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Tuesday, September 28, 2021
Home Features The saga of evidence of the common-law union!

The saga of evidence of the common-law union!

I must confess I was not taken aback by the huge interest expressed by many over my article regarding common-law unions because it only proved that indeed many do not even know the law, their legal rights and the legal consequences that ensue when it comes to the relationships they are in. Thus, this week I will further expand on this topic as there were some rather interesting questions asked by readers. High on the list of questions is what happens if it’s just a visiting relationship?

It is good to know that in jurisdictions such as Barbados the legislation recognizes the visiting partner, but that is not the case in Belize. This is critical in that jurisdiction, because some men sought to get away from being considered common-law spouse by virtue of the fact that they made sure they only visited and thus never “lived-in” with the partner, even when he spent most of the night with the female partner. This is despite having children with the female and benefiting from conjugal rights and other “matrimonial” benefits. This is not yet the case in Belize, where simply a visiting relationship, no matter how long and after how many children resulting, will not help to establish common-law status under the law.

There are key factors that make the difference, one of which is the degree of the continuous nature of the sharing of a single home or being under one roof. This does not mean that the male or female cannot work out, but the permanency of where is considered the home is critical. To assist with explaining this I will refer to a case that has been decided by the Supreme Court of Belize. I will not refer to the name of the parties, only the initials, but as reference will give the citation and those of you more industrious will do well to read that case. It is Supreme Court Action No. 17 of 2016 – ROS v GL given by J Griffith. It can be found at HERE.

What establishes the common-law union?

The court was called upon to answer the key question: (i)Were the parties ROS, the Applicant and GL, the Respondent, involved in a common-law union as defined by section 148D of Supreme Court of Judicature Act, Cap. 91, and if so what are the material dates of commencement and termination of such union?

To be able to answer this question the court had to look at all the evidence from each side, put them in context, determine what supporting evidence there was and weigh them against each other and the court had to also determine what was credible, given the realities of life. By way of background the case states as follows: “A brief neutral account of the facts commences with the Applicant and 1st Respondent having met in late December, 2006 and sometime in 2007 beginning an intimate relationship. The parties were both business persons and had children from prior relationships (the Applicant 2 daughters and the Respondent 3 daughters and 1 son), but had no children together. The parties engaged in a number of business transactions and ventures together, and lived or visited with each other to some extent in several locations in Belize, until they finally parted ways in 2015. Neither party denies that they had business dealings together, nor that they lived with each other for some period. What is denied is the length and standing of their relationship, as well as the nature of their business dealings insofar as the extent to which those dealings represented the nature of their relationship.” [emphasis mine]

I placed emphasis because what is interesting in this case is the extent to which the male went to try and deny there was a solid relationship, and if there was, it surely was not for five years or more. When the relationship was good, he enjoyed the benefits of it, but now that it was over, he did not wish for the female to benefit under the rights bestowed to a common-law wife. However, the female smartly relied not only on the evidence of her older child to recount when she met the male and the extent of his presence in their home, but she also relied on the domestic helpers hired at varying periods and who could openly speak about the extent of his presence and involvement in the home. To discredit the female he alleged he still had an ongoing relationship with the mother of his last child and made it seem that he was only having a casual visiting sexual relationship with the female and in between doing some joint business, to the extent that he claimed she became only an employee whom he allowed to live with him at the same residence in the final year. Now, during the existence of their relationship the female claims that there were four phases, each corresponding with the four places or relocations of the family home and adduced evidence to show that he and she lived “together continuously as husband and wife” for more than five years.

The court was called upon to determine if given the evidence before it, based on whom it believed if a common-law union was established. It states at paragraph 7 of the decision: “A common-law union is defined by section 148D of Cap. 91 in the following terms:- “In sections 148E to 148I of this Act, “common-law union” or “union” means the relationship that is established when a man and 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.”

The court relied on many cases dealing with what was “consortium vitae” and co-habitation by looking at how the parties lived, so it could determine if they were “cohabit[ing] together continuously as husband and wife”. Relying on what the court was broadly looking at, I cite a portion of the judgment which states: “The purpose for which cohabitation is sought to be established varies throughout authorities; however, insofar as the determination of ‘living together as man and wife’ remains at the root of the determination, the authorities offer relevant assistance and guidance to the court. Some of the relevant principles derived from those cases are as follows:-

(i) The existence of an intimate relationship, however frequent and for however long does not amount to cohabitation;

(ii) The purpose of living together must be as man and wife and not for any other reason;

(iii) Cohabitation is not the same as ‘residing with’ ;

(iv) Cohabitation consists of the wife acting as wife towards her husband and vice versa;

(v) The types of living arrangements that unmarried couples adopt vary and cultural differences may, where necessary, require a modified construction;

(vi) Cohabitation does not necessarily mean that there must be the existence of sexual relations between the parties, albeit the existence thereof is strong evidence of cohabitation. Similarly however, the absence of sexual relations does not mean that there is no cohabitation;

(vii) For consideration is whether monogamy is a prerequisite for a common-law union but from the standpoint that there can be only one common-law spouse at a time (as distinct from mere sexual partners or lovers).

Simply put, the court had to decide if they were living together, and if yes, was it as husband and wife, and not mere friends or business associates.

Only one common-law partner at a time

It is critical to note that there can only be one common-law partner at a time. This is very important to note, since in this case, the male sought to rely on his infidelity as an indication that he had ended the common-law union. In the same way that in a lawful marriage, where one could be living with their spouse and said spouse, male or female, engages in an adulterous affair, but said affair, in and of itself, does not lawfully end the marriage, likewise in a common-law union, an affair does not automatically bring to an end the common-law union, unless it is totally severed to the extent that the man and woman are no longer living together. In this case, the issue of the affairs is very real and reflects the reality of life and how the court must view it, each within the other circumstances of the relationship.

Below is the account of the issue of the affair found at paragraphs 35 and 36 of the decision. Do note that reference in the decision to the “Applicant” is of ROS, the female and reference to the “Respondent” is of GL, the male:

“35. Thereafter, the Applicant’s evidence is that she by then was aware that the Respondent was continuing a relationship with another young lady who had borne him a child in January, 2015. The Applicant acknowledged having been aware of the affair since early 2014 after she confronted the Respondent about it, who admitted the affair but described it as a fling. Thereafter, after the young woman stated she was pregnant and started to call the Respondent at home, the Respondent denied that the child was his. The Applicant says she became aware via social media that the Respondent had attended the christening of that child with his daughters, contrary to his denials of paternity of the child. The Applicant, whilst upset, nonetheless still moved with the Respondent to …. and states that she even was involved in renovations and furnishing of the house. The Applicant states that the Respondent had started to become violent towards her, arising out of quarrels about his affair and even verbally and physically abused her in front of workers at the business… The Applicant says she finally severed the relationship in October, 2015 after a series of violent physical attacks which she reported to the police, arising out of quarrels over the business and the affair.

36. The Respondent’s evidence in relation to this final period was that whilst the Applicant was away visiting her daughter in the United States in 2014, he commenced a relationship with the young woman who bore him a child in January, 2015. In spite of having commenced that relationship, the Respondent’s evidence is that the Applicant begged him to come live with him again and as he’d been injured in an accident he allowed her to come, which she did, to help him with his recovery. The Respondent stated in cross examination that the Applicant was fully aware of his relationship with the young woman and he allowed her to stay at his house in Corozal as an employee of the Free Zone business during 2014 into 2015.…”

It is interesting that when the court weighed the evidence of both the male and female, it proceeded to state the following “As with the majority of the Respondent’s evidence concerning the parties living together, the Court regarded this evidence as to the final stages of the relationship as unreliable. That he allowed the Applicant to reside with him in his home in Corozal only as an employee after her failed campaign is found to be untrue.”

Clearly the court found the female’s evidence more credible and in the final analysis determined that there had been a common-law union which lasted some eight years. It found that despite his evidence of being with other women, there could only be one common-law partner, and the others, for lack of a better word, were only “lovers” or “sexual partners”. Looking at it all the continuity of the relationship was unbroken for eight years and looking at all the factors the court found that both were very much involved in a live-in situation that caused them to treat each other as wife and husband, even when there may have been issues of infidelity.

It can be summed up that the court in looking at the evidence to make its decision, had to look at the entire picture, because the absence of one factor, example no sex due to strain of the relationship, in and of itself, cannot bring the relationship to an end… that may be the breakdown of it, but not the end. Very useful in the decision was the dicta of Justice McDonald-Bishop, who in another case had stated the following: “The court indeed, will have to make a value judgment taking into account all the special features thrown up by a particular case to see whether the lives of the parties have been so intertwined and their general relationship such that they may be properly regarded as living together as if they were in law, husband and wife. It has to be inferred from all the circumstances.”

McDonald-Bishop J went on to conclude that the determination of a relationship between parties as husband and wife was one to be objectively made, taking into account the subjective interactions of the parties with each other. So, if you are in a relationship, the extent to which your lives are intertwined is critical, but so is the simple factor of whether the man lives with you or not and whether he only visits your home or you visit his, for the benefit of sexual consortium. You decide… but remember, if he is still legally married or you are still legally married, or both are still legally married…. then the issues of common-law union DOES NOT even arise… because it’s impossible to be forming a common-law union with a married person!

Church vs divorce

Now stemming from this issue, one of the concerns I got from readers is that they are in a relationship which they now realize is NOT a common-law relationship because the man they are living with is still lawfully married to his “wife”. To some this was a shock, even as they try to explain to me that the man and his wife have been separated for ten, twenty and even thirty years, but yet he has never gotten a divorce. So the realization that after all these years they have no spousal rights, for some has been a blow. In one instance a lady explained to me that it’s not that he does not want to get a divorce, but that he cannot get one, because his church will not recognize the divorce and so he will still not be able to marry her.

Hmmm, that one got me thinking and I realize that clearly from a strictly legal point, people do not realise that it is not the church that marries them and bestow the legal rights on a spouse, but that it is the state that lawfully marries them. So he can get a divorce, but he cannot re-marry in that same church once his wife remains alive. You see, simply put, the church ceremony is just that, a ceremony! It is a ceremony in which the same papers you would have signed at the General Registry at court, are instead signed after the church ceremony at your wedding and witnessed by two witnesses. Simply put, marriage is a legal contract …not a religious contract! So if it is the state that marries you, it is the state that makes the laws that will divorce you. A divorce is not granted by the church, the other spouse, or anyone else, except the courts, who are called upon to examine the circumstances and apply the law, where applicable, to grant a divorce. The religious part is your own moral conviction to live by a defined religious code of conduct, not mandated nor policed by law.

Think about it like this… if you go through a marriage ceremony, but do not sign the legal papers provided to the church by the court registry, then you are still not legally married…. even if in the eyes of the church you are married. The marriage certificate is a state-issued proof of your being legally married, just like a birth certificate, death certificate, driver’s license, etc. that are used as legal proof.

Sorry to bluntly state it, but using the lack of recognition of your divorce by the church, is a poor excuse by your partner to have you tied up in a more “sinful” relationship, where there is a subsisting lawful marriage, but you are not the wife, only the mistress, yet for face value and supposedly, the values of the church, your partner does not get a divorce, but instead relinquishes you to the status of adulteress, to use the church’s description. Thus, also making your partner an adulterer, and compounding your situation by the fact that you will never qualify to become a common-law spouse with some legal rights and benefits. Let it be clearly known that when a divorce is obtained, it is a lawfully and legally recognized divorce, which severs the marital duties and benefits between the parties and frees up both to re-marry to whomever they so wish thereafter… even if your church frowns on divorce, it cannot legally stop it! Now to re-marry you can do so either at the civil registry or another church, since there are churches which have no “policy” about marrying divorcees. Remember, the Protestant churches broke away from the Catholic Church over the issue of whether the king could divorce his wife, the queen, or not. That debate has been won already.

To that poor woman who feels helpless that her partner will not get divorced from his wife, despite being separated from her for over ten years, because “his church”, which he no longer attends, will not recognize his divorce, I can simply say, don’t worry because if he gets the divorce, as he should, the state and court will recognize the divorce and your time starts counting to qualify at least as a common-law wife, if he opts not to legally marry you after the divorce. But if he is adamant to remain married for face value, it is best he return to live with his wife to save his soul from living an even bigger lie every day of his life… if he is indeed so concerned about complying with the values of “his church”! Now, I will not make judgment calls on anyone’s decision, but only wish that people understand the implications and consequences of their life choices so they go in or stay in a relationship with eyes wide open.

Final note!

As a final note, I wish to share the experience of one reader who took time out to call and tell her story. She has been living with a man who is separated from his wife for over thirty-one years. The wife migrated to the US shortly after their separation, and during that time had two other children, not of the husband, who never went to visit nor live with her there. However, using their marriage certificate she registered her two new children from two different relationships in the name of her lawful husband. She is entitled to do that as wife, since the law presumes that any child born to a married woman, is the child of the husband. He would need to travel to the USA and rebut that presumption and show that he is not the father of those kids. But, until then, she has acted lawfully and has made use of her spousal rights as wife; had they been divorced she would never have been able to do that lawfully. This is not funny, because it has legal implications against the man, whose estate these children, like his lawful children, now have a claim against, should he die without a will. Or he can be sued to maintain them as father, as he is lawfully responsible for them while they are minors!

To all I say, know your legal status and make decisions based on this. God bless!

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