Introductory Matters

• Pages: 1-17

CHAPTER 1

INTRODUCTORY MATTERS

1. SCOPE OF WORK

A The Commonwealth Caribbean jurisdictions

This text will examine the matrimonial causes law as it applies to the husband and wife, and

cohabitant, where applicable, in respect of the following Commonwealth Caribbean (CC)

jurisdictions:

Anguilla Jamaica

Antigua and Barbuda Montserrat

Barbados St Christopher and Nevis (St Kitts and Nevis)

Belize St Lucia

British Virgin Islands (BVI) St Vincent and the Grenadines (SVG)

Dominica The Bahamas

Grenada Trinidad and Tobago

Guyana

Accordingly the term CC jurisdictions where used in the text shall refer to the above-listed

jurisdictions unless otherwise stated.

B The matrimonial causes

The matrimonial causes of the respective CC jurisdictions which will be examined are the laws

governing a valid marriage; nullity of marriage; judicial separation; dissolution of marriage;

spousal support applications during and after marriage, whether in respect of spousal mainte-

nance or property adjustment orders; family provision orders and spousal domestic violence.

2. FAMILY LAW OF THE CC JURISDICTIONS

A The legislative models

The family law of the CC jurisdictions, with the notable exceptions of Barbados, Jamaica,

Antigua and Barbuda and St Kitts and Nevis, is modelled in the main on current or former

English matrimonial legislation. In the case of Barbados, and more recently Jamaica, most of

the family law legislation, in particular with respect to divorce, spousal maintenance and prop-

erty orders are based on Australia’s Family Law Act, 1975. With respect to Antigua and

Barbuda and St Kitts and Nevis, the law governing matrimonial causes is a combination of the

English law of trust in respect of spousal property applications, and more recently, country-

specific divorce legislation governing dissolution of marriage and spousal maintenance

applications.

While jurisdictions have increasingly moved away from adopting, wholesale, English

matrimonial law models, the matrimonial laws of all the CC jurisdictions originated, and were

at some point identical to the matrimonial regime, both statutory and common law of England

with the qualified exception of St Lucia. In the case of St Lucia, the matrimonial law is in part

based on the French civil law system. Nonetheless, the laws of the CC jurisdictions, including

the matrimonial laws are modelled, and in some cases, identical to current or repealed matri-

monial laws of England.

B Statutory innovation: impact of socio-cultural norms

Family law, arguably more so than any other area of the law, is impacted or informed by

prevailing social and cultural norms. Those norms and values which underpin, shape and

define familial relationships in the CC jurisdictions included in this text are becoming increas-

ingly imported into the legislation which governs those relationships.

Examples of the impact of socio-cultural norms on the region’s matrimonial legislation

include the statutory recognition of the common law spouse in the jurisdictions of Barbados,

Belize, Guyana, Jamaica and Trinidad and Tobago, (the statutory spouse jurisdictions); the

statutory provisions with respect to Hindu and Muslim marriages in the case of Guyana,

Jamaica and Trinidad and Tobago, and the Orissa marriage in the case of Trinidad and

Tobago as well as the Muslim divorce with respect to Trinidad and Tobago.

3. RECEPTION OF THE MATRIMONIAL LAWS OF ENGLAND

A Introductory

As former British colonies, the CC jurisdictions have all received exclusively, with the excep-

tion of St Lucia and Guyana and Trinidad and Tobago, English statutory law, common law

and the law of equity. In so far as the statute law in general is concerned, Patchett, in his semi-

nal work, “Reception of Law in the West Indies” identified the four methods by which English

statute law has been incorporated into the laws of the various CC jurisdictions, that is by

express extension by the UK Parliament of particular statutes; by adoption through incorpo-

ration by reference in the colonial legislation, either by express incorporation of named statutes

or by general incor poration clauses; by adoption to the situation of the relevant CC jurisdic-

tion and reception of the provisions of the English statutes; and by reception under the

condition of the colony of the common law rules relating to statutes of general application in

force in England before a specified date, usually that of conquest or settlement.1

With respect to the pattern and extent of reception of English statute law, common law

and equity, Aubrey Fraser in his article, “Legal Developments and Law Reform in the West

Indies”2divided the colonies into two main categories – colonies acquired by settlement which

were the majority of CC jurisdictions and those colonies acquired by conquest or cession. In

the case of colonies of settlement, Fraser noted that the colonists carried so much of the

English law as is applicable to their own situation and the condition of the colony, and in those

colonies there was no difficulty in administering English law. In colonies acquired by conquest

and cession, the colonists retained the existing legal system in so far as it was not repugnant to

natural justice or until the Crown, which had an unfettered power of enacting legislation,

made alternative provision. With the exception of St Lucia and Guyana, which were colonies

2 Commonwealth Caribbean Family Law

1 (1973) J.L.J, 17–35, 55–67, Nor man Manley Law School, Mona Jamaica.

2 (1973) J.L.J. 67–75, Norman Manley Law School, Mona Jamaica.