Features — 18 October 2017 — by Audrey Matura-Shepherd
RIGHT TO THE POINT: Revisiting Common  Law unions

I have had several men and women approach me to discuss the issue of Common Law unions and I have had some really sad stories on this topic because consistently it seems that persons living together do not seem to understand what is the true legal status of their relationship in many instances. Thus I have decided to visit this topic, with the hope that other people will read, learn and share with others, to avoid some of the most personal painful situations in life.

The 20-year-old relationship

It seems that some of the most awful stories stem from women who opt to live with their new partner despite these men still being legally married to their wife. I will not get into the issues of the personal choices as life is real and relationships end and others begin and some overlap. But I do want to address the need for people living in these types of situations to take serious the implications it has on their legal status and rights. I will tell this true story, without breaching any confidence so that others can learn. I met a lady who had lived, per her account, in a very good relationship with a man who took such good care of her, so much so that she gave up her career and all financial independence and settle down with him. He had already been separated from his wife and going through his own legal battles with her, when they met, so the new lady had no way of knowing what were the issues between them from the side of the wife. But by all accounts the wife also took up with a new partner and each lived their own life, but never got a divorce.

Forward twenty years later, when the man suddenly dies, with no will, no legal transfer of anything to his new partner and with her not having a clue as to how to run her life without him. Their twenty-year-old relationship produced three children, two are still minors and during these twenty years, together they built a reasonable amount of assets. He with the new partners’ help over twenty years built two businesses, bought three parcels of land, and amassed a reasonable bank account and other home assets. However, these were items acquired, not during his time living with his lawful wife, but during the time living with this new partner. As a matter of fact he never lived with his lawful wife for too long, though that union produced two children. However, the key issue here is that all these assets acquired over those twenty years are lawfully in the name of the now deceased man, who did not even leave a Last Will and Testament, ensuring she the new partner gets a reasonable portion for her contribution to the acquisition of these.

However, she laboured under the belief that she was in a common law union, by the mere fact that he no longer lived with his wife. Thus upon his death she asserted herself as such, not knowing the lawful wife was just being kind to allow her the last say over the man’s corpse. He was dead and of what use it is to the wife to encumber herself with funeral expenses? Why bother with that detriment, when the law gives her the financial benefit in the marriage, to assets she never laboured for?

I think the wife knows all too well that the last thing she needs to fight over is his body, because the law is in her favour and she is lawfully entitled to the value of one-third of his estate. As a matter of fact she can apply to be the administrator of the estate of the deceased because she is legally still wife! She is, strictly speaking, by law entitled to one-third of the assets she never one day worked to build. As a matter of fact, during a substantial part of the estranged marriage, she received maintenance and support generated from one of the business. To put it mildly the new partner, was the work-mule and now after twenty years has nothing personally to get, but her children will benefit as the remaining two-thirds of the estate is then divided up equally amongst the lawful children of the man, in this case he was survived by a total of five children.

I write about this example, not for anyone to pass judgement over anyone’s choice of a relationship, but for each person in an almost similar situation to take stock. Each person living with a person still legally married must take heed and take the necessary steps to secure themselves in the best and most advantageous position. If you are only still dating a person lawfully married, inquire if she or he has any intention of getting a divorce. That is the right thing to do!

Getting a divorce

So the obvious question I know you are asking is “why didn’t the man get divorced?” so I asked that for you all. The answer is that the man made her believe that the wife did not want to give him the divorce and that it would cost him even more to get a lawyer, cost him even more to fight his wife and cost him even more to bring the old totally dead marriage to an end, which was a waste of time and resources, because the wife DID NOT want to grant him a divorce.

I clearly saw this poor lady did not understand the process of divorce, the grounds of divorce and that it is not a spouse that grants a divorce to the other, but that it is the court that grants the divorce based on whatever allegations, claims or evidence has been proven before it!

After twenty years, trust me, when I say there is no need to fight for a divorce, likewise, there is no need to worry if one will be granted by the court and surely there is no need to stress… because after twenty years that marriage was more than over… only Jesus could have resurrected it, like Lazarus if at least one of the parties had the faith! So it is either out of sheer ignorance that the husband, the wife or the new partners feared the idea of applying for a divorce.

Thus, it is important to explain to all those living in this situation how easy it is to get a divorce after three years of the spouses living separate and apart. Belize is a jurisdiction where you can have a fault-based or non-fault based divorce, meaning that you can use grounds such as adultery or cruelty to ascribe blame to the partner who brought the marriage to an end without waiting three years to make the application! But the three years is a critical marker, because you can use other grounds after three years of being separated or not co-habiting as wife and husband, even if you still living under the same roof. The grounds for a divorce are found at Section 129 (1) of the Supreme Court of Judicature Act, Chapter 91, which states:

129.-(1) A petition for divorce may be presented to the Court either by the husband or the wife on the ground that the respondent-

(a) has, since the celebration of the marriage, committed adultery; or
(b) has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition; or
(c) has,since the celebration of the marriage, treated the petitioner with cruelty; or
(d) is incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition,  and by the wife on the ground that her husband has, since the celebration of the marriage, been guilty of rape, sodomy or bestiality.

Thus, you can get a divorce immediately upon the commission of adultery or cruelty, rape, sodomy and bestiality immediately upon you deciding to bring the marriage to an end or upon those incidents happening causing the marriage to come to an end. This is because the adultery and cruelty are considered serious offences against the other spouse and are treated as seriously as though they are criminal offences, although the cases of rape, sodomy or bestiality are actually criminal offences. However, the severity of these crimes require equally prompt redress. Nonetheless, you need to wait for the three years to go by to get a divorce on the ground of desertion and you have to wait a period of five years to get a divorce on the ground of unsoundness of mind.

However, in these instances where the partners are separate and apart for twenty years and both moved on in new relationships, there is absolutely no excuse why either cannot seek a divorce on the grounds stated at Section 129(2) which states:

“(2) Notwithstanding the provisions of subsection (1), a petition for divorce may be presented to the Court by either party to a marriage on the grounds that the marriage between them has broken down irretrievably, and that they have been living separately for at least three years immediately preceding the presentation of the petition.”

If either party did not act promptly on any of the fault-based grounds such as cruelty and adultery, years after, it cannot be that upon one spouse seeking a divorce on the grounds that the marriage “has broken down irretrievably” the opposing party will now seek to object on said grounds that was available to them from the start. Under section 133 delay to commence proceedings on the fault base grounds can result in the court not granting the divorce on those grounds.

(To be continued in the next issue of the Amandala)

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