Married couples are treated better under the law – David

While there is provision under the law for persons exiting failed marriages to claim assets and maintenance, the same cannot be said for persons involved in common-law relationships.

And with that in mind, a call has been made to amend this country’s Matrimonial Causes Act to apply to common law unions.{{more}}

This was crux of the discussion being led by barrister and solicitor Paula David, at the St Vincent and the Grenadines Bar Association third Agnes Cato Memorial Lecture, held at Frenches house on March 30.

The topic was: “When the relationship ends: The distribution of assets on the breakdown of common law unions.”

David said legislation in St Vincent and the Grenadines gives very little recognition to the fact that common law unions are a normal part of our social landscape.

“We have laws which give financial protection to women and men in a marriage. A man or a woman in a legally recognised marriage can, if they are in need and the other party refuses to assist them, go to the Family Court or the High Court and claim maintenance.”

“When a marriage breaks down, the husband or the wife can go to the High Court and ask the court to award them their fair share of the assets which they have acquired over the course of their lives together.”

This, is however, not the case for persons in a common law union.

David explained that these persons cannot seek maintenance in either the Family Court or the High Court. She stated that there is no provision under the law for a common law husband or wife to assist the other financially if the partner is in need.

The attorney pointed out that in other Caribbean jurisdictions, parliaments, having recognising common law union as a cultural norm, have put in place laws to govern what should happen to family assets such as the family home when the common law relationship ends.

“We do not yet have any similar legislation. When a Vincentian couple in a common law union breaks up, we have to look to what lawyers call equity, if we are to seek justice for the parties. The principles of equity are judge made rules which have developed in England over centuries,” David explained.

She said that one problem with judge made rules, is that judges are reluctant to make them. David added that England does not have the same culture, social structure and economy as St Vincent, therefore, common law unions are not as time honoured or enduring in England as they are here.

She also said that one can draw that it is difficult to predict what, if anything will be awarded to a party whose name is not on a deed, under the law as it now exists in this country.

“As it stands, married couples are treated better under the law than common law couples. There can be no justification for this. It is discriminatory and discrimination – that is, unequal treatment under the law is unacceptable in a democratic society, David stressed.

She also recommend that we adopt the pre-nup and post-nup provisions which exist in the Trinidad and Tobago and Jamaica legislation.

“Currently, the Matrimonial Act expressly forbids pre-nups. I don’t believe there is one lawyer or judge in Saint Vincent and the Grenadines who does not find divorce cases painful.”

“The disappointment and anguish people experience when a relationship breaks down can transform them from perfectly reasonable people to being petty, vengeful and irrational.”

She is of the view that if people are allowed to have pre-nups, they would at least know what to expect on the breakdown of their relationship.

“Knowing what to expect will give them one less reason to feel resentful when they find themselves in the painful and disorienting environment of a breakup,”David added.

Agnes Cato was among the first female members of the Bar of St Vincent and the Grenadines. She worked at both the Private Bar and the Public Bar during her long and illustrious career.

The lecture was chaired by president of the SVG Bar Association, René Baptiste.(KW)