation order b/c this order gives you a right to stay. Tracey’s
intended by the act of the abuser? For example, the receipt of 20 emails per day; (person view is that the exclusion of the perpetrator in countries that have occupation orders comes
receiving this may consider it to be love) it is not how the receiver considers it but what was the under the protection order. All the occupation order does is give you a right to stay, it doesn’t
effect intended by the sender. Thus need to show pattern of behavior and intentional conduct. exclude you. That exclusion element comes under the PO. The tenancy order is different. The
OO can give you a right to stay in premises in which the perpetrator owns/rents.
Can you financially abuse a person who you have no legal duty to help? Should the law allow
financial abuse to cover relationships where there is no duty to support and allow that person to Tenancy Order (TO): how is this different? Here, the tenancy is transferred to the victim. It
get some form of economic support from that person/ancillary relief as well even though there vests a tenancy in the victim i.e. the person who is/was not a tenant before. This is a higher level
was no legal duty to support? (Think about this) of right and the victim now becomes a formal tenant. Third party rights are affected under this
order; for example landlord’s rights.
Protection Order: You can exclude someone from a perimeter of ‘you’ or exclude them from a
perimeter of a place. The general stop the violence, don’t communicate, stay away from Edith In Barbados and T&T you can get the equivalent of the OO but tenancy orders doesn’t exist in
and now ancillary relief compensation. Interim monetary relief (IMR)- basically maintenance; it any fashion at all in these territories. How do you know that you can get an equivalent of an
is interim to a maintenance order- assumes that a maintenance order will be granted in respect of OO? By saying that the R must immediately vacate the residence whether or not it is solely
her. owned; the reading of subsection 4 of the T&T Act. There is no equivalent of a TO.

It goes without saying that the only people who should be able to get interim monetary relief are Always consider what sort of relief would be needed for Edith.
persons entitled to maintenance. If the law doesn’t oblige you to take care of the person you are
intimately involved with, you can’t be obliged to pay them interim monetary relief. Only Some general things to note about PO:
persons who are legally entitled to a maintenance order can get IMR. ✔ Maximum period of 3 yrs
✔ Can do a number of things: can prohibit the DV, tell perpetrator to stop molestation,
You want to think about how far the court should go in allowing people to attach other things to exclude perpetrator from residence/other areas even if solely owned by R (OO), victim
the protection order for e.g. compensation. can get ancillary relief: for e.g. compensation, possibility of interim monetary relief, to
get child support and cont’d payment of mortgage/rent, Act also allows court to mandate
Let us consider s.6(c)4 which directs respondent to leave regardless of whether it is solely or counseling even for the victim and can make arrangement to ensure that adequate care is
jointly owned by him or whether she has a right to stay. provided for the child.
What must be established to get PO?
In Barbados and T&T there is only one kind of order that you can get i.e. protection order. ✔ Must show that DV (one act for physical & sexual abuse; pattern of conduct for
Everywhere else you can get protection, occupation and tenancy order. The question therefore is financial/emotional abuse) has taken place or is likely to take place;
15
 ✔ Not only must you shoe the violence but you must also be able to say that in all the
circumstances you need the order to protect the victim.

The court must also be able to balance the respective interests of the parties with respect to these
factors: s.7 (look above)

The victim’s interests are prioritized. Then you would have to consider the hardship that would
be caused by the order. Number 3- have to consider the welfare of the child- children’s interests
are important.
Family Law
Interim protection order can only be for the maximum of 21 days and it has to be necessary for Worksheet 4: Divorce
the safety and protection of the applicant/victim. September 18, 2007

T&T has an interesting provision about undertaking, which essentially allows the perpetrator to We will be starting with the basic elements of Divorce and then backtrack to DV as it relates to
give an undertaking under oath that he will not engage further in DV. HR implications. This is heavily dependent on your HR knowledge.

Consequence of Breach of the Order: amounts to a crime. The penalty is highlighted above. In We are interested in the three different ways in which divorces get resolved in the Caribbean.
T&T there has been an effort to strengthen the police response to DV. There is the Fault/Matrimonial Offence model, Mixed Fault/No Fault model and No Fault
model. Most of the Caribbean falls under Mixed Fault/No Fault model.
In T&T you can get other orders- Compensation Order (maximum of $15000 T&T) for loss of
earnings, legal cost, moving expenses, medical care etc. Interim monetary relief-where there is Divorce in the Caribbean
no existing order for child support or maintenance. The first thing we notice is that Divorce rates have gone up everywhere. So we see in Antigua &
Barbuda moved from 14 per year in the 50s; doubled to 28 in the 60s and increased to 53
Next Tuesday, we will speak about DV in HR context and the decision of Francois v AG. divorces per year in the 80s.

Why would you suggest that the rates of divorce have increased so significantly? One suggested
reason is that the law has made it easier for divorce to be attained and secondly that there has
been a general trend of breakdown in family life and values.

Are divorce laws the reason for divorces? Not really, but the point is that the process being
easier encourages people to file divorce as the laws are no longer cumbersome. Another reason
may be that over the years women have become independent and are no longer dependent on
men as they now have access to their own money and options i.e. job opportunities.

What do you think facilitate the ease with which women have? There is strong evidence that
suggests that people don’t get divorced if they think they can’t afford it. One party may have a
lower income etc and may be afraid to be alone. Many people marry b/c it is an important way
of becoming middle class- some recognize that they may not be able to purchase a house on a
16
single income and that marriage facilitates the kind of pooling of resources that allows you to
afford a better standard of living for yourself. Matrimonial offence suggests that you will get a divorce if the respondent has committed a
matrimonial offence/crime. (Grounds as highlighted on slides). It means that the first thing that
One of the interesting things about the Antigua & Barbuda Statute is that there was no change in you have to establish is that your partner, the respondent has committed one of the matrimonial
their law during the period of 1960 and 1997 (incorrect dates-couldn’t hear). Thus there was offences which are:
fault divorce in all of those 50 years. More people are getting divorced despite of the content of 1. Adultery: voluntary heterosexual intercourse; if your husband has sexual intercourse
the divorce laws. with another man, there is no adultery.
2. Desertion: this is the unjustifiable withdrawal of cohabitation without consent of other
Barbados does see a significant shift as well. Divorce rates in the Caribbean are lower in spouse and with the intention of remaining separated permanently. Thus you have an
comparison to the developed world. actus reus and mens area. You can be separated and live in the same house, what one has
to establish is that the consortium, i.e. the normal things you would expect in a marriage
The average age of people getting married in the Caribbean: in Jamaica the average age of has ended. For instance sex has ended. So you will find cases of people who are able to
women getting married is 33, in T&T 27 etc. The average age of marriage for men in the establish that they have been separated notwithstanding that they are or have had sex
various territories is always lower than the females’. during the separation. You should also know that you can be together, even though not
living in the same place. Separation doesn’t always require the parties physically living
Who applies for divorce in the Caribbean? apart or the reverse, living apart doesn’t mean separation.
♦ It appears to be mainly women in other parts of the world but in the Caribbean it is not 3. Cruelty: is conduct of a grave and weighty nature which makes cohabitation virtually
starkly so. impossible and the other spouse should not be called on the endure it. (Llewellyn-this
♦ Generally the marriages are longer than we assume. Barrow found that more than half of should be distinguished from the judge’s comment that the slapping etc of a woman was
the petitions filed b/w 1980 and 1995 concerned marriages of more than 10 years and the fair wear and tear of marriage & not cruelty).
only 15.5% involved marriages of less than 5 years. 4. Insanity: Unsound mind
♦ Women tend to get a divorce when they can afford to, even if they are poor 5. Husband guilty of Rape, Sadomy or Bestiality
♦ Women rarely ask for alimony (periodical payments after the divorce for maintenance);
they do not wish to retain emotional or financial ties to their former husband but they So the key is that you must be an injured spouse seeking relief from an intolerable wrong and
want the children to be adequately maintained. the standard of proof is extremely high. The divorce must not be orchestrated by the consent of
the parties. Thus, the respondent must be guilty of a matrimonial offence, but the applicant must
Why should the state be involved in divorce? Does the state have a legitimate role to play in the be innocent.
end of marriage?
♦ Public policy considerations: family as a unit Bars to Divorce
Absolute Bars:
What is the relationship b/w divorce rates and divorce laws? Condonation: You are absolutely barred from a divorce if you have condoned it. If you forgive
and reinstate your husband as the person you want to have a relationship with, you can’t turn
There are 3 different regimes for divorce in the Caribbean. around and complain about his adultery.
Connivance: if you connive at the matrimonial offence i.e. if you consent and contribute to it
Fault Based Divorce/Matrimonial Offence and promote it then you are barred from getting a divorce.
Collusion: you can’t both agree to bring the petition; consent is actually prohibited.
Matrimonial offence model exists in Guyana, St. Kitts & Nevis and Montserrat. There is some
combination of systems in Belize which make it apply in some instances. Discretionary Bars:
17
There are some bars which are actually discretionary which the judge could use to decide the Bars to Divorce:
petition. For example: There are no bars in the traditional sense to divorce under this regime. However there are
o P is guilty of adultery, cruelty measures designed to protect the respondent who is being divorced against her will by 5 years
o P is guilty of desertion before adultery separation such as a provision which says that S/he can oppose the divorce if it would cause
o Unreasonable delay in bringing the order grave hardship.

There are a number of measures to facilitate reconciliation. These measures include the
Criticisms of this approach: responsibility placed on lawyers for telling their client about the possibility of reconciliation and
o Encourages fabrication give them names of counselors.
o Fault grounds not a true indication of breakdown
o Discourages reconciliation, produces hostility and harms children The judge must adjourn proceedings if there is a reasonable possibility of reconciliation. If the
o Outdated and discriminatory parties lived together for less than 6 months after the adultery or behavior then it will not
interfere with making a case of proof of one of the facts. If the parties reconcile for less than 6
Mixed Fault/No Fault Regime months, it won’t interfere with claims that there is continuous separation.

Most of Caribbean has modeled the UK MCA of 1973 which more or less represents the Critique:
consolidation of a number of Acts including the Divorce reform Act of 1969; not Jamaica or o Movement away from fault illusory
Barbados but most of the Eastern Caribbean States. The good/bad thing about this system is that o Doesn’t help save marriages
divorce is attained very quickly. This is in stark contrast to places like Jamaica where no matter
what is done to you; you have to wait a year before they can get the petition. No Fault Divorce

It introduced for the first time in the UK one ground of divorce: irretrievable breakdown of the Only in Jamaica and Barbados one has the purest form of no fault divorce. There is as under the
marriage. It asked the question of how they will know when the marriage is broken down. They UK MCA 1973 one ground of divorce (irretrievable breakdown of marriage) but that ground is
felt that the question of whether there was breakdown was not justiciable; they didn’t want to established by one fact: separation: for 12 months.
decide this on a case by case basis. Thus they looked at 5 facts to establish whether or not there
has been an irretrievable breakdown. They also introduced efforts to facilitate reconciliation. The Act states clearly that you can be separated even though one party didn’t want the
For e.g. in Dominica, Grenada, St. Lucia etc. relationship to end. Thus it is sufficient if only one party engaged in a unilateral act of
separation. You can also be separated even though they continued to reside in the same
T&T MPPA s.4(1) residence, or even if either party has rendered some household services to the other such as
Thus there is one ground of divorce which is irretrievable breakdown, established by any of the cooking or washing etc.
5 facts:
o Adultery & intolerable to live w/ R Do you have a sense of which system you prefer? Fault system allows victim to get divorce
o Respondent’s behavior & P cannot be expected to live with him right away whilst the no fault regime doesn’t allow this, have to show separation for a particular
o Desertion for at least 2 years time.
o Continuous separation for at least 2 years w/ consent
o Continuous separation for 5 years w/o consent Critique:
The facts do not have to be causally connected to the breakdown. o Puts persons at risk where there is severe violence or poverty
o No fault is illusory
18
Rec23
Class assignment:
♦ Does DV go far enough in discharging the states constitutional duty to provide
meaningful protection for victims of DV? A-f, l-o
♦ Are the provisions of DV legislation dealing with tenancy and occupation rights
consistent with provision of Caribbean constitutions?
♦ Are interim and ex parte orders consistent with the provision of Caribbean constitution? Family Law
♦ Can a DV statute that does not include factors to be considered in granting orders be October 2, 2007
constitutional? Worksheet 5: Property Distribution

Divorce: trends in contemporary law: such as the movement from fault to the encouragement of Review of DV; Tracy gives a scenario with Chandra:
ADR and the focusing on children and the protection of children even when resolving disputes
b/w their parents and also the encouragement of private ordering which is a less adversarial Chandra is 35 years old and married since 2000 after graduating from law
approach.
school to Barry. They are both lawyers and for the last 5 years they have been
living in a house that used to belong to Barry’s parents. This house was
transferred by the parents to Barry when they got married to help give them a
start. The parents told Chandra when she asked that they couldn’t transfer
property into her name as well b/c the taxes would be too expensive.

In the last 3 years of the marriage, Barry have become very abusive by hitting
her; raped her on one occasion, used very demeaning language towards Chandra,
developed a drinking problem and tried to prevent her from using their joint bank
account by cutting up her ATM card.

Chandra couldn’t take the ill treatment any more and in April Chandra went to stay
with parents. However this location is very far from where she used to live and
work and as a result, she hasn’t been able to do any of her court matters since
April and lost approximately $20,000 in income. Chandra is not sure of what she
should do; she wants to go back to the house and law practice but is afraid of
Barry’s behavior and is now thinking of getting a divorce.

Your answer/advise to Chandra; remember to choose 1 territory but you can cf with
another for bonus points:

19
Two main concerns are raised: DV and Divorce P cannot be expected to live with him; desertion for 2 years, continuous separation for 2
years w/ consent and continuous separation for 5 years w/o consent.
Highlight features of DV in fact pattern based on T&T Act of 1999: Barbados/Jamaica:
o Have to decipher whether Chandra falls under the Act: is she a spouse, cohabitant etc? Look o 1 ground as well wh/ is irretrievable breakdown; proved by one fact i.e. separation for 12
to the legislation to get definition. months: Have to now consider by questioning Chandra the issue of separation:
o DV according to the Act constitutes physical, sexual, emotional/psychological and financial Factors to consider if separation has in fact taken place:
abuse o Hasn’t had sex with him for a long while; not slept in the same bedroom, cooked for him,
o Physical & sexual abuse: one act can suffice; financial & emotional abuse: have to show a but attend family functions together etc. The crucial thing becomes, the fact that she says
pattern of behavior (R v R- doesn’t apply b/c the Act is indifferent to whether the sexual that she left him in April is not decisive, and you have to find out what the nature of the
conduct is a crime; the right response is the definition of sexual abuse under the Act- sexual relationship was while they were living in the same household to see if the separation began
abuse is not dependent on it being a crime) long before that. (Look on notes of previous classes for information)
Possible Orders/Remedies:
o The main type of releif that Chandra would be able to get is a PO, but she will have to prove So very quickly we have highlighted 2 separate issues: DV and Divorce with very different
certain things to get it. considerations applying to both. That is what you have to be prepared for in this course; that you
o Occupation Order (OO): T&T doesn’t have this but there is an equivalent provision in the would have to separate out in the context of similar facts, evidence which applies to different
Act wh/ gives authority to exclude the perpetrator Barry from the premises. Remember that legal considerations and which may be worked out in different ways depending on what it is.
there is no equivalent provision for TO in T&T & Barbados. The implied provision gives So in the case of a divorce in the context of Jamaica & Barbados the violence is insignificant/not
Chandra a right to stay even though she has no legal right to the property presumably. important (no fault regime), but it becomes very important if she complains about the violence
o Interim Protection Order/Ex Parte IPO: (to get this order you have to establish certain in relation to DV Act.
factors; that you are in need of the protection order; T&T has a list of factors)
Ancillary Relief possible: Question that we should now consider is what might the law say about Chandra’s property
o Compensation: Chandra could get this but only up to $15000 in T&T not the whole $20,000. rights?
o Interim Monetary Relief: for loss of earnings for work during period she was adjusting. o The house was in her husband’s name only, and was given to both by Barry’s parents;
(consult pg. 15) parents explained that it would have been expensive to transfer to both.
o ADR o There seems to be an intention that both Chandra and Barry were given the property.

Highlight the features of Divorce: Financial abuse-don’t have ground as it was only a one off situation therefore would not suffice
o Would have to ask Chandra if she considered reconciliation; therefore she may be able to like emotional abuse. It would be best to bring Chandra’s action under the physical and sexual
apply for divorce by showing that the marriage has reached an irretrievable breakdown. abuse.
o May advise her to get counseling. Suppose she is in Barbados: the first thing that you as a
lawyer is obliged to do is ask if Chandra has considered reconciliation with her husband You have to establish a pattern of conduct in relation to emotional and financial abuse and
Barry and obliged also to give Chandra name(s) of a marriage counselor(s). intention is also critical. Even though it may seem originally to be abuse in those regards the
Chandra is not interested in this route of action, wants to know if divorce is possible: actions named does not suffice.
o Would need to advise her of how she can get this or rather the ground(s) for divorce
depending on territory she’s from. Worksheet 5: Property Rights and Distribution: An Introduction
o T&T: there is a mixed no fault/fault regime (pg. 18). Under this regime there is only one
ground for divorce which is irretrievable breakdown. This ground can be proved by any of There are number of moments in which people get anxious about the distribution of property.
or a combination of 5 facts which are: adultery & intolerable to live with R; R’s behavior & Such moments include:
20
 allowing redistribution are Specialized Properties Act like the Jamaica Property Rights
♦ When a relationship ends (including divorce) of Spouses Act or the Cohabitational Relationship Act which only deal with property
♦ When third parties (e.g. banks) want to exercise their rights to property used as a family matters and probably financial ones not general matrimonial statutes.
home when there is a defaulting mortgage (important for bank to find out who the true
owners are before they can make good their security) b/c their security is in respect of Matrimonial Legislation is found in the SC Act in Belize. The traditional matrimonial
only half of the share i.e. the wife’s/ husband’s jurisdiction of the court belongs to the superior courts and in some territories the jurisdiction is
♦ When one party to a relationship dies. still elaborated not in specialized Matrimonial Legislation but in a Supreme Court Act. This is
much more profound for places like Dominica, Grenada where it’s the Supreme Court Act that
In the Caribbean parties mainly fall into 2 extreme categories: the really rich and the really poor. tells us about this.

There are 2 main options available to courts in the Caribbean: Whether property can be redistributed or whether you can merely declare the owner is going to
1. Essentially the court can say who the property belongs to i.e. who the owners are, depend on whether there is legislation in the territory and you have to take into account the
declare ownership. If they are declaring ownership they are really relying on common scope of the legislation; i.e. does it apply to only married couples and/or unmarried persons.
law principles and in particular trusts principles.
2. The second option which the court has is to redistribute property which is always a o BFLA: applies to both married and unmarried;
statutory power never a common law one. Some statutes allowing redistribution include o JRSA: both married and unmarried;
BFLA, Jamaica Property Rights of Spouses Act JRSA and T&T MPPA. Redistribution o T&T MPPA: only married persons; and
powers are traditionally found in matrimonial legislations. The second set of statutes o Cohabitation Relationship Act: only unmarried persons

(These apply to the respective persons only when they are living).Bear in mind that there are These trust principles which we are going to rely on work for all transactions- it could be a
some territories where there is no power of redistribution whether married or unmarried. vendor & purchaser, a brother & sister, husband & wife etc. they are of general application that
Remember the case from Jamaica: Stoeckert v Geddes case: Stoeckert kept on saying ‘women, can thus be used for any personal or commercial relationship. However there is now increasing
get married’ but that was in fact very bad legal advise as her position would not have changed recognition that the rules must now be adjusted to the context of intimacy.
had she been married. In Jamaica, at the time of the case, there was no power of redistribution,
even if they were married. ‘The interpretation t be put on the behavior of people living together in an intimate relation may
be different form the interpretation to be put upon similar behavior b/w commercial men… An
One notable territory is Antigua and Barbuda where they don’t have the power to redistribute outcome which might seem just in a purely commercial transaction may appear highly unjust in
for either married or unmarried couples. a transaction b/w husband and wife or cohabitant and cohabitant.’

There was a major PC case decided 3 months ago which is the new locus classicus- comes from Types of Trusts: Express and Implied:
Antigua and Barbuda where there is no power of redistribution whether married or unmarried
and therefore uses trusts principles instead. Express Trusts: this is the kind of trust that people actually sit down and think about. They
deliberately say that the property should be held on trust for another or declare themselves
The focus of next week’s class is on the power to declare ownership. In essence the courts are trustee. The law says that there must be certainty of intention (i.e. you were sure that you
simply saying who owns the property. The key is that they are not confined to looking at legal wanted to give the gift to the person), objects (i.e. the persons who are to benefit/beneficiary)
ownership they can also look at the equitable and beneficial ownership. and subject matter (i.e. property- intangible/tangible property). We also need to observe certain
formalities-the most important formality which is of concern to us is that if the subject matter of

21
the trust is land, then it must be in writing. Thus, a husband can’t say that ‘I am holding this in conjunction with a new HOL case in the background called Stack v Dowden. Try and confer
house upon trust for wife’: it has to be written a land is concerned. having read Abbott and outline of Rosset what the legal principles are. Then read the in-between
PC decisions from Jamaica: Stoeckert and from Grenada: Otway & try to determine whether
Implied Trusts: this is what we are interested in; this is a trust which arises not b/c of the express these cases can be reconciled with the Abbott case.
wishes of the party but by operation of law. There are 2 types of implied trusts:
o Constructive Trusts Question on pg 44: exercise 2:
o Resulting Trusts
Does the DV law go far enough in discharging the states constitutional duty to
So even when the parties haven’t agreed in the formal ways which the law requires, the court
provide meaningful protection for the victims of domestic violence?
can imply the existence of a trust in the circumstances of the case.

Resulting Trusts: easiest way to explain it is by saying that it was always yours; it was ours in What do you think an appropriate answer to your AG will be?
the first place. An e.g. I give you $20- you buy a text which costs $40 but use my $20 to help
pay for it- thus, I have contributed financially to the purchase and is therefore entitled to half; The legal context for considering rights in this case is the constitution. As this constitution is the
you may be the legal owner but I am an owner in equity. Once you contribute financially to the supreme law of the land. As the highest law that means that it controls ordinary legislation.
project you are an owner in equity and your share is proportionate to your contribution. My Thus, when you are asked about if the domestic law goes far enough in discharging the state’s
interest in the property has to be reflected. constitutional duty to provide meaningful protection for the victims of domestic violence, one of
the things I would suggest is that you recognize the premises and the assumptions of the
The second idea of Constructive Trusts: is very different that resulting trusts. The trigger is question.
some notion of unconscionability- there is something offensive/morally wrong about allowing
you to walk away as the legal owner and claiming that the thing is yours. In family property The first premise is that we have a constitution which is the supreme law and that any law that is
cases the trigger is not that you paid for it, but that there was an agreement that they came to not consistent with its provisions are void to the extent of its inconsistency, that’s one key
some common intention of ownership, about sharing this thing together. But this is not enough premise of the question- constitutional supremacy. And any question that throws in the
to bring the constructive trust into being, but that as a result of the agreement one party went constitution and the statutes is invoking the notion of constitutional supremacy. The question is
ahead and did things in reliance on this i.e. the detrimental reliance. therefore going to oblige you at some point to think about where international law fits in the
scheme where the constitution is the highest law.
PC has made it absolutely clear that it is of the view that the resulting trust is of minimal value
in resolving family property law. All the energy will be on the common intention constructive This will also oblige you to think of international law- where does it fit- does it influence the
trust- common intention to share which can be actual, implied/imputive and detrimental constitution etc?
reliance. The courts are required to quantify the shares of the party using a holistic approach i.e.
taking into account all the deals and conduct b/w the parties. Another assumption of the question is that the state has a constitutional duty to provide
meaningful protection to victims of DV. it is important to consider whether this assumption is
Common intention can be express or implied/imputed. It should be evaluated in light of their correct.
whole course of conduct and an excuse might be evidence of CI; it is now clear that less than
direct financial contributions can give rise to CI. Having addressed the assumptions what happens next?
Describe the DV law and this is a moment where you can choose to speak generally about the
Next Week: read a summary of a case called Lloyds Bank v Rosset 1991 which up until 26th July law in the Caribbean or specifically by referring to a country. Our third important point is that
was locus classicus. Then read new locus classicus from the PC in the Antiguan case of Abbott you want to briefly say something about the DV law/legislation.
22
 Are the provisions of DV legislation as they relate to tenancy and occupation
One way to proceed is to identify potential problem areas where we know there are significant rights consistent with the provisions of Caribbean constitutions?
rights concerns. Limitations- you may refer to this; occupation order, ex parte orders etc: are
there any concerns about this approach? Yes, as the question is focusing on the victims of DV What would you do?
and these limitations mentioned tend to create concerns about the rights of the respondent. So o You may want to identify a jurisdiction or may not want to and refer to the Caribbean in
remember that we are concerned with the rights for the victim; some of the concerns that the general.
victim may have is, am I going to have access to the courts, am I going to be excluded b/c I o Same preliminary considerations about the supremacy of the constitution. Why is the
wasn’t living with the same person/ b/c the person I was living with is of the same sex etc; so constitution relevant to the statue? It is relevant b/c it is the controlling norm for every piece
there are concerns about who is entitled to relief. of legislation in the jurisdiction.
o Description- you have to describe not only the DV legislation but focus also on the
B/c if the general right is to be safe, to be protected whoever you are whether in public or provisions relating to tenancy and occupation rights. Do you realize that the AG has used the
private, that the state must do everything to keep you safe, then you could legitimately say to the word ‘rights’ as opposed to ‘orders’? This is simply to signal to you that she recognizes that
state that you don’t think they have done enough to protect your rights as they have ignored there may be territories where there are no occupation or tenancy orders. Thus she wants
your type of relationship in facilitating and providing relief against DV. you to focus on whether you can get those forms of rights.
o So there are a number of ways in which you can proceed. For example, if you were speaking
You can say the same thing about the types of Orders. How do you explain territories which of a territory like T&T you would clearly have to say that there are no orders called tenancy
give virtually no access to financial type orders; where they allow you an occupation order but or occupation orders. However you would say that s.6 does effectively allow the court to
no provision relating to maintenance or paying the rent etc. grant occupation rights to victims of DV but no possibility of tenancy rights.
o Try and figure out/locate what kinds of rights are implicated by the orders. The interesting
What about territories that don’t facilitate tenancy orders? Those are the questions that Tracey thing is that the suggestion we had was property, but is this going to be enough?
imagines we will begin to assess. How is DV defined? If you notice, these are the same o You can’t simply be speaking about the rights of the respondents but essential as well is that
questions that we have to consider. you must be speaking about the rights of the victim.
o You have to weigh the interests of the victim which is what is driving the exclusion against
How is DV defined? Who is entitled to relief, what kind of relief and what types of protection the interest of the respondent. Really the question therefore is asking about how the state
can you get? balances these rights. So you would have to again identify the state’s duty to provide
constitutional protection to the victims and the rights of the respondent. (You can use the
A tenancy order may not be a legitimate order if it goes too far in infringing the rights of others. discussion on first question above here).
Clearly explain to the AG that those rights are limited rights, they are rights that are invariably As we begin to work through that do you think there is any specific thing that we have to point
subject to the constraints of protecting the rights and freedoms of others. Describe the nature of out?
rights as they are protected by the constitution. You would say to the AG that they are limited o Identify provision of the statute itself that will help us with the balancing of these interests;
rights; the constitutional duty is that the state is obliged to protect the victim but to also balance the state attempts to balance these interests through s.7 of the T&T Act. But what about
the rights of other party as well. Jamaica that doesn’t have s.7?
The second question: We have to figure out what the constitution requires. The constitution requires that the statute
must conform to it. But what is the constitution in detail saying? The constitution says that

23
people have certain rights but that those rights must be balanced against others. Thus one
constitutional mandate is balancing. The statute attempts to do this through s7.

A question however raised is that can this statute be constitutional if it doesn’t give any
guidelines; i.e. tell the magistrate how or what are relevant factors to be considered? Does that
raise any concern about its constitutionality?

One suggestion: it would be more problematic if the statute didn’t give the magistrate discretion
and insisted on the power being exercised in a specific ways. But if you compare with T&T for
e.g. where a list is given then probably Jamaica is not in violation if not given a list as the
magistrate is sensible enough to consider relevant circumstances. But the argument on the other
side is that if you are going to infringe my right it should be clear what criteria is being used-
there should be certainty.

To the extent that it doesn’t include a list/clear, one could argue that the presumption of Family Law
constitutionally could assist/ a judge in a HC could attempt to set our factors which would be October 9, 2007
relevant. Worksheet 5: Property Rights & Distribution

Is a tenancy order ever constitutional? Can we argue that the tenancy orders go too far? And We are here concerned with how the common law and trusts principles can help resolve disputes
secondly what are the implications of the T&T DV Act being a Special Act. b/w intimate partners. At the end of the class hopefully we will be able to look at how
legislation helped to resolve this problem.
This raises a second obligation relating to the constitution that yes we can limit the right but
there must be a rational connection b/w the legislation and some legitimate state goal (public There are 2 things to do: stay with her on discussion on trusts principles and secondly in a
safety, health or order) and that the measures are proportionate. territory of your choice you need to know what the legislative response to property dispute is.
Everybody out side of Antigua & Barbuda will have a legislative response.
Yes we can limit men’s right to tenancy of premises, but I must make sure that there must be a
rational connection b/w it and a state objective- yes protecting rights of victim; but does it go There are a couple of things which help form and shape how disputes about property arise. One
too far, is it proportionate? Tracey thinks that serious questions could be raised about whether it is that contributions to the family in the Caribbean are sharply divided along gender lines.
is proportionate in the sense that it is not clear that a tenancy order adds anything more for a
victim of violence than an occupation order or that it adds so much more that one should have This means that women, still disproportionately undertake work in the home, managing the
an impact on the rights of third parties (landlord). home. Add to that the fact that women in the labor force despite their significant achievement in
education still earn less than men and have a much higher level of unemployment. The bottom
You can get an OO in relation to premises that is rented but do we need to go so far as to line is that women earn less on the whole outside of the home and they do work in the home that
transfer the tenancy to the victim to protect the victim’s right? Would it not be simply enough to they don’t get paid for.
give her a right to occupy? Thus questions arise as to the proportionality of the tenancy order as
this affects third party rights. This therefore leads to the dilemma that we are going to try and solve is that women are
contributing to the family in ways which are predominantly comprised of non financial
contributions such as raising children and managing a household.
24
How important should money/ financial contribution be to the distribution of property, given People arrange their relationship in different ways:
that there is significant difference in what both men and women bring to the table?
1. Allowance System: principal income earner in the family: that person gives an
Recent study done in T&T established that differences also exists b/w person who were married allowance to the other
and unmarried. They found that unmarried men earned less than married men and similarly with 2. Wife management/whole wage system: wives sort out all the financial arrangements for
unmarried women. That research also indicated that married workers were much more educated the household.
and likely to have attended college. 3. Pooling system: where resources are pooled but the parties together make the decision
about what happens to that resource. (Abbott)
Cf with US; most common law unions/cohabiting households in Caribbean included children as 4. Independent Management System: where each party has a separate management system.
opposed to US where only 35 % of common law unions have children. (Read slides for
information). Systems of ownership in the Caribbean:
1. Sole Ownership: period prior to the Married Women Property Act (MWPA) where
The conclusion of this research was that the labor market rewards men not women with a married women had no right to own property or to enter into contracts etc and they were
significant premium for marriage. considered as one at law, the superior party being the husband.
2. Separate Ownership: We have generally moved in the Caribbean after the MWPA to
Would any of this awareness be significant to what you think property/family law should do? It separate ownership of property which could be based on rules of who paid for the
may signal economic disadvantages b/w the parties. The concern may not simply be about the property or the intention of the parties. The basic principle of this legislation is that a
distribution of the property but about the larger welfare that the state provides for upon wife and husband can now separately own property. Marriage has no effect on
breakdown of relationships. ownership of property; essentially what you own is yours and what I own is mine; thus
your position is no different from if you were unmarried. In some cases, for married
When parties are granted a divorce, the evidence is that most women do not wish to retain persons and even unmarried partners, the law has intervened through legislation to allow
emotional or financial ties with their former husbands and, unless they were married to very the courts to alter the strict property rights of the parties. Marriage may however have
well-off men, they rarely ask for alimony or financial provision, but they insist that the men legal effects for property when one of the parties dies.
generously support their children and equitable division of the property. 3. Community Property: the assumption here is completely different from #2. Here,
marriage does have an effect on ownership. Upon marriage or cohabitation certain forms
The other thing to note before we move into the cases is that marriage is according to Tracey an of property becomes jointly owned. The focus could be on property acquired during the
economic union. Love may be in the picture for some but according to her, very few will marry relationship, except where there are special gifts or an inheritance. The only territory in
w/o prior thinking about their financial well-being and social status. It is therefore easier to own the Caribbean which has this joint regime is St. Lucia as their legal system is Civil. In
property when you are married- helps with social well being and uplifting of status. this territory there is a distinction b/w community property and separate property. Some
things would be considered separate but predominantly during the course of a marriage
The problem with this approach is that the minute that the union is broken, there may be anything which is acquired is going to be viewed as part of the community of property.
financial difficulties. So if that relationship is economically well off based on the fact of joint In a sense Jamaica has introduced a modified community property regime.
income, then there are massive consequences once the relationship ends. Family land
complicates the picture. What is the core concept with family land? Inalienability- that is it can’t In 2004 Jamaica passed the Rights of Spouses Act. That legislation separates property; applies
be pooled or gotten rid of; it belongs to the generation of family. What happens when “x” to spouses and include man and woman both single living together for 5 years as husband and
member of the family builds a house on the family land with girlfriend? Is the gf. entitled to say wife. It also separates the family home from other property. Where the family home is
that she owns a share in the property? concerned the legislation says that the family home is assumed to be shared equally by both
25
parties even if one party contributed more to it’s purchase/otherwise. There are certain ways of be heterosexual. Thus if you have a dispute b/w a same sex couple wherever you are in the
circumventing this for e.g. if the marriage/relationship was short or if it was given as a gift to Caribbean they would have to resort to trust principles likewise if a couple was not together for
one party etc. interestingly seems to apply where one of the parties dies as well. very long or may not have been ‘living together’ in the eyes of the law then you would have to
resort to trust principles.
All the other property (i.e. property apart from the family home) is going to be divided on a
discretionary basis. So the community property scheme is a fixed scheme which tells you If parties are married in St. Kitts & Nevis or in Antigua and Barbuda you would also have to use
exactly what you are going to get. The other way in which statute resolve property disputes is to trusts principles as there is no statute.
generally give the court a list of factors to consider (who contributed what etc) and tell them to
decide. In a sense b/c of this half/half sharing which seem to subsist during the course of the Another conflict that matters is where one party in a relationship dies: how is this relevant? Case
relationship, Jamaica now seems to have a modified community property. on point Otway v Gibbs. Dr. Otway and Gene together but not married to him: he died without
leaving a will. What happens to his property? Statute will say who gets what based on
Anywhere which has a fixed scheme for property or community property must give you a relationship to him. Normally the wife is the first to get. Why is Gibbs not on the agenda? B/c
chance to say that you don’t want that/agree or that under no condition is the house for eg going she wasn’t married to him. The next persons on the agenda are the children. How is Gibbs able
to be shared by both parties. It has to allow you to agree to some other arrangement and this is to claim that she has a share to a piece of his pie given that the laws of intestacy say it is the
called private ordering. Jamaica more than any other statute outside of the St. Lucia concept daughter?
now explicitly encourages and allows pre-nuptial agreements and pre-cohabitation agreements.
Thus you can agree otherwise but you will however need legal representation for both man and If you were in Barbados, T&T and Jamaica she would have been able to claim as a spouse. But
woman and it should be in writing. Doubt that many people have used this position. in this context where the law says that the daughter is entitled how is she able to claim? She was
in a long term relationship and thus claimed based on constructive trust. She is therefore saying
How the common law attempts to resolve property disputes? that no matter what the law says, if it is not yours in the first place, you can’t give it away. Isn’t
Constructive trust is the common law mechanism used to help resolve these kinds of disputes. It this what Gibbs is saying?
is even more particularly clear from recent cases that the resulting trust is not viewed as an ideal
mechanism is resolving such disputes as it is based on contribution. Thus you are only going to This property was never part of his estate, it didn’t belong to him in the first place, and her
get something if you have contributed money and secondly you are going to end up with a share argument is that she was the owner of the property, he was merely holding it on trust for her,
that is directly proportionate to what you contributed. and therefore the daughter should not be able to claim property.

Thus if you contributed 1% of the purchase price but end up paying all the household bills, or *Common Intention Constructive Trusts
take care of the children so that the partner can work an extra shift at nights, none of this will be How do we establish a common intention constructive trust?
taken into account in quantifying the shares in property. Consequently there is a lot of resistance ♦ Mens rea-common intention
to resulting trust being used to help resolve property disputes and the PC and HOL have said ♦ Actus reus- detrimental reliance
that it is the constructive trust that should be used.
Lloyds Bank v Rosset: tells us something about common intention and very little about
Do you have a sense of who might have to resort to the use of constructive trusts b/c of the detrimental reliance.
absent of legislation/otherwise? In a lot of cases, persons who are unmarried. If you are in the
OECS, this is the only way you can give relief to your clients who are unmarried. What does it say you have to prove to show common intention?
It distinguishes b/w the common intentions; there is express and implied intention. It also makes
If you are in Jamaica, T&T, Guyana, Belize, Barbados- there will be some accommodation for a big deal about the distinction. Which one do they give more weight? The expressed intention.
unmarried couples but generally those couples have to be in long term relationships and have to
26
What does Lord Bridge tells us about this express intention? You must find an agreement b/w In relation to the implied common intention the law has moved on from the statement that only
the parties that was made ideally at the time of the acquisition of property. You must find that direct financial contribution will be enough
arrangement or understanding which will be either oral or written. On the quantification side u must take a holistic approach to quantification-mean that u must
survey the whole course of dealings between the parties and u must take account of all the
You need some evidence of express discussion- however imperfect. The focus of the express conduct which shed s light on the question of what shares were intended.
agreement is on words- what was said. When we get to implied we will focus on things done.
What does the pc decide about the matrimonial home?
The last thing about Lloyds Bank is that it emphasizes that the common intention must be about
beneficial ownership. The case also tells us something about implied common intention. Midland bush v Cooke- if you are giving a gift to a couple you are giving it not to your child but
to both of them.
We are implying implied common intention from conduct. Lord brige tells us what conduct will What was the uling on the shares? No she couldn’t claim on this because she couldn’t prove any
suffice a common intention in this case- direct financial contributions and says famously that he detrimental reliance.
doubts that anything else will do. The most criticized dicta in years. Means that if woman does
household chores etc that’s not a direct financial contribution thus serious implication. Stockart v geddes- Clarke j had found common intention on a accumulation of promises etc.

Direct financial contribution- mortgage, payment etc non financial contribution- physically
participates in the construction of the house-indirect financial- paying other bills non-financial-
cleaning house etc.
Lord brige is also wrong – a direct financial contribution is not always evidence of a common
intention to share.

Ho does Abbott change things? What happened in Abbott? Here the man wasa medical student
meeting prospective wife while studying in Canada. The yr after they get married the mother
gave him a valuable piece of land mother also gave 400000 ec dollars to help in the construction
of house. The wife helps out in office and she has children n eventually works in the home until
about 1995.

Husband specializes ie further his studies in Canada. They were functioning with a pooling
system- joint account. How is the house arranged? The rest of money comes from the bank.
Where does the money from the loan go to? To the joint bank account before it’s paid out. Who
is liable to repay the loan? Both husband and wife and both take out insurance policy to secure
that. How is the loan repaid? From the joint bank account.

Abbott tells us that

It is the constructive not resulting trust that should be used.
A common intention can be inferred even where there is no evidence of an actual agreement
The key search is to ascertain the parties shared intentions whether they are actual shared or
imputed with respect to property as a whole or in light of their whole course of conduct.
27
Family Law Family Law
October 16, 2007 October 23, 2007

Property Rights and Distribution cont’d Worksheet 6: Maintenance

How the common law could help us resolve disputes about property b/w intimate partners. Maintenance is one of the easiest of the worksheets and will be thoroughly examined.
The examination in the course should be st and finalized by tomorrow- so next week she would Succession will not be examined in any great level of detail as it used to be. Follow the
have a much clearer idea of what is tested. percentage effort that is required nothing more. We will be looking at 6 cases from the
worksheet Unions Other Than Marriage to help us explore earlier material that we have looked
You need t oknw the dv statute very well. Continue with one jurisdiction in asking the question at.
of ground of divorce and the facts which hmay possibly e used. Playing closest attn to the
peculairites of the facts that need to be established relating to separation. Maintenance in the Caribbean
In the context of the Caribbean, when we speak about maintenance, we speak in respect of
The relationship bw hr and the consti and dv statutes. There will be 4 questions- do two. adults and it is not highly significant in terms of legal practice. In fact relatively few persons are
coming to court. The focus of divorce is usually on child support and on having an equitable
Property- evryod yhas to pay attn to application of trusts principles. They may also be very division of property. A key thing to remember is that when we speak about maintenance, it is a
helpful where one person dies. claim on income of the other party.

You must also knw what the statutory response is in a jurisdiction of your choice. Again I There are many moments at which maintenance matters:
encourage u strongly to keep witht the same territory throughout the semester. o During a relationship and
o Sometimes when it ends.
Word of advise-legislative framework- in previous yrs didn’t expect everybody to know the law o At death of one of the parties: be aware also that you can get some form of support from a
well one place. This year that is not the case- there will be no question which says or points u partner’s estate when they have died. When someone dies the term which is usually used to
directly to the jca rights of spouses act. describe maintenance is ‘Family Provision’.
In relation to the staturtes expect us to have one page of knowledge about the statute
So the question for next week’s class is whether you have Family Provision Legislation (FPL);
Had to leave to help wit jasac..get recording from trisha. 006 which is legislation which allows the court to award financial provision from the estate of
someone where they have failed to make reasonable financial provisions for a survivor.
28
 privatize this sort of care. The colonial government wanted to divest itself of the responsibility
Why award Maintenance? as a state for taking care of the welfare of poor individuals. In the case of the elderly, the
Maintenance is a controversial idea b/c we recognize relationships of dependency but also want children of those persons were identified as having the responsibility for caring for them and in
to encourage self sufficiency. Consequently there are a number of reasons why typically people the case of children-both parent but the father more so than the mother.
may think that maintenance is a good idea. But often there is recognition that there is a sexual
division in labor often places women’s work disproportionately into unpaid labor even when Clear notion that state doesn’t want responsibility for caring for the poor.
they work for pay outside the home. And that disadvantages in supporting themselves and
families when relationships breakdown. Some women assume entirely traditional roles where Saffron believes that maintenance is a good idea for 2 reasons- unpaid labor by women in
they don’t have access to an income in respect of their work, and they are even more household and violence with its contribution to dependency.
disadvantaged.
Unpaid labor- Should we be attempting to give maintenance in the traditional form (periodical
Even for women who do paid work outside of the home, it is well known even in the Caribbean payments) or should we be attempting to integrate those considerations (about unpaid labor
which speaks highly of women’s progress that women still earn less than men do even for the when dividing up property) in property arrangement?
same work. In most Caribbean jurisdictions as well there is no anti-discrimination law which
mandates equal pay for equal work or effectively enables you to make claim of discrimination in History of Maintenance: Unity of spouses & Common Law Duty to Maintain
the workplace. And even where it does exist for e.g. in Guyana and St. Lucia it is ineffective.
If we speak about maintenance today in the Caribbean, invariably we must be talking about
There is also strong concern now that dependency is accentuated by violence and that the statute. There is a residual role for the common law but ultimately that residual role is in
violence which we see in many relationships aggravates dependency and creates another context interpreting the legislation. It is not like property where there is a huge role for the common law,
in which we may want to consider support. here the answer must make reference to legislation.

There is also a sense that we might not be so keen on encouraging maintenance. In the sense Background:
that: Unity of the Spouses: The first thing you must bear in mind is the unity of the spouses: that the
1. Caribbean women have always had strong patterns of independence and economic rights husband and wife were one and together in law. The result of this was that the wife had no right
from men or that to own real property or hold her own income that she earned and that she couldn’t enter into a
2. Notions of gender equality demand that we encourage self sufficiency rather than contract to buy the necessities she needed for life.
dependency.
3. And then there is the real concern that even if we accept that women are more poorly off In those circumstances where the wife legally speaking had no right or access to property, it all
than men, the bottom line is that the men aren’t fairly well off themselves and can’t went to the husband and the law assumed that the husband had a duty at common law to support
afford to support women who are dependent on them. Maintenance rules are useful only her. So the duty to support her meant that he was obligated to provide her with necessities,
to the extent that there is someone with the resources to provide support. accommodation etc. However the duty to maintain was not a justiciable duty, it was no remedy
for the wife.
Any thoughts on the usefulness of maintenance? How do you think the law should be
developing? Do you think we should be developing strong laws which require one party to She could also pledge despite the non justiciability of the duty, her husband’s credit for
provide support for another or should we discourage it? necessity. She could not go to court. If she wanted separate maintenance from him she had to
establish that she had a good reason to be living away from him and that she was not in default,
The maintenance laws in Jamaica from the late 19th century require children to provide for their meaning that she had not deserted him (abandoned the relationship unilaterally w/o a good
parents and grandparents. Part of the logic of this legislation was that these laws were there to reason)
29
 court, how do reconcile this desire to move away from conduct being important to this new
She would not be able to use the court as long as she remained in desertion. But one single act development in legislation which conduct seems to be the basis of economic remedies?
of adultery disentitled her from maintenance. Thus if she was herself guilty of adultery she
could never be able to get maintenance unless the husband condoned or contrived the adultery. How does the DV legislation encourage independence? Does it? Is there anywhere it, ethos
(Similar to the fault based divorce) which says that we will give you relief but only for a short time till you sort yourself out?
Reflect on this, you will see maintenance statutes saying that it will give you relief but it is
A husband in West v West suspected wife of adultery and petitioned for divorce based on conditional on the fact of victim using it to make yourself better/independent. Should DV laws
adultery and stopped paying maintenance. (This is b/c if she commits adultery he is not entitled be making such conditions, encouraging independence more? Or do we want to say that there
to pay her maintenance). are two very different concepts in the maintenance and DV law.

He fails to prove the adultery (very high standard of proof), what should happen to the money What changed?
he hadn’t paid her? Remember he stopped paying her when he suspected her of committing
adultery and goes to court wanting a divorce on the basis of adultery which he failed to prove. Common Law Duty to Maintain: At the end of 19th century we had the MPWA which now
allows married women to enter into contract on their own behalf and to own property separately.
Should he be obliged to pay the sum he hadn’t paid her? Interestingly the court said no and that As that developed we also began to have very clear statutory regimes providing for
if he had reasonable grounds for suspecting her of committing adultery he was not required to maintenance.
pay her any support during the period before it was established that she had/ had not committed
adultery. So in this case, fault is overwhelming as a basis of maintenance. The key thing at the moment; the question as to whether you’re entitled to maintenance in
Caribbean during an intimate relationship is primarily one of statute and most Caribbean
It is one thing to say that you should get a divorce b/c the other person did something or violated jurisdictions have at least two types of legislation relating to maintenance.
the marriage contract. Is it obvious that that you should get money for that too? In other words
can you see a strong connection b/w wrong doing and support? Firstly there is Matrimonial Legislation dealing with matrimonial matters, sometimes with
property and almost always with divorce. Example: Barbados Family Act, T&T MPPA and
There were some suggestions from some members of the class that maintenance should be Jamaica’s Matrimonial Causes Act (MCA), Grenada- UK MCA 1973.
based on the ability to pay and the needs, not necessarily on the conduct of one of the parties. I
agree to some extent but believe that in some circumstances the conduct should be taken into The second piece of legislation typically allows for maintenance to be granted in the
consideration. Magistrates’ Court. What you will realize is that there are usually two statutes, one which gives
jurisdiction in the HC and one giving jurisdiction in the Magistrate’s Court. Often times they
Is the assumption that you are in a new relationship means that you no longer need support from have very different basis for giving maintenance.
old relationship?
Some exceptions:
Remember Minot v Minot: she had numerous relationships outside marriage; so is it that she T&T actually has 3 statutes and not 2: one for unmarried people which is the Cohabitational
should now be able to claim maintenance not giving any recognition to her adulterous behavior? Relationship Act. Thus there are two relating to married people and one for unmarried.
Interestingly Watson v Watson allowed a wife to increase her claim for maintenance because her
husband had been unfaithful. Interestingly there are some territories that have only one statute. Most notably the territory of
Barbados and also to some extent Jamaica where more or less the applicable law is mostly to be
What should we make of the development in DV law where as a result of DV you can now get found in the Maintenance Act of 2005.
periodical payments, the rent and mortgage paid, compensation, other economic remedies in the
30
The second distinction that should be noted is that one finds 3 different kinds of maintenance ▪ Movement away from conduct towards the needs and ability to pay
law in Caribbean. The way in which we will distinguish them: ▪ There is also a strong movement to encourage self sufficiency and independence (clean
1. One looks entirely at fault: which says that you have to be good to get it, and he had to break)
have been bad to get it. Thus it focuses on the wrongdoing of the respondent and the Movement towards recognition of unmarried couples
innocence of the petitioner. Those laws also typically focus on a one way duty from man ▪ See developments in Barbados, Belize and T&T and in DV Legislation: there is an
to women; or even if it goes both ways it doesn’t flow both ways equally. increasing recognition that if you allow married people to get maintenance then you have
2. The second one and the language used in those territories ‘willful neglect to maintain’. to allow unmarried people to get it as well. So at the same time that they are saying that
Where we hear this phrase it means that there has been a codification of the common law you must get less maintenance they want to give it to unmarried people. Thus we see a
position. The second approach mixes fault and no fault and often the language you hear firm tension in the T&T Cohabitational Relationship Act specifically.
here, is ‘a failure to provide reasonable maintenance’. Some movement back to fault
▪ Notice the importance of maintenance in DV context today and the importance of
3. The third approach says that conduct has nothing to do with/ is irrelevant to financial abuse.
maintenance. Let’s focus on the needs of one party, the ability to pay of the other and the
general circumstances of the relationship. Important Questions:
▪ What statutes are relevant? In most cases there is more than one piece of legislation.
Which court would you take your client? Assume you have access to both. ▪ Who do they cover? Do they cover married or unmarried people/ both men and women
HC: why? You possibly may look at the type or amount of money the client wishes to get. You in terms of a duty to maintain?
may have in some jurisdictions limited jurisdiction or maximum awards in the Magistrate’s ▪ Which court is given jurisdiction?
court. But even if there is not a maximum award, the ethos is that on the whole Magistrates give ▪ What is the basis of maintenance? In particular look at the role of fault/ conduct and the
less. needs and ability to play and whether the court is given any guidance or factors to be
taken into account.
You may also think about privacy- HC there is more privacy and will be heard in chambers
where only parties and judge is there. The access to the HC is much more restricted and this T&T- 3 Statutes:
signals that it is more dignified. It is more formal in the HC than Magistrate’s Court. o MPPA: earliest Act 1970s- fault probably would be found here; (married)
o FLA: second recent Act early 1980s- mixed; (married)
It is much more likely to see poor people in the Magistrate’s Court. There are strong o CRA: 1998 most recent Act and no fault (clean break?); (unmarried)
connotations about the nature of justice, the dignity of the proceedings depending on which of
the2. Is there ever a good reason to go to Magistrate’s court? It is cheaper as they may have T&T MPPA
access to court w/o lawyer and quicker. General maintenance application can be made while the relationship is going on can be found in
s.28.
Important Themes & General Trends
28. (1) Either party to a marriage may apply to the court for an order under this section
Gender neutrality on the ground that the other party to the marriage (in this section referred to as the
▪ Strong movement away from idea that maintenance is a duty of husbands to wives and a ‘respondent’)-
much firmer sense that both women and men can be obligated to each other and derive (a) being the husband, has willfully neglected-
support from each other. It is possible but extremely rare that men actually will get ▪ (i) to provide reasonable maintenance for the applicant; or
maintenance. ▪ (ii) …
Movement away from fault
31
(b) Being the wife, has willfully neglected to provide, or to make proper contribution towards, ▪ Has failed to provide reasonable maintenance for the applicant
reasonable maintenance- ▪ …
▪ For the applicant in a case where, by reason of the impairment of the applicant’s earning ▪ Has behaved in such a way that the applicant cannot reasonably be expected to live with
capacity through age, illness or disability of mind or body, and having regard to any the respondent; or
resources of the applicant and the respondent respectively which are, or should properly ▪ Has deserted the applicant
be made, available for the purpose, it is reasonable in all the circumstances to expect the
respondent so to provide or contribute; or Important questions therefore are:
▪ (ii) … 1. Which statute? T&T FLA
2. Who can apply? Both husband & wife
Important questions therefore are: 3. Does there appear to be any difference b/w the ability of wife & husband to apply? No
1. Which statute? MPPA 4. What about the basis of maintenance? Does it consider fault like precious Act? Mixture
2. Who can apply? Married persons, both husband & wife of fault and no fault. So there is one factor which is not connected to fault- if the R has
3. When can a wife apply? When the husband has willfully neglected to provide failed to provide reasonable maintenance for the applicant; but the other 2 are
reasonable maintenance for her. Willful neglect is a codification of the common law straightforwardly fault- R’s behavior and desertion.
principle; Gray v Gray
4. When can husband apply? Where the wife has willfully neglected to provide for him Here however we have something new; there are factors listed that should be taken into account
where he appears to be impaired or incapacitated, earning capacity in particular by by the court. The first deals with the resources that the parties’ have- resources will be a central
reason of age, illness, disability of mind or body. So notice that even though both men feature of maintenance application.
and women have a duty to support it is not the same duty. The woman has a much more
constrained duty under the MPPA. The second deals with the needs and commitments of the parties. The third deals with the
5. Which court? HC b/c it is matrimonial matter circumstances of the relationship. The other factor deals with contribution to the welfare of the
family. Is conduct relevant? It can be where it is just to take it into account.
NB. Focus here was entirely fault.
25(5). Factors which can be taken into account when exercising its discretion include:
Willful Neglect to Maintain: o The income, earning capacity, property and other financial resources which each of the
✔ Viewed as a codification of common law duty to maintain (Gray v Gray) which means that parties to the marriage has or is likely to have in the foreseeable future;
⇔ A wife who is in default cannot claim support and her rights to maintenance are o The financial needs, obligations and responsibilities which each of the parties to the
suspended while in desertion and destroyed completely if adultery committed; marriage has or is likely to have in the foreseeable future;
⇔ Must have a good reason for wanting to live separately o The standard of living enjoyed by the parties to the marriage before occurrence of the
✔ Duty to maintain is not gender neutral; it is different for men and women conduct which is alleged as the grounds of the application;
✔ There is no statutory list of factors to take into consideration; no guidance to the court as to o The age of each party to the marriage and the duration of the marriage;
what factors to be taken into consideration. o Any physical or mental disability of either of the parties to the marriage;
o The contribution made by each of the parties to the welfare of the family, including any
T&T Family Law (Maintenance, Guardianship & Domicile) Act: ss.24, 25 contribution made by looking after the home or caring for the family;
o Any other matter which in the circumstances of the case the court may consider relevant,
24. Either party to a marriage may apply to the Magistrate’s Court of the district in which the including so far as it is just to take it into account, the conduct of each of the parties in
cause of complaint has wholly or partially arisen for an order under section 25 on the ground relation to the marriage.
that the other party to the marriage
32
Further confirmation of the Mixed Fault system: ❖ Provision gender neutral
I✔There are 3 principal grounds: ❖ Unmarried couples qualify
1. Failure to provide reasonable maintenance ❖ Focus on needs and ability to pay
2. R’s behavior ❖ Economic disadvantages of intimacy recognized
3. Desertion ❖ Clean break encouraged
✔It is now given a list of objective factors to be taken into account: ❖ Conduct not ex facie relevant consideration
o Such as the means, needs, standard of living, age & duration of relationship, disability,
contribution to family. Notice that the language here is different as it starts off in the negative; said that the parties
✔But it is also opening up the possibility that conduct should matter don’t have a right. It focuses on people who have been economically disadvantaged and the
statute doesn’t encourage dependency.
T&T CRA
♦ Except where otherwise provided by the Act, one cohabitant is not liable to maintain the Cf the factors that must be taken into account with those under the Barbados Legislation.
other or claim maintenance form the other.
♦ Circumstances in which maintenance order can be granted: Important questions therefore are:
⇔ Applicant unable to support him/herself adequately b/c of care/control of child 1. Which statute? T&T CRA
under the age of 12 or disabled 2. Who can apply? Either of the cohabitants
⇔ Applicant’s earning capacity adversely affected by circumstances of relationship 3. What is the basis for applying? Applicant unable to support him/herself due to care of
and order would increase earning capacity by enabling A to study or get training child disabled/ under 12; earning capacity adversely affected due to relationship and
⇔ Having regard to all the circumstances it is reasonable order would enable A to study or get training- improving A and ending dependency
really; also if it is reasonable in the circumstances.
The court must have regard to the following in making the order:
▪ The age and state of health of each cohabitant;
▪ The income, property and financial resources of each cohabitant;
▪ The financial needs and obligations of each cohabitant;
▪ The responsibilities of either cohabitant to support any other person;
▪ The terms of any property adjustment order made under the Act;
▪ The duration of the relationship;
▪ A standard of living, that in all the circumstances is reasonable;
▪ The extent to which the applicant has contributed to the income, earning capacity, property
and financial resources of the cohabitant; (don’t see this in the other Acts)
▪ The terms of any order made by a court in respect of the maintenance of a child or children
in the care and control of the applicant;
▪ Any fact or circumstance that, in the opinion of the court, the justice of the case requires to
be taken into account.

No Fault
Notice a shift away from:
❖ No prima facie right to maintenance
33
 Intestate Succession
o Die w/o will
o The law decides using a specific formula
Testate Succession
o Testamentary freedom obtained generally
o Family Provision Legislation interferes with it

Think about it from 2 perspectives:

1. One perspective is that legislation may give the survivor an opportunity to say that the
deceased person did not make reasonable provision for their support; in other words that
Family Law s/he was dependent on him/her and they didn’t make provisions for him/her. That is
October 30, 2007 called Family Provision Legislation. Thus one solution to this quandary is that
legislation may give us an answer.
Worksheet 7: Succession
2. But there is a second and even more primary resolution which we could offer to this by
When we speak of succession, what are we speaking of? We are speaking of what happens to saying that it wasn’t the dead man’s property in the first place. Testators can only devise
property and resources when one of the intimate partners dies. and bequeath what they own. It is always open to a survivor, to say that the testator
might have been the owner at law but was not at all or entirely the owner in equity and
Background therefore was not in a position to ‘will’ it to someone else.
The basic principle is that we are free to say who gets our property when we die. In other words
there is testamentary freedom; you are free to will your property to whomever you choose to. (The argument is that listen, yes you didn’t include me in your will, but the house that
This means that you can decide not to give persons who you ought morally perhaps to provide you promised to your daughter is not your house to give to her; b/c you are the legal
for, such as your wife and children for e.g. owner but you are only holding it on trust for me).

However even though testamentary freedom is an important concept it has limited application in It is an extremely valuable tool in succession law; that where a deceased has made no provision
the Caribbean as only few persons make wills. Lazarus Black suggests that in fact that some for the survivor you have to make an assessment of whether the property in question actually
people, who make wills, make them to ensure that those who normally should get don’t actually belongs to the deceased. You can’t give what you don’t own.
get provided for. The part of succession law that has the greatest significance is intestate
succession (dies w/o leaving a will). Intestate succession is really governed by statutory The basic principle which we want to remember is that you can only give what is yours. Your
principles which say who gets what if you die without adequately making provision by will for estate can only include what you own. So an important resource for a survivor is to argue that it
your property. wasn’t the deceased property in the first place/part of his/her estate.

The problem in succession that Tracy is interested in is the situation where two people have Family Provision Legislation
been in an intimate relationship, one dies and they haven’t made provision for the surviving The starting principle is that you are free to say what happens to your property by will.
partner in their will. There’s another possibility that they haven’t left a will and the rules of However, in the UK in 1938 they enacted what became known as the Family Provision
intestacy doesn’t allow the other to get anything. We would therefore be interested in what Legislation. The idea is that if you die leaving somebody dependent on you, you have a
happens here. responsibility to make some provision for them from your estate if you have failed to provide
for them.
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 question what she would have gotten/expected if she had divorced husband- let us make the
So the core idea behind Family Provision Legislation is dependency and maintenance; it determination equivalent to her expectation on divorce.
doesn’t interfere with the will, the will stands. However the courts are allowed to take from the
estate to provide for the maintenance of a dependent. FPL allows some interference with testamentary freedom- it doesn’t invalidate the will. The
provisions of the will stand even though some provision is made out of the estate for someone
Who qualifies as dependents? Focus is on spouses in this semester. The goal/policy is to ensure else. All that the court is saying is that if you fail to provide for the person, what you reasonably
that a person who has become dependent on the deceased doesn’t suffer injustice by the should have, we may interfere. It is a highly discretionary power.
deceased estate.
You can’t as a judge under a FP application say ‘what a wicked man to leave only $50 to his
Here’s the idea; ‘I have been relying on you for my support and maintenance as your wife all of wife of 50yrs.’ There is no positive duty to support after death, court only intervene if it is
my life, you die and leave me nothing in your will, how am I to survive/live now? The idea is shown that the testator has failed to properly provide for someone where they had a special
that the court can from the estate provide the wife with some support. responsibility to.

This legislation gives the court some discretion to award reasonable provision out of the estate Lewis v Baker: decided under the T&T Wills and Probate Ordinance. Anthony Lewis married to
of the person who dies to provide maintenance for certain dependants. wife for many years and died in 1961 leaving a will. He left most of his property to his mother,
aunt and three children and gf. He left his wife from whom he had been separated since 1955
Key development in 1975: 1938 Act focused on Maintenance then in 1975 something changes (6yrs) $25.
in the UK. The concern was that the 1938 family provision legislation was too narrow in
relation to married women in particular. Wooding CJ who delivers the decision says that to him and her that was manifestly a
disinheritance. He also sets out principles that would apply in all of these cases; he says that
Let’s suppose- same e.g.- dependent on husband for support and he dies leaving nothing in will, o you’re not allowed to remake the will under the FPL;
court gave me provision for maintenance; would I have gotten something different if instead of o you can only intervene if you can affirmatively show that the deceased have failed to make
my husband dying I had divorced him while he was alive? reasonable provision for the dependant;
o what’s relevant depends on the circumstances;
There would be much more radical arrangements usually relating to property unless I am in o you have to be satisfied taking all the relevant considerations into account that he acted
Antigua & Barbuda, St. Kitts & Nevis or Montserrat. Generally in the Caribbean once you are unreasonably in not making a larger provisions for survivor.
married the courts have the power to redistribute. So the person dies w/o making provision for
you and all you can get is maintenance but if you had ended the relationship by divorce you In assessing the facts, Wooding continued and found that there was no doubt that the marriage
would have ended up with much more. was unhappy even though he couldn’t determine who was at fault. They were separated which
was sparked by wife’s parents and believed that it was she who left and not he who ousted her
Consequently the 1975 Act in UK decided that married women and men should not be restricted by either work or deed.
to what was required for their maintenance and that the awards/orders which were granted could
be much broader to now include divorce expectation- i.e. what you would have expected if you What is he suggesting here? That there is some fault on the wife’s part; she deserted him. In
had gotten a divorce. (Some territories include unmarried persons). these circumstances Wooding found that it wasn’t unreasonable for the husband not to provide
for her b/c she was not dependent on him, she accepted that he was no longer to support her for
One partner didn’t include the survivor in will: under the old FPL, the court would only award at least 3 yrs before he died and she appeared to be in desertion. The rights to maintenance are
to the wife what was needed for her maintenance; under the new FPL the court would ask the suspended when in desertion. Thus in these circumstances she was not entitled to his support
while he was alive and certainly not entitled to it after he died.
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 3. Dependants: only in T&T & T&T alone can dependants apply. This is defined as a
Where does FPL exists in Caribbean? person who immediately before the death of the deceased was being maintained wholly
or partly by the deceased. The requirement of dependant is not contingent on whether the
FPL in T&T person is man and woman/ intimately related it can be any kind of relation.

In Eastern Caribbean territories and in the Bahamas, the FPL is only applicable to married The deceased must have otherwise than for full valuable consideration, made a
persons. In other word only married persons are entitled to claim that reasonable financial substantial contribution in money or money’s worth towards the reasonable needs of that
provision hasn’t been made for them by deceased partner. person. Two examples:
Well off 60 year old successful lawyer- has a woman he has been involved with for the last
In Jamaica, T&T certain unmarried persons can also get family provision. Given what has been 30yrs Helga- lives in the same house, she contribute to groceries, everything, they have been
said about FPL purpose, you should expect that if unmarried people have access to FPL that building a life together –he also has a lady friend who is finishing up law school, who is in her
there is also legislation allowing those unmarried persons to apply for maintenance and property mid 20s- he pays her school fees and pays the rent on her apartment and gives her money to do
adjustment. as she wishes. Who is the dependant? The lady friend is the dependent in this situation.

T&T: applicable law: So the more equal the relationship is in the transfer of goods and resources, is the less dependant
o Distribution of Estates Act 2000 DEA you are.
o Succession Act 1981
What is Reasonable Financial Provision?
Who can apply?
For our purposes the relevant persons who can apply are: ‘question is simply whether the will or disposition has made reasonable financial provision and
1. Spouses; and now by virtue of the DEA not whether it was unreasonable on the part of the deceased to have made no provision or no
2. Cohabitations: The term cohabitant in T&T is a term of art. This one is defined as ‘a larger provision for the dependant’ Re Goodwin
man or a woman living with someone of the opposite sex in a bona fide relationship for a
period of not less than 5 years immediately preceding the date of his/her death. Is this So the principal question under statutes like T&T is: whether the will has made reasonable
similar to the definition we are familiar with under DV legislation and CRA? No; it financial provision and whether or not it was unreasonable or not to have not given the survivor
doesn’t have any minimum time period of living together under the DV legislation; more.
under the CRA, it creates 3 different categories of cohabitants who can apply for
maintenance or property: those who have been living together for 5 years, persons who Where in T&T you are dealing with a spouse or cohabitant, the courts can grant financial
have a child in common and; third where substantial contributions have been made by provision whether or not that provision is required for maintenance. In essence they can go
the applicant to the relationship & acquisition of property. beyond maintenance. If it is a dependant making the application, they are limited to
maintenance.
This requirement/definition of cohabitant under FPL is much tougher than the one you
will find under the CRA b/c it does contemplate categories where you don’t have to meet A range of orders can be made in T&T both income and property orders; under s.96 of the
the 5 years requirement. The other thing which is new is the requirement to be together Succession Act:
right up till the time the relationship ends/death. It also doesn’t mention ‘single’. Every ✔ Periodic payments out of the net estate, lump sum payment
other Succession statute in the Caribbean requires the unmarried partner to be single. ✔ Transfer of property
✔ Settlement of property
✔ Acquisition of property using assets of the estate and transfer
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✔ Variation of ante-nuptial or post-nuptial settlement Any thing strikes you about 1,2,3,4? Fault and conduct predominates: striking b/c Barbados has
no fault divorce. The Succession Act is the first piece of legislation in the Caribbean that makes
Distinction b/w T&T and other FPL elsewhere: provision for unmarried persons/persons in other unions. The FLA comes 4 years after this
⇔ Most statutes dealing with FP only give relief to married persons. legislation passed and they never amended these provision. Judicial separation doesn’t exist in
⇔ Those that give relief to other unions (Jca e.g.) restrict it to single man and single Barbados, restitution of conjugal rights-neither exists; desertion-no legal significance in
woman; T&T goes further, it is much broader than the Jamaican Inheritance Act, b/c Barbados family law regime and guilt of conduct which justifies…- very unfamiliar language
it gives relief not just to persons in other unions but it does not require that they be after the FLA.
single.
⇔ It is also unusual in that it makes provision for dependants. No other (except Bdos) There is the irony is that you have fault being the determinant of property interest on death,
gives relief to dependants. where fault has no role to play in maintenance, property and divorce in Barbados.
Unique Barbados Fixed Entitlement Scheme:
What do you think about the fixed entitlement? Are there any circumstances in which you
Barbados is unique. Up until now we have been describing discretionary ways in which the wouldn’t elect to get ¼ or ½ share? where I can establish that the property wasn’t deceased;
court can make provision for a surviving spouse who have not been provided for. Barbados has where I am given everything under the will; many people don’t elect b/c the will makes better
a completely different approach with a fixed entitlement. provision for them.

If a testator dies leaving a spouse and a child who is a minor or a child who is, b/c of some Example to think about:
mental or physical disability, incapable of maintaining himself, the spouse shall have a right to My husband and I were married for 10years, we jointly contributed to the purchase of a house
¼ of the estate. and it was transferred to both of our names as joint tenants. This house (worth ½ million dollars)
is the principal asset b/w us. Before I got married I had other property and when I die I want that
If a testator dies leaving a spouse and no such child the spouse shall have a right to ½ of the property to go to my nieces and nephews (worth US$60,000) and in my will I have left all the
estate. The survivor must elect to get fixed share within 6 months of probate of the will. remaining property to my nieces and nephew but it is a fraction of the value of the house.

It doesn’t matter what the terms of the will say in Barbados, you can get a ¼ or ½ share as a I die, what in Barbados is my husband’s position? He is entitled to elect to get ½ of my estate.
spouse. Which system do you prefer? The discretionary or fixed one? The only catch in What is the position of the house? He gets the entire house and then half of what I plan to give
Barbados is that you have to elect to take the ¼ or ½ share. to my nieces and nephews. Thus, we can see the dilemma presented, that many married people
and spouses in fact already own a lot of the property that is significant to them as joint tenants.
Who is entitled to apply? So the property will immediately devolve to the survivor after death. It doesn’t go into the
o A spouse is entitled to apply which includes estate.
o Single man and single woman living together for 5 years immediately before death. There are some circumstances in which a person by will wishes to make provisions for other
Excluded if: people b/c they are saying that everything will go to the surviving spouse anyways. One place
o Deceased obtained judicial separation (only in territories based on UK Act) where there is a genuine restriction on testamentary freedom is Barbados.
o Spouse failed to comply with a decree of restitution of conjugal rights
o Spouse deserted for more than 3 years Jamaica
o Spouse guilty of conduct justified deceased living separate and apart. Think too of Jamaica as a territory that has FPL. It means that persons who are married or living
o A dependant can apply for maintenance out of the estate of an intestate together as husband and wife, single man and single woman for at least 5 years immediately
before death can apply for reasonable financial provision in Jamaica.

37
Geddes case: Helga- prior t 2004 when her case was decided is she entitled by legislation to as j There has been a dramatic shift and change in Jamaica, which in a much more rigid way than
the court to redistribute the property of herself and Geddes? No, and in fact she fails. Same 1990 Barbados institutes a fixed entitlement to the family home.
for example, in Jamaica instead of putting the things on flatbed truck, he opts and dies, not
marrying the other woman yet and leaving no will. What is Helga’s position when there is no Where does this legislation exist?
will? o Anguilla, Bahamas, Guyana, Jamaica, T&T and Turks & Caicos
FPL in all instances is a fully discretionary approach to property and support matters. Which
The rule of intestacy will treat her as a spouse; she will get the majority of the estate. Suppose other statue have fully discretionary approach to property? BFLA, CRA.
he leaves a will and doesn’t include her? In Jamaica she would have been entitled to apply under
the FPL for reasonable financial support. While he’s alive- nothing, if he dies immediately she Jamaica, T&T and Guyana allow FP to be sought by married and unmarried persons using a
gets something. The irony of Jamaica is that prior to 2004 an unmarried woman or man could very narrow definition. T&T has the most liberal definition of which unmarried persons can
participate in the estate of their spouse or partner if they died but not if they were alive. apply b/c they don’t have the requirement of ‘single and b/c they also include dependants.
PRSA comes in 2004 and gives relief to married and unmarried persons; so prior to 2004 Helga
is unable to say that there is any legislation which allows the court to redistribute or adjust the If you are in a territory that does not have FPL or a client who doesn’t qualify, what can you do?
property of herself and Geddes. You can use trust principles essentially to decide. An example of this is Otway v Gibbs.

So let us change the scenario a bit, and assume that relationship ends b/c Geddes died before. If So even where you have FPL and u have an applicant that doesn’t qualify, you can argue based
he had died and not left a will she would have been adjudged the spouse. If he dies leaving a on trust principles.
will but doesn’t include her, she is now entitled to say that she is entitled to apply for FP b/c he
failed to provide for her. Regimes
o Territories that have FPL: Anguilla, Bahamas, Guyana, Jamaica, T&T and Turks & Caicos;
Look to s.6(2) of the PRSA: subject to s10 (agreements); don’t care what your will says about discretionary maintenance (can be more for spouses)
family home, the law is going to deem that the family home is owned by the parties as joint o Territories that don’t have FPL: can only say who owned what before death using trust
tenants. So at the death of one of them the family home goes entirely to the survivor. Here is principles (MWPA)
another instance in which testamentary freedom is extremely ignored. o Special case of Barbados: fixed entitlement for spouse

This is a deeply problematic section for a number of reasons. It says subject to s.10 which Exam tip:
speaks about agreements. Can you normally say what happens to your property on death by an What matters for exam assuming that you have a basic understanding of what is possible when
inter vivos agreement? No, as you have to comply with the Wills Act. So one problem is how do someone dies, you will be asked about what happens when someone dies leaving a will but have
you reconcile it, this opting out with the fact that normally you are required to comply with the not provided for someone.
Wills Act if you are making a disposition or stating what should happen to your property on
death. I am not asking you the details of the FPL. Essentially, whatever context in which you’re asked
to resolve dispute about property and money will be one in which there is no statutory response
The second concern is does s.7 apply? S.7 deals with varying equal shares. Can the court vary which can help; there will be no FPL, no Barbados legislation, no Jamaica PRSA which can
the shares for e.g. 100% to survivor? It is not clear whether they can. Is this an absolute rule that help your client, because your client will obviously not qualify (b/c they don’t meet requirement
can never be altered or adjusted? Is the court to be given absolutely no discretion to come to of who a spouse is) meaning that they don’t meet the criteria, therefore may have to rely upon
some other outcome, other than 100% to survivor? trusts principles.

38
In other words you can expect to be asked to think about a scenario which looks more like o If you are in a territory which only married people can apply for relief, it is
Otway v Gibbs in the sense that the person you are advising clearly can’t fall within any usually one that modeled UK MCA in which if there is a fully discretionary
traditional definition of spouse, but the only way you can realize that you have no legislation to regime for property distribution in which courts integrate property and traditional
help them is by first knowing what the legislation says; so have a basic understanding of who maintenance considerations.
qualifies. 2. What if you are not in that territory and legislation offers relief to both married and
unmarried persons for e.g. in T&T, Barbados, Jamaica & Belize? There are 2
Come prepared to discuss question on pg 9 of slides. possibilities:
Ws10003-workshop on maintenance o One common statute that applies to both e.g. Barbados & Jamaica.
o Jamaica for e.g. says who can apply for relief- spouses.
Backtracking to Property Distribution o Barbados adds a new category- persons in unions other than marriage
o Some territories have a fully discretionary approach in which they consider
Look on the back of the property redistribution chart for notes written and on the part C of the property and maintenance at the same time e.g. Barbados & Belize.
worksheets. 3. How is Jamaica different from Barbados?
There are 2 possibilities when a relationship breakdowns. o Jamaica has a fixed dimension in relation to the family home; also there is no
The first question we normally ask: discretionary element for other property: maintenance and property
1. Is there a statute which allows the court to adjust/ redistribute property on breakdown of considerations are separate.
marriage? 4. How is T&T different?
o The answer can be yes/no depending on certain factors. o There are 2 separate statutes: one for married persons- MPPA (which is a
o Only a couple of places have no statutory regime for redistribution: Antigua & version of the UK MCA); and one for unmarried persons- CRA
Barbuda and St. Kitts & Nevis o Do they consider property and maintenance under the CRA? No, they are
2. The second question is who qualifies for relief under the statute? separate and distinct.
o It may be married or unmarried persons or both. So the key question to answer is: is there a statute dealing with redistribution of property?
o There are some territories where only if you are married will relief be granted. o If no: court can only say who owns what/property: Antigua & Barbuda
o Such territories are normally based on the UK MCA 1973. o If yes: who does it apply to?
o All these territories such as Anguilla, St. Vincent, Grenada, BVI, Dominica and ⇔ Only married persons- Grenada, Dominica
St. Lucia are based on the UK MCA 1973. ⇔ Common regime for married & unmarried- Barbados, Jamaica.
o Who? Only married people in the territories that have legislation based on the ⇔ Separate regime for married & unmarried- T&T
UK MCA. ✔ Applies to unmarried couple: man & woman living together as H+W- Jca
Other questions: ✔ Applies to unmarried couple: on a bona fide domestic basis- T&T CRA
1. What kind of regime exists for distribution of property? ✔ T&T CRA: single man & single woman
o Answer, under legislation modeled like UK MCA: fully discretionary: this ✔ Minimum cohabitation period: T&T has range of options, Bdos & Jca
means that court will decide based on guidelines enumerated. What is the legislative framework?
o What things are listed under the enumerated factors? Contributions, needs, ✔ Is it fully discretionary for distribution of property? Bdos FLA
resources and circumstances of relationship. Conduct in some territories may be ✔ What contributions can be taken into account? Does it include non-financial
relevant. contributions? Yes, everywhere.
o Key thing there: courts are integrating traditional property consideration and ✔ Can it include needs, resources and circumstances of relationship? Yes- Bdos; No- Jca &
maintenance (needs, resources and circumstances of relationship) T&T CRA.

39
 ✔ Fixed entitlement: Jca; when can this be deviated from: s.7- if provisions made for
private ordering. The statutory response is Family Provision law is the statutory response. What is its goal? What
is the key idea behind this statute? It is not an approach that interferes/invalidates the will. It
takes from the estate to assist the survivor. In what circumstances? Where the
petitioner/applicant was a dependant.

I am in Jamaica, outside gf of Mr. Joe who did not provide for me in his will, I was completely
dependant on him and expect that the courts will take this into account and grant me some relief.
Is that the idea?

We are going to speak about the historical progression. Two things we want to remember about
the starting provision of FPL- dependency was a central element. However the statute defined
who acceptable dependants were: who were generally spouses, children. The starting idea is that
the core idea is that a deceased who hadn’t made provisions for a dependent who is a spouse or
Family children may be obliged to do so out of their will.
November 6, 2007
It shifted in the UK in 1975 to an idea that we can possibly go beyond spouses and children. We
Succession Cont’d can include a broader category of dependants who may be neither. So the idea of dependency is
extended- that’s the first.
Will meet on Monday next week- review 9-11 Wednesday- DV & HR implications 4-6.
The second approach which we see a shift in, is that for the one category of dependants i.e. the
We coming back to complete a discussion on succession using a problem but this problem will spouse- in one way dependency is broadened and in the second way the relief for spouses is
encompass 3 worksheets: property, succession and unions other than marriage. In the course of deepened to consider not just maintenance but broader considerations based on divorce
today we will also look at another case Kimber v Kimber expectation- i.e. had the relationship ended by divorce.

We watched a power point presentation on a DV case where victim’s face was shot off and her That is one statutory approach. The first thing we should note is that this is a measured
mother murdered. constraint on testamentary freedom. It doesn’t dispose of the will; so there is no idea in the
Caribbean about challenging the will; it is making reasonable financial provision from the estate
What you think the laws response is at the moment when someone in an intimate relationship of the deceased.
dies?
There is one instance in which there is a fundamental disruption of testamentary freedom, in the
What happens when one party to an intimate relationship dies and the surviving partner believes territory of Jamaica, but Barbados to another extent- it gives a fixed entitlement regardless of
that adequate provisions weren’t made for them. Is the law going to respond to that or do what the will says. Thus, in the other jurisdictions the court has discretion in deciding whether
anything to assist the survivor? you should get financial provision or not Barbados has a much more disruptive regime, in the
sense that it is fixed: what you get depends on certain facts- if a child under 18 years (disability)
Yes the law can if s/he was a dependant. What is the context in which ‘dependants’ will be is involved a ¼ share, if not child ½ share granted.
recognized? Statutory context. Thus we recognize that we may have a statutory response. Can
you broadly describe what the goal of that statue might be or is? What does it aim to do?
40
Remember how Barbados ironically says that this fixed share can be interfered with only in Name of statutes that will be applicable to the situation highlighted (i.e. one of the parties die) in
instances of fault which is no longer recognized under the Barbados Act. Barbados: Barbados Succession Act
T&T: T&T Succession Act and Distribution of Estate Act
Barbados does much more. Jamaica in their Act as well, that where one of the spouses has died, St. Kitts & Nevis: Intestacy legislation /probably Admin. of Estate legislation
the family home if not held on joint tenancy, is going to be deemed to be held on joint tenancy Jamaica: Rights of Spouses Act and Inheritance Act.
and thus the surviving spouse will have half despite the fact possibly that no contribution was
made. Jamaica is exceptional***. What is exceptional is that it has a statute which deals with property
during the lifetime of the parties that also have relevance when one of the parties dies. That
Is this a legal rule (that it will be held on joint tenancy- where survivor will get all?) or doesn’t happen anywhere else. And Jamaica goes out of its way to say that generally the JRSA
presumption (this is rebuttable)? Jamaica may provide the strongest position for surviving applies only when the parties are alive- the only instances where it applies after death is in
spouses. It is more of a legal rule than presumption. Thus the question is, is there any respect to the family home- fixed entitlement to the family home under the RSA and a
opportunity to rebut the rule of 100% to survivor? Can you rebut this if the parties are alive? discretionary entitlement under the Inheritance Act.

Doesn’t s.7 allow them to do that? It does. 50% to both parties while they are alive, can this be So to summarize: look on map given
altered via s.7? Yes. So the question is whether in relation to the arrangement on the death of Common law-in testate succession the general rule is that there is testamentary freedom- you
one of the parties, there is an equal opportunity to rebut the 100% rule like there is when they can leave your property to whoever you wish. The law doesn’t oblige you to leave property to
are alive. anyone. This however has been constrained by statute in some places.

T&T: does the CRA help your client who is a surviving partner in trying to resolve disputes There are jurisdictions in the Caribbean where there are no statutes that will intervene to give
about property? No, it applies only to parties when they are both alive/living cohabitants- you reasonable financial provision if no provision is made for a survivor. In those jurisdictions
applies when they are alive. is the survivor left without any recourse? No; they can ask the court to say who owned the
property prior to death. So even in territories that don’t have FPL it is still open to the court to
Can the BFA apply? No, it only applies when the parties are alive. You can’t cite the BFLA, declare the ownership of the property before the person died- if they didn’t own it they cant will
T&T CRA, MMPA or Belize SC Act, St. Vincent MCA; none of the matrimonial statutes it- in accordance with trust principles.
dealing with property adjustment applies on death.
There are however territories where there are constraints on testamentary freedom. Describing 3
The other thing you should emphasize is that death changes everything in family law. There is types of constraints: one is discretionary: so it is that your will stands but there is someone who
no continuity in what laws are in relation to property across life and death. was a dependant or qualifies under one of the categories- or says that reasonable financial
provision not provided the court will give it.
A new set of rules apply once somebody has died in relation to their property and those laws are
called succession laws. They deal with intestacy and testate succession. You will find a series of Many territories in the Caribbean only allow married people to get reasonable financial
probably 3 statutes in your jurisdiction: an intestacy law/intestate estate Act which gives a provision/access this legislation- Bahamas for e.g. However there are territories which include
mathematical formula for who will get the property- not interested in this. You may also have a both married and certain unmarried couples. Which unmarried couple usually get? Cohabiting
Succession Act/Administration of Estate Act. You may also have Family Provision couples, man and woman living together usually for at least 5yrs right up until death and must
Act/Inheritance Act/ Wills act. These are the collection of laws that tell you what to do when be single in all territories except T&T which don’t insist on the parties being single.
someone dies.
So T&T for e.g. gives reasonable financial provision for married and unmarried persons under
the Succession Act.
41
There are territories; Barbados is an instance, where there is a fixed constraint on testamentary Advise Carmen.
freedom. You are entitled as a spouse (defined as single man and single woman living together
How would your answer be different if Billy was still alive, ha abused Carmen and
at least 5 yrs immediately b4 death) in Barbados to apply or elect to get your half or quarter
share. Particularly in case of what single requirement means and the implications of it, the case she was applying for relief under DV legislation.
of Kinch v Clark is helpful.
What are the first few things you are going to tell Carmen?
Jamaica has a fixed entitlement to the family home but a discretionary entitlement to everything o Signal to client that this is a succession concern: the main reason for saying this,
else. Jamaica has two statutes: one which allows for reasonable financial provision and the is that the rule that may have applied when deceased was alive may not apply
other, a fixed entitlement in relation to the family home. By comparison, is the definition of upon his death, there is a new legal regime upon death.
spouse the same as that under the Inheritance Act? It is the same to the extent that it requires a o What is the big impediment for Carmen here? The principle of testamentary
single man and a single woman to be living together for 5yrs. Inheritance Act however differs- freedom- there is a will and it says that the house must go to his wife.
require them to be living together right up until death. o Thus you would have to speak about property rights: speak generally at first, two
possible approaches: one prescribed by legislation (which may exist in some
Question on slide 17 pg 9: territories, not everywhere) and one prescribed by common law (trust principles-
wasn’t the property of the deceased in the 1 st place).
Billy, a worker in the tourist industry, and Carmen, a factory worker, became
o Name the jurisdiction that you are using
involved in 1982 and have 2 children together, now aged 10 and 12. Their relationship Common law response: what does this mean? Go on the notion that the deceased didn’t own the
started while Carmen was living at her mother’s house. property in the first place- look at trusts principles. Key thing to remember is that we are
deciding ownership of property pre-death b/c death changes everything. We have to say that
In 1992 Billy buys land and materials to build a house. Carmen always assumes that while he was alive he did not own it and upon death the property belonged to Carmen in part or
in full. That is one response; common law doesn’t interfere with will/ testamentary freedom, it
the house was for their family. Carmen helps mix cement, carry blocks and other
simply says that the property wasn’t his.
tasks in the construction of the house when she returns form work in the
evenings and after she tends to the children. Statutory response: survivor qualifies; how do you describe these responses that interfere to
different degrees with testamentary freedom? A discretionary jurisdiction for the superior courts
Carmen also uses her salary to pay for all the children’s needs and food during to award reasonable financial provision where this has not been given. E.g. in Jamaica, T&T.
the construction of the house. When the house is completed she cleans up the
Is there anything stronger, a stronger interference with testamentary freedom? Yes, you may get
interior, buys some furniture and appliances, and fixes up a garden with vegetables a fixed entitlement in Barbados and/or in Jamaica, they also give you what may be an even
and ground provisions at the back of the house. stronger entitlement. The approach that applies in Jamaica- the Inheritance Act says that you can
get reasonable financial provision if none has been made for you. But in determining whether or
Billy is killed in a car accident in May 2007. She always knew that Billy had other not reasonable financial provisions have not been made for you, the court is going to look at the
position after death.
women because even when the house was completed he would spend two or
three nights somewhere else. However Carmen discovers on his death that Billy In other words the argument under the Inheritance Act in Jamaica is that reasonable financial
got married to a tourist woman in June of 2006 and has left everything in his will provision have not been made under the will or by rules of intestacy but you have to now add to
to his wife, including the house which she is living in. that rules under the JRSPA, but you have to consider family home based on JRSA.
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JRSA operates first which is now part of succession rules, it now tells us where the property T&T- does she qualify as a spouse under the Act? Yes, no requirement for parties to be single.
ends up; the courts under the Inheritance Act will access the status quo which includes what has
happened to the property by virtue of the Wills Act, the RSA and the Intestacy Act. So it is only We have overcome the ‘single’ requirement; what else do you have to overcome?
on evaluating what has happened to the property will you be able to determine whether ✔ Legally speaking ‘living together’ connotes those things which we traditionally associate
reasonable financial provisions have been made. with consortium vita. In the same way we look to the consortium vita being broken
down to see if there is separation, it is key in deciphering whether the unmarried couples
Where next for Carmen? have been living together. Consider facts like, what the couple did; did they have sex,
✔ Choose jurisdiction and advise Carmen did she cook for him etc)
✔ There are two sets of argument generally open to Carmen. How are we going to proceed ✔ When do they actually start living together?
next? Jamaicans- must first go to the JRSA; Barbadians must go to the Succession Act.
Delzin v Stow- interpreted what living together means under the CRA; nice case for women
Why are the Jamaicans obliged to start with the JRSA? Woman was a street vendor- becomes extremely wealthy; start relationship with man who
✔ If it applies you have to consider this first: b/c there is a fixed entitlement as it relates to works for her; she ended relationship when he committed acts of DV on her; he then claims that
the family home, there is no way of altering it. Carmen can’t qualify under this Act he is entitled to 50%.
however b/c he is not single, he’s married.
This case explains that the CRA is ideologically different from the BFLA and JRSA; the CRA
This is where Jamaica will start. Does the JRSA apply? If yes, it applies a fixed outcome. No never intended to put married and unmarried people on the same level. What is the difference?
way of going around this if the Act applies. That distinction made b/w statutes dealing with property adjustment… Tracey made and asked
question: what are the things we traditionally look at in property adjustments and maintenance
If you are in Barbados what is the question that you should ask? ones- who contributed what, maintenance- the needs, resources and the circumstances of the
✔ Do the provisions of the Succession Act apply? No, as he is not single so the Act relationship.
wouldn’t apply.
The court said that the CRA considers contributions but not maintenance considerations. In
If you are in T&T, does she qualify under the Succession & Distribution Act? deciding what ‘living together’ means it took guidance from a New Zealand statute. Valuable
✔ Yes, b/c there is no requirement for the parties to be single. But she may choose not to authority for thinking about what consortium means.
apply under this legislation; she has an option as there is a difference b/w a territory that
mandates that the property must go to her as opposed to territory where there is an Kimber v Kimber –same ideas on consortium. Nice touch in the case of Delzin v Stow is whether
option. you have been compensated for your contributions. Payne-Barbados case- the proper response
should have been, not that they were not living together after but merely whether she was
The starting point should be if there is legislation that constrains, qualifies testamentary freedom properly compensated for the work she was doing around the house. Barbadian case- careful
does it apply? examination of them; what does it mean to be living together across different household, when
will the courts acknowledge that?
The answer in Jamaica is- No, it does not b/c he’s not single; case on point: Kinch v Clark e.g.
of how the requirement that the parties be single may be an injustice to a party in a subsisting Tutorial pg 96: Andrea
long-term serious relationship.

Barbados- answer same as Jamaica

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Jamaica- Maintenance Act. Bdos-FLA, T&T- numerous systems; best illustrations. Domestic
violence may impact a person’s ability take care of themselves. But should the law then require
that the victim get relief from the DV legislation

Does the maintenance legislation influence what we know about the DV statute. The
maintenance statute all kind of saying that we are only giving help to for victim to recover- get
on one’s feet. Should we argue that DV should have the same effect? Should we now insist that
when you are going to get inter-monetary relief/payment o f mortgage under DV demand
independence like maintenance?

Issues:
Whether Donald given that he’s a male is entitled to financial provision and assistance. Yes he
is.

That major issue normally jumps out at you very plainly. You must jump to the bottom and see
the instructions. Also have to know the relevant facts and irrelevant one- in this fact pattern- the
harassment.

Am I being asked about remedies of DV? No. but consider whether or not the DV have any
relevance. You can say conduct may be relevant but under the particular scheme conduct is not
relevant.

This may be a way of getting maintenance through the back door. Violence may be a relevant
consideration.

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