ATTORNEY General and Minister of Legal Affairs Anil Nandlall yesterday convened a meeting with relevant stakeholders and representatives from the Red Thread Association, political parties, Women and Gender Equality Commission and the legal fraternity at his Carmichael Street Office, to discuss issues relating to the Civil Law (Rights of Persons in Common Law Union) Bill 2012, which was recently laid in the National Assembly. Minister of Human Services and Social Security, Jennifer Webster was also present.
He explained that this session should have been held before the actual tabling of the bill, since he hadn’t anticipated that it would have been fully supported. The bill seeks to address a lacuna (missing section) in the law that has caused many miscarriages of justice.
In 1990, a series of legislation was passed in Parliament with the objective of equating the status of common law unions with that of legal marriages. This came in light of the proliferation of common law unions and the law then did not accord to spouses and the products (children) of these unions the rights that marriage confers.
Parliament then enacted two pieces of legislation, the Married Person Property (Amendment) Act and the Family Dependents Provision Act. Persons living in a common law union who decide to go their separate ways are dealt with in the former.
In this instance, it was left up to judges to devise all types of mechanisms to address what was an injustice especially to women of those common law unions.
The Family Dependents Provision Act, on the other hand, allows for a woman, whose common law spouse has died, to make an application to the court for provisions out of the estate of the deceased, in the event that she feels that a will or the rules of intestacy, or both, do not make adequate provisions.
Minister Nandlall explained, however, that a gaping hole was left, relating to the non-availability of a right given to a spouse of a common law union to approach the court in the absence of a will that would have appointed him/her executrix or executor, giving that person the right to apply for letters (a legal mechanism that allows for a person to assume control the estate of the deceased) of administration in court.
“Not being equipped with the ability to do so, a common law spouse was really left in the cold…this was raised by the Bar Association with then Chancellor, Desiree Bernard, who accepted that it was an oversight. This bill is intended to correct that oversight,” he said.
Clause Two of the bill deals with the conferment of the right of the spouse to access the law in relation to intestate succession, same as a married spouse, while Clause Three is seeking to amend the Family Dependents Provision Act to reduce seven years to five.
Over the past few weeks, articles have surfaced in the press that the bill is confined to a single woman and a single man living in a common law union for less than five years, and does not address instances where parties of a legal marriage have physically separated for a long time and have developed common law unions with third parties.
“In the crafting of the amendment, we addressed our minds to that, but the reason why the bill is crafted in the manner in which it is, is because we would have had to deal with a different problem, one which the religious organisations would have raised their arms at; we would have, in a sense, been legitimising adultery and bigamy as we would have been condoning two unions,” Minister Nandlall said.
In essence, unless a marriage is lawfully dissolved by a court, a man and woman still remain legally married; and to ask for the law to recognise another union in the face of an extant marriage, there would have been serious implications in relation to the laws of bigamy and this would have legitimised an adulterous relationship.
Stakeholders were given the opportunity to discuss their concerns and seek clarifications with regard to the provisions of the bill, which is set to be debated in Parliament shortly. The bill was tabled on June 27.