Musings: When is a man single

The right of the survivor of a non-marital union to benefit from the estate of the deceased partner does not depend on the status of marriage, but on the duration of cohabitation with the deceased immediately preceding death. –per Byron P in Smith v Selby [2017]CCJ 13

The courts of law have through the years been called upon to make some surprising determinations. One English case involved the intriguing issue of whether ice cream could be considered meat for the purposes of the Sunday Trading Act 1994; another the more tendentious matter of whether a bicycle was a carriage under the 1835 Highway Act. We have seemingly now added our own quirky issue to this list. The Caribbean Court of Justice [CCJ] was recently called upon to determine when is a man to be treated as single for the purposes of the Succession Act.

The critical issue in the decision of the CCJ last Friday was not, as some aspects of the media would have it, whether a “common law” spouse generally may inherit or succeed to the property of her cohabiting partner on his or her death intestate. That issue had been settled as early as 1979 with the passage of the Succession Act. According to section 2 (3)(a) of that Act:

“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…” [Emphasis added]

There, the local legislature had given effect to the prevailing cultural norm locally, whereby a large number of relationships existed without “benefit of clergy”, as that expression is popularly understood. As I recall, there was not a lot of religious objection to this then and, if there was any, I must have missed it because I was abroad at that time.

This initiative further consolidated the earlier enactment of the Status of Children Reform Act whose section 3 provides as follows-

For the purposes of the laws of Barbados, the distinction of at common law between the status of children born within or outside marriage is abolished, and all children shall, after 1st January, 1980, be of equal status; and a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside of marriage-

and of the Family Law Act 1981 that recognized the concept of the union other than marriage in the following manner-

“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.”
The critical issue in the recent case between Ms Katrina Smith, the appellant and Mr Albert Selby, the respondent, was rather whether Ms Smith satisfied the statutory definition of “spouse”, given that her cohabitant, who had died intestate in April 2008 and was the brother of the respondent, had been separated but not divorced from his wife for the first two years of the claimed cohabitation. He was eventually divorced in 2004.

Naturally, therefore, the argument of the respondent (who stood to benefit under the applicable law of succession on intestacy, since his brother would have had no spouse, no issue nor mother nor father) was that Ms Smith did not satisfy the statutory definition of spouse, not because of the failure to contract a marriage with the deceased at all, but rather because the deceased was not “a single man” within the meaning of the Act for the five years of cohabitation immediately preceding the date of his death. The basis of this was that since he was still legally married, even though separated from his wife, he could not be considered a single man.

This argument was rejected by the trial judge who, according to the judgment of the CCJ “influenced by his perception that the purpose of the statute was to correct the problem faced by the survivor of a non-marital relationship where there was no will, concluded that the word “single” included a married man who was separated from his wife.” Alternately, the judge was of the view that the word ‘single’ referred only to the status of the deceased at his death.

The Court of Appeal found the first holding to be a distortion of the natural and ordinary meaning of the word “single”, and rejected the alternative on the ground that “the word “single” reflected the status of the parties throughout the five-year period of statutory cohabitation” and not merely at death. The CCJ on Friday reversed the Court of Appeal’s decision and restored the order of the trial judge.

The ultimate resolution of the matter turned on the appropriately applicable rules of statutory interpretation and should arguably repay reading for keen students of this subject. I consider the minutiae of this, however, to be too esoteric for a Sunday newspaper column so I will not elaborate further.

It should be borne in mind nevertheless that the principal aim of the court engaged in an exercise of statutory interpretation is to ascertain the meaning intended by Parliament, as the CCJ makes clear-

“The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So, the controversial provisions should be read in the context of the entire statute, and the statute should be read in the historical context of the situation which led to its enactment.”

As the varying decisions in this case demonstrate, this is an exercise in which highly learned men may reasonably differ as to the result. And while this may appear befuddling to the uninitiated who yearn for exactitude and predictability in the meaning of statutory provisions; as long as there remains the co-existence of the separation of powers whereby Parliament legislates and the courts interpret, and so long as the English language with all of its vagaries remains the primary means of legal communication, these will remain an unlikelihood.

There is one more point worthy of note. The notion of the “single man” has not been expressly enacted in the provision for the union other than marriage referred to above where a period of cohabitation also plays a significant role. It seems beyond doubt that at his death therefore, Albert Michael Selby was part of a union other than marriage with Ms Smith. Should this not also hold true for other married men whether separated or not?