Commonwealth Caribbean Family Law

husband, wife and cohabitant

Karen Tesheira

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317624844
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This important new text is the product of several years of research of the family law of fifteen Commonwealth Caribbean jurisdictions. It is the first and only legal text that comprehensively covers all the main substantive areas of spousal family law, including marriage, divorce, financial support, property rights and domestic violence.

The rights of the statutory spouse in the jurisdictions of Barbados, Belize, Guyana, Jamaica, and Trinidad and Tobago are examined, thus addressing, on a jurisdictional basis, an important area of spousal family that is seldom covered in English family law texts. The book also covers the number and variations of divorce regimes applicable to the region – the matrimonial offence divorce model of Guyana and Montserrat, the English five fact model of Trinidad and Tobago, Dominica, Grenada, Anguilla, and St Vincent and the Grenadines, the hybrid model of Antigua and Barbuda, Belize and St Kitts and Nevis, and the no fault model of Jamaica and Barbados.

This book will prove an indispensable resource for law students and legal academics, as well as for family law practitioners across the English-speaking Caribbean. Other professionals, including sociologists and social workers, will also find the book useful and informative.

Chapter 1
Introductory Matters

1. Scope of Work

A The Commonwealth Caribbean jurisdictions

This text will examine the matrimonial causes law as it applies to the husband and wife, and cohabitant, where applicable, in respect of the following Commonwealth Caribbean (CC) jurisdictions:

Anguilla	Jamaica
Antigua and Barbuda	Montserrat
Barbados	St Christopher and Nevis (St Kitts and Nevis)
Belize	St Lucia
British Virgin Islands (BVI)	St Vincent and the Grenadines (SVG)
Dominica	The Bahamas
Grenada	Trinidad and Tobago
Guyana

Accordingly the term CC jurisdictions where used in the text shall refer to the above-listed jurisdictions unless otherwise stated.

B The matrimonial causes

The matrimonial causes of the respective CC jurisdictions which will be examined are the laws governing a valid marriage; nullity of marriage; judicial separation; dissolution of marriage; spousal support applications during and after marriage, whether in respect of spousal maintenance or property adjustment orders; family provision orders and spousal domestic violence.

2. Family Law of the CC Jurisdictions

A The legislative models

The family law of the CC jurisdictions, with the notable exceptions of Barbados, Jamaica, Antigua and Barbuda and St Kitts and Nevis, is modelled in the main on current or former English matrimonial legislation. In the case of Barbados, and more recently Jamaica, most of the family law legislation, in particular with respect to divorce, spousal maintenance and property orders are based on Australia’s Family Law Act, 1975. With respect to Antigua and Barbuda and St Kitts and Nevis, the law governing matrimonial causes is a combination of the English law of trust in respect of spousal property applications, and more recently, country-specific divorce legislation governing dissolution of marriage and spousal maintenance applications.

While jurisdictions have increasingly moved away from adopting, wholesale, English matrimonial law models, the matrimonial laws of all the CC jurisdictions originated, and were at some point identical to the matrimonial regime, both statutory and common law of England with the qualified exception of St Lucia. In the case of St Lucia, the matrimonial law is in part based on the French civil law system. Nonetheless, the laws of the CC jurisdictions, including the matrimonial laws are modelled, and in some cases, identical to current or repealed matrimonial laws of England.

B Statutory innovation: impact of socio-cultural norms

Family law, arguably more so than any other area of the law, is impacted or informed by prevailing social and cultural norms. Those norms and values which underpin, shape and define familial relationships in the CC jurisdictions included in this text are becoming increasingly imported into the legislation which governs those relationships.

Examples of the impact of socio-cultural norms on the region’s matrimonial legislation include the statutory recognition of the common law spouse in the jurisdictions of Barbados, Belize, Guyana, Jamaica and Trinidad and Tobago, (the statutory spouse jurisdictions); the statutory provisions with respect to Hindu and Muslim marriages in the case of Guyana, Jamaica and Trinidad and Tobago, and the Orissa marriage in the case of Trinidad and Tobago as well as the Muslim divorce with respect to Trinidad and Tobago.

3. Reception of the Matrimonial Laws of England

A Introductory

As former British colonies, the CC jurisdictions have all received exclusively, with the exception of St Lucia and Guyana and Trinidad and Tobago, English statutory law, common law and the law of equity. In so far as the statute law in general is concerned, Patchett, in his seminal work, “Reception of Law in the West Indies” identified the four methods by which English statute law has been incorporated into the laws of the various CC jurisdictions, that is by express extension by the UK Parliament of particular statutes; by adoption through incorporation by reference in the colonial legislation, either by express incorporation of named statutes or by general incorporation clauses; by adoption to the situation of the relevant CC jurisdiction and reception of the provisions of the English statutes; and by reception under the condition of the colony of the common law rules relating to statutes of general application in force in England before a specified date, usually that of conquest or settlement.¹

With respect to the pattern and extent of reception of English statute law, common law and equity, Aubrey Fraser in his article, “Legal Developments and Law Reform in the West Indies”² divided the colonies into two main categories – colonies acquired by settlement which were the majority of CC jurisdictions and those colonies acquired by conquest or cession. In the case of colonies of settlement, Fraser noted that the colonists carried so much of the English law as is applicable to their own situation and the condition of the colony, and in those colonies there was no difficulty in administering English law. In colonies acquired by conquest and cession, the colonists retained the existing legal system in so far as it was not repugnant to natural justice or until the Crown, which had an unfettered power of enacting legislation, made alternative provision. With the exception of St Lucia and Guyana, which were colonies acquired by cession, the laws imported into and practised in the various CC jurisdictions, whether acquired by cession conquest or settlement, were in practice exclusively the laws of England.³

B Current position in the CC jurisdictions

The current position in so far as the reception of English matrimonial law in the respective CC jurisdictions is as follows:

1. OECS jurisdictions – Anguilla, Antigua and Barbuda, BVI, Dominica, Grenada, Montserrat, St Lucia, St. Kitts and Nevis and SVG⁴

Section 11, and in the case of Anguilla s.9, of the respective supreme court act of the Eastern Caribbean territories provides in effect that:

The jurisdiction vested in the High Court in civil proceedings and in Probate, Divorce and Matrimonial causes shall be exercised in accordance with the provisions of this Act and other law in operation in (OECS territory named) and rules of court and where no special provision is therein contained such jurisdiction shall be exercised as nearly as may be in conformity with the law and practice in the High Court of Justice of England.

While it was previously accepted that section 11 or its equivalent provision in Anguilla operated to import both the substantive and procedural matrimonial and divorce laws of England in the absence of an equivalent indigenous provision in the respective jurisdiction, the decision in Panacom Int. v Sunset Investments,⁵ and the more recent court of appeal decision of Veda Doyle v Agnes Deane⁶ have challenged this interpretation of the s.11 provision.

In Panacom, Chief Justice Sir Vincent Floissac expressed the view, which has gained judicial currency within recent times that section 11 was never intended to import into SVG, English substantive law. The Chief Justice opined that section 11 relates only to the manner and exercise of the jurisdiction of the High Court and was therefore intrinsically procedural; that the words ‘provision’ ‘law’ and ‘law and practice’ appearing in section 11 are evidently intended to be a reference to procedural law as distinct from substantive law.

In Veda Doyle, the court of appeal was called upon to address the extent of reception, if any, of English substantive and procedural law into Grenada with respect to the law applicable to interest accruing on a judgment debt, and in particular, whether the 1838 Judgments Act of England was imported into Grenada. The court adopted and followed the decision in Panacom. However Vera Doyle is to be distinguished from Panacom, it is submitted in that there is no express blanket provision in s.11 for the reception of English civil law in the absence of an indigenous statutory provision as is the case with respect to the matrimonial and divorce laws of England.

Both decisions are of great significance because although in Panacom, the Chief Justice was commenting specifically on the reception of substantive probate law of England into the jurisdiction of SVG and in the case of Vera Doyle, the reception of English civil law legislation into Grenada, the respective Eastern Caribbean territories have the identical provision, subject to the cut-off date for reception in the case of Dominica and SVG.

However it is to be noted that in the case of Dominica and Grenada with respect to divorce and matrimonial causes at the high court level, both the English substantive and procedural matrimonial and divorce laws are applied, adding, it is submitted to a continued lack of certainty as to the meaning and effect of the s.11 or its equivalent provision contained in the respective supreme court legislation of the OECS territories.

• b. ‘For the Time Being in Force’ and Cut-Off Dates
  With the exception of Dominica and SVG, the respective section 11 provision contains the ambulatory phrase ‘for the time being in force.’ This phrase allows for the continued reception, inter alia, of English matrimonial law and practice in the respective CC jurisdiction to the extent that such laws are in conformity with the laws of the relevant CC jurisdiction.
  1. Dominica
     In the case of Dominica, June 1, 1984 is the cut-off date for reception of English matrimonial law pursuant to the Divorce and Matrimonial Causes (Declaration of Date) Act 1984 which Act is incorporated into the Eastern Caribbean Supreme Court (Dominica) Act Chap. 4:01. Unlike most of the other CC jurisdictions, Dominica has no indigenous high court matrimonial causes legislation and accordingly the MCA 1973, England and amendments made up to May 31, 1984 are deemed to apply to Dominica as if the MCA 1973, England was part of the substantive laws of Dominica.
  2. SVG
     The cut-off date for reception of English matrimonial law and practice in the case of SVG is December 27 1989.⁷ Although the section 11 reception provision allows for reception of English matrimonial law, the matrimonial laws of SVG are comprehensive so that there is minimal, if any direct, importation into SVG of English matrimonial laws. However, as is the case with many CC jurisdictions, the substantive matrimonial laws of SVG is based on the matrimonial laws of England, in particular the Matrimonial Causes Act CAP. 239 (MCA) which contains many of the provisions of the MCA 1973, England.
  3. Grenada
     There is no cut-off date for reception of English matrimonial law, and as is the case with respect to Dominica, there are few indigenous matrimonial statutes and in particular there is no high court matrimonial causes legislation. Accordingly the MCA 1973, England and all subsequent amendments thereto, are deemed to be received and form part of the matrimonial laws of Grenada subject to its conformity with Grenada’s matrimonial laws, substantive and procedural.
  4. Anguilla, Antigua and Barbuda, BVI, Montserrat, St Kitts and Nevis The above jurisdictions have enacted fairly comprehensive matrimonial laws and accordingly there is little or minimal direct importation of English matrimonial laws in these jurisdictions.
     In the case of Montserrat, the matrimonial laws are based essentially on the former English matrimonial offence divorce model, while the matrimonial legislation of Anguilla and BVI is in the main based on the current matrimonial laws of England in particular the MCA, 1973, England.
     With respect to Antigua and Barbuda and St Kitts and Nevis, while the current matrimonial laws governing divorce and spousal maintenance contain provisions which are significantly different from those applicable to England, the rules governing the division of spousal property are still governed by English rules of equity.
  5. St Lucia
     St Lucia was acquired as an English colony in 1814 by cession from France by the Treaty of Paris 1814. At that date, the French Napoleonic Code was the law in force in the colony. However as Audrey Fraser noted in an article entitled “Legal Developments and Law Reform in the West Indies,” because the law in St Lucia had to be administered by men trained in Britain and in the years following cession to be practised also by English trained lawyers, English law was persistently introduced”⁸ culminating in the passage of Article 917 of the Revised Laws of St Lucia (1957). Article 917 effectively introduced the law of England into St Lucia in respect of contracts and torts. However in so far as matrimonial law is concerned, while the matrimonial law is in the main modelled on former or curren...

Table of contents

• Cover
• Title
• Copyright
• CONTENTS
• Foreword
• Preface
• Table of Abbreviations
• Table of Cases
• Table of Legislation
• 1 INTRODUCTORY MATTERS
• 2 MARRIAGE
• 3 THE NON-MARITAL UNION: THE STATUTORY SPOUSE (Barbados, Belize, Guyana, Jamaica, Trinidad and Tobago)
• 4 LEGAL CONSEQUENCES OF MARRIAGE AND UNION OTHER THAN MARRIAGE
• 5 NULLITY OF MARRIAGE
• 6 JUDICIAL SEPARATION ORDER (all CC jurisdictions except Antigua and Barbuda, Barbados, Jamaica, St Kitts and Nevis)
• 7 DISSOLUTION OF MARRIAGE
• 8 THE SPOUSAL MAINTENANCE AND PROPERTY ORDER TESTS, THE CLEAN BREAK ORDER AND ANTI-AVOIDANCE PROVISIONS
• 9 SPOUSAL MAINTENANCE (HIGH COURT AND SUMMARY COURT APPLICATIONS)
• 10 STATUTE-BASED PROPERTY ADJUSTMENT REGIMES (all jurisdictions except Antigua and Barbuda, Montserrat, St Kitts and Nevis)
• 11 THE COMMON INTENTION CONSTRUCTIVE TRUST
• 12 MARITAL AGREEMENTS (maintenance and cohabitation agreements; ante-nuptial and post-nuptial agreements)
• 13 SPOUSAL FAMILY PROVISION (Barbados, Guyana, Jamaica, The Bahamas, Trinidad and Tobago)
• 14 DOMESTIC VIOLENCE
• Index