A GUY'S VIEW - What does single mean?
The recent Caribbean Court of Justice (CCJ) decision in Selby v. Smith has evoked a lot of discussion in legal circles. This judgment should be of interest to all live-in partners in Barbados.
For the purposes of this article, the relevant facts are that Smith, a single woman, lived with Selby, a man who was married at the outset of their relationship but was divorced, and therefore single before his death. He was married for a substantial part of the period during which they lived together. He left no will. The issue for determination was whether Smith was the spouse of the deceased at the time of his death.
Section 2(3) (a) of the Succession Act defines “spouse”. Subsection (4) is also important: “For the purposes of this Act, reference to a “spouse” includes:
(a) a single woman who was living together with a single man as his wife for a period of not less than 5 years immediately preceding the date of his death;
(b) a single man who was living together with a single woman as her husband for a period of not less than 5 years immediately preceding the date of her death.”
(4) For the purposes of subsection (3), a reference to a single woman or a single man includes a reference to a widow or widower or to a woman or man who is divorced.”
At first instance, Dr. Alleyne J., described the term single as no more than the description of the status of the parties to the relationship at the time of the death of the deceased. The Court of Appeal did not agree with him. They took the traditional view that singleness must have been the state of both parties to the relationship throughout the five years required by the legislation.
It seems that the judge at first instance sought to give effect to what he perceived to be the intention of Parliament when it passed the Succession Act. This provision was revolutionary and was designed to engineer a social circumstance; that of giving effect to the relationship norm in our society.
For whatever reason, persons living together in long term relationships without marrying is a common feature of our social landscape. The traditional view that if you are not married then you have no rights was a foreign import that really did not fit our circumstances.
In our space, more relationships go sour than those that work, hence, it is normal to find that a steady relationship is between persons who have had earlier relationships. In essence, where a marriage breaks down and the parties move on, unless they divorce they remain married, but in name only. Their reality is two single persons living separate lives.
In section 102 (1) of the said Succession Act, Parliament acknowledged that a person who has not been living with their partner for up to three years before the date of his death should not be entitled to benefit from his estate. Subsection (4) is also instructive: “(4) Where a husband and wife have ceased to cohabit with each other and have been living apart continuously for a period of 5 years or more immediately preceding the date of death of either of them, the survivor shall be precluded from taking any share in the estate of the deceased as a legal right or on intestacy.”
The literal meaning of these provisions is that the fact of going through a marriage ceremony ceases to place a responsibility on the other party to that ceremony if the parties cease to live as man and wife for the periods prescribed in the Act. If one is barred by law from benefiting as a spouse, in the absence of a divorce, why would it be difficult to pursue the purposive approach to statutory interpretation and grant deserved benefits to the persons who are living in a committed relationship, even where there was no divorce from a previous partner?
Barbadian wives have a habit of abandoning their husbands and turning up at their death to claim their property, simply because they may not have completed divorce proceedings. This behaviour is wrong on every level, including in law.
Trinidad and Tobago has gone ahead of us in this respect. In the case of Narine v Chune et al, TT 2012 CA 19, a married man living with an unmarried woman came up for consideration in a case of intestacy. The trial judge showed that in the year 2000, Parliament removed the requirement that the cohabitants must have been single for the survivor to be entitled to succeed. Cohabitants living together for more than five years were granted rights, regardless of their marital status. Based on the literal interpretation of our Succession Act, Barbados is not there yet, but it should be. When all the provisions of the Act are taken together, including the conferment of rights on the unmarried spouse, and the exclusion of the married “spouse” where the relationship is not subsisting, it seems reasonable to conclude that the Trinidad situation is exactly where our Parliament intended us to be. However, it lies within the power of Parliament to put this beyond doubt by passing the requisite amendment.
Were the issue of singleness to arise in a Family Law Act matter, different considerations might be determinative of those issues. That Act was also an exercise in social engineering. It gave legitimacy to relationships where the parties were not married to each other. Section 39 provides the following definition of what is called a union other than marriage: “Union other than marriage” or “union” means the relationship that is established when a man and a woman who, not being married to each other, have cohabited continuously for a period of 5 years or more and have so cohabited within the year immediately preceding the institution of the proceedings.”
Importantly, that definition has no requirement of singleness. The cohabiting parties may be married, just not to each other. It is reasonable to submit that the gravamen of the matter of inheritance rights, as in family matters, is the quality of cohabitation, not the marital status of the individuals involved.
On the point of the duration of singleness, the CCJ said, “It can make no difference whether the deceased had been divorced or widowed for more or less than five years. Let us take a hypothetical situation. A single woman and a married man lived together for more than the statutory period of five years before deciding to marry each other. The man became divorced and died the day before the marriage was to take place. Take a variation of the same scenario, and say the man died the day after they got married. If one accepts that the purpose of the law was to make cohabitation instead of marital status the basis for inheritance, the sole relevance of the status of the deceased as a divorcee, or widower or neverbeen-married is to remove a bar that would otherwise exist to the law treating a single person in union with an un-divorced person as a spouse. This results in a straightforward proposition: if a couple has lived together as spouses for more than five years the law will treat the one, upon the death of the other, as the surviving spouse for the purposes of succession, absent the disqualification of a subsisting marriage at the time of death.”
But is a marriage subsisting where the parties have no relationship, even if not divorced?