Common Law Union the Right to Access Benefits
10525 12 Jul, 2012
Attorney General and Minister of Legal Affairs [Mr. Nandlall]: Thank you very much, Sir. It is a distinct pleasure to begin the process of piloting this Bill through debate in this Hon. House.
The physical size of this Bill does not, in any way, give the accurate illustration of the impact and the far-reaching ramifications which will flow when it eventually becomes the law of this land. In short, this Bill seeks, for the first time in the history of our country, to accord to a spouse in a common law union the right to access benefits under the laws of intestacy.
The past of the common law union has been a long and arduous one. In England – and I go to England because it is from that jurisdiction that we have inherited our legal system – the church having the deep influence that it has, the influence hitherto was even more profound, influenced the ways laws were crafted. Even though the common law union existed perhaps from since the dawn of civilisation, beginning, of course, in the Garden of Eden, for those who believe that society evolved that way. Notwithstanding the longevity of the existence of the common law union, it was never recognised for centuries in the British legal system and, indeed, in legal systems elsewhere. Indeed when one examines the legislation, one gets the distinct impression that there was a clear intention not to recognise the common law union, the spouses of that union and the products of that union. And all the laws and the common law, of course, were all conceived, designed and crafted not to recognise the common law union.
There was legislation, for example the Bastardly Act, which describes children born out of wedlock as illegitimate and did not confer upon them the rights which children born in wedlock enjoyed at law. There were the rules of intestacy which provide for how the assets of a deceased person will be distributed upon death in the absence of a will and the priority of the persons who are entitled by law for those assets. And in the rules of intestacy, there is the wife – and it is clearly said that the wife, under the rules of intestacy is confined to a legal wife or a legal husband…
There were the rules of intestacy confining the beneficiaries only to lawful spouses and making no allowance and no provisions for spouses of a common law union to access the properties or the assets of a deceased person upon death. Then of course there was the order of priority. And the rules of intestacy says that when the deceased dies, the first to apply is the spouse, meaning the legally married spouse, and that spouse is entitled to one-third and the second to apply are the children and they are entitled to two-thirds. In the absence of a spouse or children, the next in line are the parents of the deceased person and if there are no parents, the next in line are the siblings of the deceased person. There was a whole elaborate scheme designed to deal with how properties will evolve in intestate succession but no allowance being made for the common law spouse. That was the legal and legislative landscape of England which we inherited and we continued, even after Independence, along those lines. It was left, therefore, to the innovation of judges - and they must be credited for this – to use conventional legal principles and concepts and equitable principles and concepts to pacify the harshness which the law meted out to spouses in a common law union and to children in a common law union. And this judicial activism is what led to concepts like “trust”, “estoppel” and so on being employed to find ways and means of granting some form of legal redress to an unfortunate situation because both in England, and even more pronounced in our country, was a large number of common law unions and children of those unions.
Indeed our system is peculiar because of its historical evolution where we have people coming with different culture and religious background and those religions permitted the common law union and recognised the common law union. For example, there is the Nica Ceremony for Islam and the Maro wedding for the Hindus and unless those marriages, though recognised as valid ceremonies of marriage, were registered under the Marriage Act, they did not assume the legal status of a marriage and, therefore, the spouses to those unions remained common law spouses.
Therefore, the judges began the process and began a silent revolution by which they started, in this judicial activism to which I refer, to confer recognition upon common law spouses and children of those unions. But Parliament could not have continued to take a position of non-recognition. As a result of societal pressure and as a result of the judicial activism, Parliament’s position started to wane. We saw bit by bit and pieces by pieces, a dismantling of the position of non-recognition of common law spouses and children of those unions. The Children Born out of Wedlock Removal of Discrimination Act 1983 was the first Act promulgated by this Parliament that began the legislative revolution of recognising common law union, in this instance, specifically the product of those unions and it sought to put on equal footing for the first time in the history of our country the children born out of wedlock and the children born in wedlock. Necessarily, it had to repeal the Bastardly Act and then seven years passed and in 1990 we had another ground breaking piece of legislation, that is the Married Person’s Property (Amendment) Act No. 20 of 1990 and this Act for the first time recognised, by statute, the common law union and laid down a definition of what a common law union is. Indeed, in so doing it expanded the definition of a wife and expanded the definition of a husband to include a single man or a single woman living in a common law union for a period of five years and more. And it accorded to those spouses or persons of that union all the proprietary rights that a legally married spouse was entitled to under the law, including the important concept of matrimonial property.
There was a situation where the Married Person’s Property (Amendment) Act of 1990 corrected the historical wrong that was committed against common law spouses by conferring upon them the right to access matrimonial property in the same way that the legally married spouse was entitled to all the years. What it did not do, however, was to extend that right to the position where the spouse dies and it did not extend to cover up the eventuality of where one spouse dies, what the position of the other spouse is. And the legislation being silent in 1990 on that fundamental issue, what governed the situation in that vacuum was the rules of intestacy. And when one goes back to the rules of intestacy, the anachronistic definition of a wife remained and the wife under the rules of intestacy was confined only to a legally married woman and husband was confined to a legally married man.
Therefore, this Bill seeks to correct an omission which ought to have been corrected perhaps some 20 years ago.
This Bill will benefit people right across this country. It has been lauded by the Women’s Group as a great victory for women, and that is indeed true. To confine it only to a victory for women is taking a very myopic view of the impact and ramifications which are going to flow from this Bill. Men are equally going to benefit and so are the children of those unions.
Therefore, we now can say that in relation to common-law unions, we have perhaps a complete legislative network and framework which covers every eventuality. Clause 2 of the Bill defines the common-law union again and confers upon the spouses of that union the right to benefit under the laws of intestacy. As I said earlier, the current position is that those spouses under that union do not benefit. Clause 2 of this Bill ensures that they benefit.
Clause 2(2) recognizes only one such union. The reason being is that we could not and cannot take the position of recognising more than two unions. If we do so, we would be taking common-law unions to the other extreme, to the extent that we would be lending our imprimatur to adulterous unions. I do not think as a society we would want to go that route. In my consultations with groups representing women, they raised the fundamental issue and an issue of practical importance, what happens, and what will happen and whether this Bill affects the situation where there is a legally married couple, but for all intent and purpose they are living separate and apart and the marriage has suffered an irretrievable fracture. So that, the woman lives in Queens, New York, or in Bronx, New York and the man lives in Guyana or vice versa and then cohabits in the face of a subsisting marriage, but one that exists de ouray only and not de facto and begins to cohabit with this woman or man in Guyana. What is the position? To recognise that spouse who is the new cohabite will again put us in the position where we are condoning adultery. One may argue or condoning bigamy, obliterating or professed allegiance to polygamy. I do not think that we want to go that route either. [Dr. Norton: That is my culture.]
When that was explained to the Women’s Group, the Read Thread, Mrs. Cathy Hughes was there, the Central Islamic Organisation of Guyana (CIOG) and various other organisations. WPO was there. The Church was there as well. I think they understood and they accepted my explanation and they accepted my position which…
Mr. Speaker: Dr. Norton, it is not too late for an amendment to the Bill you know.
Mr. Nandlall: I advocate it. So, that is the reason why clause 2(2) is expresses in its present formulation. Clause 3 seeks to amend the Family Dependence Provision Act to reduce “seven years” to “five years” wherever the words appear. For completeness and for Members of the Assembly who are not lawyers, the Family Dependence Provision Act is another landmark legislation which was passed by our Parliament in 1990. That is an Act that provides for persons to make an application to the Court for adequate provisions out of the estate of a deceased person if that person feels that the deceased person by virtue of his will or under the rules of intestacy did not make adequate provisions for that person.
There are different categories of persons who can make applications to the Court to benefit under that legislation. The categories include the legal wife, the children, and any person who was dependent upon the deceased person immediately prior to his/her death and the common-law wife as well. It is in that legislation that common-law union was defined as a union of seven years standing between a single woman and a single man.
I looked and I searched but I could not have found any explanation as to why when the man or woman is alive the common-law union is defined to be of five years duration, but when he/she dies that common-law union fetches this heavy burden of a two year extension. It becomes so that you have to satisfy a seven year period. That incongruous situation, I could not have found any rational reconciliation. I thought it best to use this occasion to bring consistency to our definition of what a common-law union is. That is why we are reducing it in the Family Dependent Provisions Act from seven years duration to a five years period, hence the purpose for clause 3 of the Bill.
In a nutshell, those are the benefits that our country and our people will derive from this Bill. I have no doubt that every Legal Practitioner in this House, every social worker in this House and every politician in this House, as we go out to execute and discharge our various and varying functions we would have been confronted with a situation where a common-law women or a common-law man has been left out in the cold as a result of the present construction and present formulation of the rules of intestacy. So, when you now go out and you are met with such a situation, you can proudly say that you have voted in favour of a Bill to correct that injustice.
I thank you Mr. Speaker. [Applause]
Mr. Nandlall (replying): Thank you very much Sir. Let me take this opportunity to thank Minister Manickchand and Hon. Mr. Bond for their kind contribution. I move that the Bill be read for a second time.
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