Legal Consequences of Marriage and Union other than Marriage

• Pages: 69-80

CHAPTER 4

LEGAL CONSEQUENCES OF MARRIAGE AND UNION

OTHER THAN MARRIAGE

1. INTRODUCTORY

Marriage is not only a personal and private union between two consenting parties, but as an

institution, marriage is distinguishable from other non-marital unions in that it carries with it

certain benefits, obligations, rights and privileges1and more particularly “confers the position

or status of husband and wife”2which, subject to the specified statutory exceptions applicable

to the jurisdictions of Barbados, Belize, Guyana, Jamaica and Trinidad and Tobago, (the statu-

tory spouse jurisdictions), areconferred and applicable only to parties to a de jure marriage. This

chapter will examine the main leg al consequences which arise as a direct result of the lack of

legal status of the non-marital union or de facto union as compared to the marital union, includ-

ing where applicable, the jurisdictions of Barbados, Belize, Guyana, Jamaica and Trinidad and

Tobago in which jurisdictions, persons who qualify as statutory spouses enjoy, some, but not all,

of the rights and entitlements traditionally reserved to the marital spouse.

2. FORMALITIES

A main distinguishing feature between a mar riage and a non-marital union is the statutory

formalities which are required to enter into and terminate a marital union, and for which there

is no such equivalent in respect of the non-marital union. In order to be valid, a de jure marriage

is subject to and must comply with the statutory formalities as set out in the respective marriage

legislation of the various CC jurisdictions. In similar fashion, the respective matrimonial legis-

lation of the various CC jurisdictions prescribes the formalities required to bring a marriage to

an end whether by divorce or nullity of marriage proceedings, as the case may be.

This absence of formalities in respect of the entry into and termination of non-marital

unions has a direct impact in the jurisdictions of Barbados, Belize, Guyana, Jamaica and

Trinidad and Tobago, which jurisdictions recognise such non-marital unions in that in order

to qualify as a statutory spouse or cohabitant as the case may be, the statutory definition must

be complied with. A main component of the qualifying definition is that the parties must have

cohabited for a minimum period of five years as a prerequisite to making, inter alia, applications

for a property adjustment or a spousal maintenance order. As the case law examined in

Chapter 3 illustrates, such applications have failed where the claimant in a disputed case, is

unable to establish that the relationship has lasted for the minimum requisite period. In the

case of a de jure mar riage, the date on the marriage certificate is clear evidence as to the date

when the marriage commenced while in the case of the non –marital union there is no such

cogent or documentary proof of the date of commencement of cohabitation.

With respect to the time limits for making an application for a maintenance or property

adjustment order, a statutory spouse must bring the application within the period specified

upon termination of the union. Again, given that there areno for malities attendant the termi-

nation of non-marital unions, establishing the date of termination so as to come within the

1 See Hyde v Hyde and Woodmansee (1866) 1 LR&PD 130 at 133 per Lord Penzance.

2 Ibid.