“Ignorantia legis neminem excusat.” — “Ignorance of the law excuses no one.”
I am of the opinion that systems in society, especially the law, were designed to benefit a certain class of people, but those people are surely not the poor, the academically disadvantaged, the Indigenous or the oppressed. Unfortunately, the common law legal system we inherited from the British was never designed to meet our local needs and surely was never meant to be understood by the common man. However, one of the legal maxims on which our law is premised is that your ignorance of the law is no excuse for your not knowing the law and breaking the law. So even if you genuinely did not know it as illegal, per law, to do something, yet you did it, you cannot turn around and use as your defence your ignorance of the law. Sounds crazy, right?
It’s even crazier when you put that in context with the reality of our education system, our social system and or governance system. So in theory, our Common Law system presumes that we ALL know the law and because we all know it, we know when we are breaking it. But this is preposterous when you think about several realities, namely: the system presumes the population is literate, it presumes the population is taught about the law; it presumes the population has easy access to the laws, be it by books, lectures, news, journals, or schooling. However, we all know that is not true, since no one is ever taught about the law at school, not even as an introduction in primary school or a specialized subject in high school.
Let’s do a simple survey and ask the three basic questions: 1. Did your learning at school ever include teaching you about the Constitution? 2. Do you know where to find and/or get a copy of the laws of Belize? 3. Do you know how the court system operates, beginning from the Magistrate’s courts to the Caribbean Court of Justice? I believe we must all get a copy of our Constitution and read it!
I personally believe that those of us who know the law are obligated to help teach others, especially about their basic rights or immediate issues affecting their daily life, such as family law, land law, administration of estates law, Immigration law, constitutional law, just to name a few. Thus I am hoping from time to time to be able to share knowledge on some of the issues, especially those that affect us all. I will start with the concept of marriages and children.
Children born out of wedlock
You know that the concept of a marriage ceremony that involves signing of a paper to make it legal is a civil law concept and a thing of Western civilization and that it thus involves legalities and rights attached to spouses and children as a result of these signed papers. Thus divorce is a legal process before the courts.
Under the Common Law system, children born out of wedlock really were seen as bastards, a term now removed as those children in many ways are given the exact same rights as their siblings born in wedlock. Before that, however, the child born to a single woman was considered filius nullius – which means a “child of nobody.” The stigma associated with that made families do some of the most atrocious things to their single pregnant girl child and it was like the worst crime, so much so that children were aborted, given away or totally disowned or abandoned.
But I always reason out how those terms, social norms and expectations were placed upon us by the Western “civilization”.
Think about the Maya civilization, where marriages or unions were made between men and women without any paper signing, yet they did not consider the children of those “unions” bastards. Yet when the Europeans descended on us and eventually forced their religion on us… not only were they unwilling to recognize our unions as lawful until done by the paper-signing, but they also dared to say our children were bastards by the lack of signing of marriage-papers at the commencement of those unions.
In today’s Belize, I have met Central American immigrants living in here and the women and men live together without going through the paper-signing ceremony of marriage and by their customs they consider themselves spouses because, as one young lady told me, the man visited with her family and discussions were had and agreements were made and her parents handed her over to him lawfully to be his wife…. Of course once she had the parental blessings and he swore his commitment to keep her as his wife, that was enough for them. To them that is a marriage … and this is evidenced by the fact that it was consummated and that seals the bond between wife and husband… of course, legally in our legal system that is another story!
Consummation makes the marriage
It’s ironic that even in the Biblical accounts you cannot find any paper-signing at any wedding. What really seals the marriage commitment is the sexual intercourse to consummate the marriage, even in today’s version of a lawful marriage. So I venture to say that from the early history of mankind, the social construct of unions existed, but the formalities and trimmings and ceremonies that accompany it today were not always present. These evolved over centuries. There wasn’t always a white dress; that is a Victorian era fashion and there was not always a priest. A look at early civilizations indicates that some form of agreement always existed and that especially amongst the powerful, the union of a man and a woman, not only ensured the continuation of heirs, but the amalgamation of power, the maintenance of social status and the consolidation of wealth. For many it was about alliances: for others it was to provide protection in the family unit and create an environment to procreate and multiply the human species.
I do not know enough about all different civilizations and what anthropologists have determined for each, but under the Western civilization from which our colonizers came, clearly we inherited a socio-political system that did not only view women as chattels, but also viewed their offspring as the property of the male, although the women carried them and was the one whose body formed them into the flesh and blood they became.
Clearly, you can see from Biblical accounts that polygamy was the norm, especially amongst the landed and wealthy men, so it is a farce to make it seem that historically monogamy was the norm. However, when the Catholic Church got involved and wanted to take the reign of power, it became the authority over many issues, including marriages, and by the eighth century marriage became a church sacrament. In 1563, per some history I read, it was written into canon law. The rest is history, because we know the importance given to marriages and it had been so bad for us women that we were considered our husband’s property to do with us as he pleased. It was so bad that a woman could not accuse her husband of marital rape, because as Lord Hale had said in some legal literature, “for she had given herself irrevocably unto him and the two became one’. Thus, in theory he could not be accusing himself of raping his wife as she was intricately part of him. Believe it or not it was not until 1991 that the House of Lords, comprised of all white titled and wealthy men, finally changed the legal position on marital rape in a case named R v R. Lord Keith sums it up right in his judgment when he says:
“It may be taken that the proposition was generally regarded as an accurate statement of the common law of England. The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale’s proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are ery familiar and upon which it is unnecessary to go into detail. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale’s proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable.”
In Belize that position was not made into law until 2000 and the penalty is up to eight years imprisonment if found guilty. Of course to my knowledge no one has ever been found guilty of marital rape… but I can stand corrected.
I have given all this history and background and information to be able to set it against a key issue that needs to be known in Belize by our women who have children out of wedlock. For one, apart from not giving in to the stigma of having a child born out of wedlock, it’s important to know your rights as a “single” woman who has a child for a man who never decided to marry you and bestow on you the legal rights and obligations that comes with marriage. Our society is still very small and women are still very much stigmatized for so many things, but I believe one of the most disturbing facts I have encountered lately is that women just do not know their rights in law, and worse do not know their rights as married women, single women, mothers, and common law spouses.
Attorney Dolores Balderamos-Garcia, is one of the prominent attorneys and politicians that I know of who has always used her office to make legal changes in terms of women. I hope I will be able over the next weeks to discuss many women’s issues as it pertains to the law, because while she lobbied for and effected the changes, those of us who should help get the word out and empower the women are failing. Why have the law if you do not know your rights… the education of our law is an every dynamic process… it’s not a one-time event.
For better or worse there is a distinction between who has the automatic right of custody of a child born to an unwed women and one born to a wedded woman. The most prominent distinction is that if the child is born within the marriage, and that includes even if the parents marry after his/her birth, then upon a breakdown in that marriage that leads to separation, both the mother and father have equal right to the custody of that child.
Child of a single woman
On the other hand, the child born to the woman who is not lawfully married to the father of the child, even though they are living together as spouses or in a common-law union, upon the breakdown in that union the sole custody of that child goes to the mother alone. The father does not have the same right or equal right to the custody of the child as the “single” woman does. In lay terms you can view it as his losing some grounds for not electing to marry the mother of the child and shielding her with all the marital rights, thus she has the advantage of her children in return. Many have rationalized it in different ways, but whatever the rationalization is, do not lose sight of the fact that the mother is automatically the parent entitled to custody, except where the father seeks custody and can prove specific wrongdoings by the mother before the Family Court of Belize. The Families and Children’s Act, Chapter 173 at Section 16 is most instrumental to read and know.
16.-(1) Subject to section 33 and section 84, the mother of any child born out of wedlock shall be the guardian of that child and the court shall be capable of exercising with respect to the child born to a single woman all the powers conferred upon it by this Act with respect to a child born within wedlock.
(2) Subject to subsection (3) below, the mother of any child born out of wedlock shall have and be entitled to the custody of the said child, until it attains the age of eighteen years.
(3) The mother of any child born out of wedlock may be deprived of her guardianship or custody under this Act by order of the court where-
(a) such mother has deserted or abandoned the child in such a manner likely to endanger the health or well-being of the child;
(b) such mother is by reason of intemperate or immoral habits, (such as prostitution or drunkenness,) or for any other reason, unfit to have custody of the child;
(c) such mother does not exercise proper care and control of the child;
(d) the order depriving her of guardianship, if made, will be in the best interests of the child, and a social services practitioner employed by the court has so confirmed;
(e) the court is satisfied that there exists some other circumstances not provided under paragraphs (a) to (d) above which renders the mother unfit to exercise the rights and assume the duties of guardian; or
(f) the father applies for custody and proves to the satisfaction of the court that it is in the child’s best interests for him to have custody.
Depending what your circumstances are as a woman in a relationship, you may wish to be a single woman with a child so as not to have to deal with the fight over custody of your child. However, it must be known that despite the mother’s having custody, the father will always have access and visitation because it’s the child’s right to know and commune with both parents. The father will only be denied access in very exceptional circumstances where to have him around the child is not in the child’s best interest.