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Wednesday, August 12, 2020
Home Features RIGHT TO THE POINT: What really is a common-law union?

RIGHT TO THE POINT: What really is a common-law union?

Belize is under a common law system and one that many do not understand or know. But I dare say many do use the word “common law” very openly and easily, but I wonder how many appreciate what it is. There is the well-known “common-law” wife or husband, which is what I seek to address in today’s writing.

Just as a background, it must be known that Belize operates under a common law legal system, which it inherited from its “motherland” – England. If I had to find a simple way to explain common law, I would say it is a system of law originating in England, which unlike the civil law system, is based on the unwritten laws derived from English customs and court decisions which then in and of itself form a body of law. By saying it is unwritten, I simply mean it is not codified into statute (legislation), yet the decisions that developed over the centuries are found in the cases decided over the years. Without going into a class of the English legal system, I would say that under the common law system the lack of formality of codifying the law into statutes helped to allow the law to evolve and develop, unlike statutes that makes a strict provision that must be followed.
It is rather interesting that from this same concept the idea of a “common-law” union should develop, because just like the informality of the common law system, so is the informality of the common law union.

Common law marriages
There is a mistaken belief that once a man and a woman are in a sexual or intimate relationship that they can refer to each other as their common law partner… this is NOT automatically so. The criteria for a person to qualify as being in a common-law union are as follows:

1. The persons to the union must be one male and one female;

2. The persons must be of legal age of consent, which is 16 years old for consent to sexual intercourse (but 18 years of age for legal age to vote);

3. The persons must both be unmarried and not in another relationship with someone outside the union.

Now it is the latter one that seems to create lots of confusion. For some strange reason it seems that both men and women are mistakenly believing that once they are separated from their lawfully married spouse and living with another, they qualify as common law spouse. No, that is not so. The only thing they qualify for is to be petitioned for a divorce under the grounds for adultery. And yes, adultery is still recognized in our laws as a basis for divorce.

So, if you are living with a man or a woman who is not legally divorced from his or her spouse, please note your time counting as common-law partner does not start, because that person who is still lawfully married is legally incapable of being your common-law partner and rather is only a “lover”, “mistress”, “partner” or any term you want to use… but he or she is definitely not your common-law spouse.

Just this week I had to deal with a matter where the mistress made a police complaint against the lawful wife and the police kept referring to the mistress as the common-law wife of the man. I thought to myself, if the police are mistaken as to the legal status, then I could imagine how much the average man or woman must be too. The mistress also mistakenly believed she was the common-law and having a child for the man made her even more resolved in her belief, but I know it is pure ignorance of the law, which as I wrote before is no excuse.

Now, I have addressed what is necessary to even be considered a common law union, but under the law it goes a step further, in that for legal rights to accrue to either party to the common law union, that “living together” had to have been for five years or more. So, if you are just living together for three years, you are living in a common law union, but not one yet legally recognized to bestow on either party legal rights. Unlike a lawful marriage, which upon the signing of those marriage certificates gives you immediate rights under our laws, in a common law union those rights only accrue after living together for five years or more.
Per the legal definition of common law spouse, we turn to Section 148D of Cap 91 of the Supreme Court of Judicature Act.

Chapter 91, Laws of Belize which states:
“common law union or union means the relationship that is established when a man and a woman who are not legally married to each other and to any other person cohabit together continuously as husband and wife for a period of at least five years.”
Thus, although “common-law union” is used loosely, be advised that even in its looseness, it has a legal well-defined parameter. So if you are in a relationship living with a married person, you are NOT in a common law union and no spousal rights are accruing to you.

Detriment to unmarried partner
Now discussing or openly talking about these seemingly private matters can be uncomfortable because it goes to the core of one’s privacy… that is who are you living with or co-habiting with, but it is a conversation that must be had since from it stems so many rights and repercussions.

So, let me put this scenario to you that I have seen happen several times already. There was this man who remained lawfully married to his wife, but they had been separated for at least fifteen years when he died; however, he never took time out to get his divorce, so when he moved in with his new partner, she could not be considered his common-law wife and could not in any way make any claims to him as her husband. Thus, upon his death his lawful wife demanded his body, which police, after being called and seeking legal advice, had to hand over to the lawful wife. The lawful wife not only banned the “mistress”/ “partner” from the funeral, but she also prevented the children of that union from attending. Trust me it was a scene, but lawfully the estranged wife of fifteen years had all legal rights to take over her husband’s body and decide his funeral arrangements: and his having left no will stating his wishes, left it all up to his lawful wife to decide. Now on the issue of the children and their rights I will discuss at some later writing.

In said situation, all the businesses and properties and wealth the live-in partner had helped to work for and accumulate (which were never placed in her name) the wife had immediate claim to, and the “mistress” not even under the common-law union could have claimed her share. She would have had to sue under other laws to establish her share, but on the face of it, the properties and wealth accumulated during the subsistence of the marriage went into the estate of the deceased husband and in the order of distribution there is no provision for the mistress or live-in partner to benefit. Sad but true!

Then there was the case of a good friend of mine who had left his wife after she helped him through school and he had qualified as a handsomely paid professional. He decided he wanted a younger female and at the time of his sudden death by a traffic accident that young woman was pregnant. When she showed up at his funeral, the lawful spouse had police escort her out and she was not allowed access to anything of his. As a matter of fact, the wife took police to recover all his personal belongings because under the law of inheritance she had the right to go gather his personal effects.

But her case goes a step further, because unlike a child born in wedlock, this child who is born after the father’s death, does not automatically get legally recognized as his child and cannot carry his surname. However, if this had happened to a married woman, then by virtue of her marriage to the man, upon his death the child is still legally and automatically recognized as his lawful child.

Now, in both cases those relationships may have really come to an end in terms of the emotional and intimate connection those spouses once shared, but it had not yet come to an end in relation to the legal rights and obligations each spouse had to each other. Thus, the same way you lawfully get married, in the same way you must lawfully end that marriage when it all falls apart.
The liberals like to say the law does not have the right to peep into your bedroom, but it does, because by its very nature, it is the laws of our society that now regulate the rights that accrue to each other by virtue of your relationship to either your parents, spouse, siblings, etc. In our everyday life, whether you think about it or not, your life is regulated by the laws that set the norms of our society. Thus it is important that we openly discuss these issues and for men and women and children to know their rights. As was seen in both cases above, there are certain detriments to the unmarried spouse who is not able to qualify as a common-law spouse, because either one or both is still lawfully married.

Divorce … divorce … divorce …
Now it would seem that the way to solve this issue is by getting a divorce, but that is easier said than done, since the divorce laws have certain qualifications that must be met before one can be divorced. While this is a topic in and of itself, it helps to mention that one cannot get a divorce until being married for three years or more, unless you can prove and show hardship in remaining married before celebrating the third anniversary. So, it is easier to get married than divorced in Belize. But also, many partners, although they leave their spouse, do not opt for a divorce immediately because of religion… yes, the church would not recognize the divorce so for appearance the marriage continues. They may also not seek a divorce for not wanting to divide the marriage assets, or sometimes simply because they do not want to be free to be able to marry the new live-in partner, who may pressure for marriage once the person is divorced.

But the irony of the situation is that while after five years a couple can be recognized as a common-law union with rights and benefits, they do not need to go through a process of divorce and the mere ending of the cohabitation in and of itself acts like a divorce. But yet the rights as if they had been married, especially to property and other matrimonial assets, accrue and can be fought for by either spouse. It’s like getting most of the benefits of marriage, but without the marriage certificate and yes, there are some disadvantages, but there are even unusual advantages. One of the advantages is that being that there is no lawful marriage, only the common-law union, then the children of that union upon separation are under the full and sole custody of the mother, who for that purpose of child custody, is still considered a single woman and thus the children’s custody is hers unless the father can prove her unfitness.

It is hoped that readers will better appreciate what is really a common-law union and stop using it so loosely. But even more important is that those in these complicated relationships understand what are their legal rights and status and what are their benefits and detriments and to determine how best to manage their personal affairs so as not to feel slighted. I am sure that in the examples given above, both women felt cheated, slighted, and hurt, but they did not seek the protection of the law and agreed to be in a relationship that did not benefit them legally and worked to their detriment. However, it is my hope that if more people understand the law and how it will benefit them, they will make better choices on how best to regulate their personal life, their inter-personal relationships and their standing in their unions/co-habitation.

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