Commonwealth Caribbean Family Law: Husband, Wife and Cohabitant

435 Pages·2016·2.62 MB·English

by  Karen Nunez-Tesheira

COMMONWEALTH
CARIBBEAN
FAMILY LAW
This important new text is the product of several years of research of the family law of fifteen
Commonwealth Caribbean jurisdictions. It is the first and only legal text that comprehensively
covers all the main substantive areas of spousal family law, including marriage, divorce, finan-
cial support, property rights and domestic violence.
The rights of the statutory spouse in the jurisdictions of Barbados, Belize, Guyana,
Jamaica, and Trinidad and Tobago are examined, thus addressing, on a jurisdictional basis, an
important area of spousal family that is seldom covered in English family law texts. The book
also covers the number and variations of divorce regimes applicable to the region –the matri-
monial offence divorce model of Guyana and Montserrat, the English five fact model of
Trinidad and Tobago, Dominica, Grenada, Anguilla and St Vincent and the Grenadines, the
hybrid model of Antigua and Barbuda, Belize and St Kitts and Nevis, and the no fault model
of Jamaica and Barbados.
This book will prove an indispensable resource for law students and legal academics, as
well as for family law practitioners across the English-speaking Caribbean. Other profession-
als, including sociologists and social workers, will also find the book useful and informative.
Karen Nunez-Tesheira is a family law expert who has researched extensively into family
law across the Commonwealth Caribbean. From 2010 to 2014, she was a Senior Lecturer at
the Faculty of Law, Cave Hill Campus, University of the West Indies, having previously taught
at the Hugh Wooding Law School in Trinidad. Between 2007 and 2010, she served as a
Member of Parliament and Minister of Finance in the Government of Trinidad and Tobago.
COMMONWEALTH CARIBBEAN LAW SERIES
The Commonwealth Caribbean Law Series is the only series of law books that covers the juris-
diction of the English speaking Caribbean nations. The first titles in the series were published
in 1995 to acclaim from academics, practitioners and the judiciary in the region. Several
editions followed, and they have now become essential reading for those learning and practising
Caribbean law.
This must have series is required holdings for any law library specialising in Caribbean
legal information.
Titles in this series include:
Alternative Dispute Resolution
Albert Fiadjoe
Commonwealth Caribbean Business Law
Rajendra Ramlogan and Natalie Persadie
Commonwealth Caribbean Company Law
Andrew Burgess
Commonwealth Caribbean Civil Procedure
Gilbert Kodilinye and Vanessa Kodilinye
Commonwealth Caribbean Constitutional Law
Sir Fred Phillips
Commonwealth Caribbean Land Law
Sampson Owusu
Commonwealth Caribbean Law and Legal Systems
Rose-Marie Belle Antoine
Commonwealth Caribbean Public Law
Albert Fiadjoe
Commonwealth Caribbean Tort Law
Gilbert Kodilinye
Commonwealth Caribbean Law of Trusts
Gilbert Kodilinye and Trevor Carmichael
Judicial Review in the Commonwealth Caribbean
Rajendra Ramlogan
Commonwealth Caribbean Administrative Law
Eddy Ventose
Commonwealth Caribbean Contract Law
Gilbert Kodilinye and Maria Kodilinye
Commonwealth Caribbean Practice and Procedure
Dana S. Seetahal
Commonwealth Caribbean Employment and Labour Law
Natalie Corthésy and Carla–Anne Harris-Roper
Commonwealth Caribbean Tort Law
Gilbert Kodilinye
Commonwealth Caribbean Property Law
Gilbert Kodilinye
Commonwealth Caribbean Business Law
Natalie Persadie and Rajendra Ramlogan
Commonwealth Caribbean Corporate Governance
Edited by Suzanne Ffolkes-Goldson
Forthcoming titles:
Commonwealth Caribbean Intellectual Property Law
Eddy Ventose
Commonwealth Caribbean Civil Procedure
Gilbert Kodilinye and Vanessa Kodilinye
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COMMONWEALTH
CARIBBEAN
FAMILY LAW
Husband, Wife and Cohabitant
Karen Nunez-Tesheira
First published 2016
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2016 Karen Nunez-Tesheira
The right of Karen Nunez-Tesheira to be identified as author of this work has
been asserted by her in accordance with sections 77 and 78 of theCopyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Nunez-Tesheira, Karen, author.
Title: Commonwealth Caribbean family law : husband, wife and cohabitant /
Karen Nunez-Tesheira.
Description: New York, NY : Routledge, 2016. | Series: Commonwealth Caribbean
law series | Includes bibliographical references and index.
Identifiers: LCCN 2015050375| ISBN 978-1-138-80179-0 (hbk) | ISBN 978-1-138-80180-6
(pbk) | ISBN 978-1-315-75468-0 (ebk)
Subjects: LCSH: Domestic relations—Caribbean, English speaking. | Husband
and wife—Caribbean, English speaking. | Marriage law—Caribbean, English
speaking.
Classification: LCC KGJ143 .N86 2016 | DDC 346.72901/5—dc23
LC record available at http://lccn.loc.gov/2015050375
ISBN: 978-1-138-80179-0 (hbk)
ISBN: 978-1-138-80180-6 (pbk)
ISBN: 978-1-315-75468-0 (ebk)
Typeset in Baskerville
by FiSH Books Ltd, Enfield
CONTENTS
Foreword xxvi
Preface xxviii
Table of Abbreviations xxix
Table of Cases xxxi
Table of Legislation xlv
1 INTRODUCTORY MATTERS 1
1. SCOPE OF WORK 1
A The Commonwealth Caribbean jurisdictions 1
B The matrimonial causes 1
2. FAMILY LAW OF THE CC JURISDICTIONS 1
A The legislative models 1
B Statutory innovation: impact of socio-cultural norms 2
3. RECEPTION OF THE MATRIMONIAL LAWS OF ENGLAND 2
A Introductory 2
B Current position in the CC jurisdictions 3
4. THE ADMINISTERING COURTS 6
A Introductory 6
B Matrimonial proceedings and applicable court 7
5. JURISDICTION IN MATRIMONIAL CAUSES: QUALIFYING AS AN
APPLICANT 7
A Introductory 7
B Common law principles in brief 8
C Statutory position – abolition of wife’s dependent domicile 8
D Position in CC jurisdictions: abolition of wife’s dependent domicile and
qualifying as an applicant 8
6. RECOGNITION OF FOREIGN DIVORCES, LEGAL AND JUDICIAL
SEPARATION ORDERS AND NULLITY OF MARRIAGE DECREES 11
A Introductory 11
B The common law rules –Belize and Guyana 11
C The statutory rules – Anguilla, Antigua and Barbuda, Barbados, BVI,
Dominica, Grenada, Jamaica, Montserrat, SVG, St Lucia, St Kitts and
Nevis, The Bahamas, Trinidad and Tobago 12
7. NON-RECOGNITION OF FOREIGN DECREES AND ORDERS 15
A Introductory 15
B Statutory position – codification of common law rules – Barbados, Jamaica,
Trinidad 15
viii Commonwealth Caribbean Family Law
8. RECOGNITION OF NON-JUDICIAL FOREIGN DIVORCES 16
9. RECOGNITION OF FOREIGN MARRIAGES 17
A Introductory 17
B The common law rules in brief 17
2 MARRIAGE 18
Part One: The marriage contract 18
1. INTRODUCTION 18
2. THE CONTRACTUAL REQUIREMENTS 19
A Introductory 19
B The parties must be single at the time of marriage 19
C Parties must be of the opposite sex –all jurisdictions save St Kitts
and Nevis 21
D The age requirement 22
E Lack of mental capacity and consent 27
F Prohibited degrees of relationship 28
Part Two: Solemnisation of marriage: the formalities 31
1. INTRODUCTORY 31
2. THE PRELIMINARIES: THE AUTHORISING DOCUMENTS 33
A Introductory 33
B The certificate issued by a public officer 33
C Certificate issued by minister of religion: marriage officer’s certificate 34
3. NOTIFICATION FOR GRANT OF CERTIFICATE IN GENERAL 34
4. REGISTRAR’S CERTIFICATE NOTIFICATION PROCEDURE 34
5. MARRIAGE OFFICER CERTIFICATE OF PUBLICATION OF BANNS
PROCEDURE 35
A Introductory 35
B Publication of banns – Christian marriages 35
C Hindu and Muslim marriages: no notice required – Guyana, Jamaica,
Trinidad and Tobago 36
6. MARRIAGE LICENCE 36
A General licence 36
B Special licence – Antigua and Barbuda, Barbados, BVI, Grenada,
Jamaica, St Kitts and Nevis, SVG, Trinidad and Tobago 37
7. DURATION OF VALIDITY OF CERTIFICATE AND LICENCE 38
8. SOLEMNISATION OF MARRIAGE – THE WHO, WHEN, WHERE
AND WITNESSES ETC. 38
A Introductory 38
Contents ix
B Who –the marriage officer requirement 39
C When – the time requirement 41
D Where – place of solemnisation requirement 43
E Witnesses, celebrant and consent requirements 45
9. ADDING RELIGIOUS CEREMONY TO CIVIL MARRIAGE 45
10. REGISTRATION OF CIVIL AND RELIGIOUS MARRIAGES:
POST-SOLEMNISATION 46
11. NON-COMPLIANCE WITH FORMALITIES AND MODIFYING
PROVISIONS 47
A Formalities in general 47
B Knowingly and wilfully – all jurisdictions save Barbados, St Lucia, Jamaica 48
C Good faith and subsequent cohabitation – Barbados 50
D Dispensing with proof of certain matters post-solemnisation of marriage
– all jurisdictions save Barbados, St Lucia, Jamaica 51
E Absence of bann or licence – St Lucia 51
F Directory versus mandatory provisions – all jurisdictions 51
12. CLINICAL MARRIAGE 52
3 THE NON-MARITAL UNION: THE STATUTORY SPOUSE (Barbados,
Belize, Guyana, Jamaica, Trinidad and Tobago) 54
1. INTRODUCTORY 54
2. CLASSIFYING THE NON-MARITAL UNION 54
3. STATUTORY DEFINITIONS – Barbados, Belize, Guyana, Jamaica,
Trinidad and Tobago 56
A Introductory 56
B By jurisdiction and purpose 56
4. COMMON ELEMENTS IN STATUTORY DEFINITIONS:
DECONSTRUCTING THE STATUTORY DEFINITIONS 58
A Introductory 58
B Meaning of living together/cohabitation 59
C The minimum period of cohabitation 62
D Meaning of ‘continuously’ and relevance of intention 62
5. TERMINATION OF COHABITATION: TIME LIMITS IN MAKING
APPLICATIONS 63
A In general 63
B Intention: an essential element 63
C Trinidad and Tobago –minimum period of cohabitation not a
pre-requisite in specified instances 64
D Jamaica and the effect of the passage of PROSA 65