WORKSHEET I – Marriage and Other Legitimate Unions

Can a cohabitational relationship exist with someone who is already legally married?
Yes, it can and judges believe so as well. They do this seemingly to observe the status quo of
society but the issue becomes in doing so, how far should they go?

Marriage
Hyde v Hyde and Woodmansee gives the definition. In this case the marriage was held to be void
because of polygamy. (To the extent that a marriage does not reach the definition given in the
case, amongst other things, it is void/voidable)
Marriage is both a-:
 Contract – special contract but you can find some of the aspects of regular contracts
in a marriage:

Contracts Marriages
 Parties must have capacity to  Parties must be of minimum age
contract
 Formalities must be met (offer,  Formalities must be met
acceptance, consideration, acting
to a detriment)
 Capable of being void/voidable  Capable of being void/voidable
 Courts can grant a decree of  Marriage can end by a decree of
nullity nullity
 Contracts can end on agreement  Marriage cannot end on
agreement alone; the courts must
approve.

 Status – (example of status in the change from Ms. To Mrs.):

- when you’re married the law recognizes you in certain way
- a third party has to deal with you differently (we will see this more in
worksheet II with the legal consequences of marriage). With marriage will
see you to be connecting to the other party so other parties would have to
treat you differently than they would have had you not been married.
- After marrying a citizen of a country, once complying with the countries
stated rules in its immigration legislation you can become a citizen also.
Requisite conditions for a marriage-:
Affinity and consanguinity?
 In-laws
Blood relation
Formalities for a marriage
 One of the two is needed to authorise solemnization by the relevant officiant or
marriage officer (either of whom must have a licence. If they do not that could affect
the marriage).

This is to ensure that the parties are single as well as issues of

Certificate:
affinity and consanguinity. Licence:
- usually used. Gotten within six - usually for those who wont be in
months so the wedding takes place the counrty long enough
within that window before it is (destination weddings)
actually received.
- can be solemnized by a minister - TT sec. 19 Marrigae Act calls for
of religion or relevant public 3 days prior to the wedding but
officer/celebrant. you could get special licences if
- TT sec. 16 Marriage Act calls for you have less time than that.
marriage within six months of the
notice to be placed a marriage
notice book in a conspicucous
place when done by marriage
officer.
- TT sec. 17 Marriage Act calls for
publication of banns in the
Church's book for 2 weeks w/
copies to be sent to district
registrar. Announcement must be
made during service.
 TT sec. 28,29 Marriage Act calls for a particular time frame during a day for
marriage (9:00am – 4:00pm).
At least two credible witnesses (typically Maid of Honor and the Best Man)

 Parties must be single as a formality (Acknowledgment of the existence of

Polygamous religions)

 Hyde v Hyde-:
This case says that the getting married while married to another is bigamy and the latter of the
marriages is void. The man and wife were Mormon (believe in polygamy) and they got married
in Utah, USA in the Mormon faith. The husband left the faith and went to England while the
wife remained. She got married to someone else in accordance with the faith. The husband
petitioned for the marriage to be voided in England. Courts in England had jurisdiction for
 marriages outside of their own but in this case said that the marriage was not in accordance with
their laws because it was inherently polygamous. (even if two people marry under a polygamous
religion, where they don’t marry and stay connected, the polygamous relationship was not
recognized. This was also the standing in Henry v Henry however Cf Raffique v Raffique
changed this).
 Henry v Henry-:
Husband and wife married under Muslim Marriage Act and the husband was not maintaining her.
she filed an application for maintenance stating that he was willfully neglecting to maintain her.
She files under the Matrimonial and Property Proceedings Act (governed Christian/civil
marriages). The husband argued that the marriage was polygamous and therefore not recognized
by law. As such, he contended that she could not seek protection from the law. The court agreed
with the husband’s assertions saying that they had no jurisdiction to make an order for
maintenance.
 Cf Raffique v Raffique-:
This is Court of Appeal case that held Muslim marriages to be valid and legally binding. They
(Muslim marriages) are on par with regard to status and remedy as any Christian or civil
marriages.

 Promise to Marry
The issue here was whether a promise to marry someone while married to another can be
valid. The law still thinks person should be valid single. A person could, in olden times, sue
Shows the lawon a marriage
requires so if someone
singleness promise to marry you could sue. (CONTRAST BOTH CASES)
in marriage.
 Spiers v Hunt-:
In this case, at the time that the male made the promise to the plaintiff he was married to
someone else. She (the plaintiff) knew that he was married, in fact, his wife was ill and he
promised the plaintiff that he would marry her when his wife passed away. In consideration
flowing on the promise and acting to her detriment, the plaintiff was induced to commit adultery
with him. They produced four extra marital children. The wife passed and the male did not marry
her so she sued on the promise. The court said that the promise is contrary to public policy and is
therefore illegal. The court went further to say that the tendency of such promises is to make a
man unfaithful to his wife and that the law should discourage anything that tends to remove the
intimacy between a husband and a wife. Despite the wife suffering from an incurable disease,
she was entitled to her partner’s undivided attention until death.
 Fender v St. John Mildmay-:
During the period between the grant of a decree nisi and decree absolute (known to make the
marriage a mere shell) a promise to marry was made but did not follow through after the decree
absolute was obtained. The court held that promise could be enforced because it was made in a
context where the marriage was a mere shell.
 Requirement for Minimum Age
In TT there are four Acts-:
 Marriage Act – originally no age was specified.
 Hindu Marriages Act These Acts all specified different
 Muslim Marriages Act minimum ages of marriage
 Orisha Marriages Act
Pre-Miscellaneous Provisions (Marriage) Act of TT amended all of the above making the
minimum age 18 years (which means no consent is required since this is the age of majority and
capacity to contract)

The past law violated the rights of woman and children specifically because under these Acts the
ages for women were always lower.
Woman were disproportionately affected by the laws. It was also at variance with the age of
capacity to contract in that TT in conforming with the CRC passed legislation to recognize
children’s rights. There the age for consenting to sexual activity is 18 years but the Act allowed
for this as 12 years.
It was too dissonant because it made you wonder were the numbers chosen at random, were they
making arbitrary decisions for the lives of others.
The law was tasked to find a balance between religious freedoms and the physical freedoms of a
person.

At common law originally the marriageable ages where boys 14, girls 12
 UK Age of Marriage Act – 16 years (still an age of minority).

Pugh v Pugh-:
Where a girl of 15 wed to a British national in Austria, where her age was acceptable. They were
married for four years and went to Britain. The wife petitioned for a nullity on the ground that
she was married under the minimum age and the decree was granted.
The effect of no consent is not to void the marriage, it is there to provide protection because the
marrying officer has a responsibility when marrying a couple.
  Outside of Consanguinity and Affinity
 Consanguinity-:
Bar for this is on the basis of moral and eugenic grounds.

Cannot Marry-:
Parents and
Chirldren (up blood
uncles/aunts to
and down) brothers/sister
neices/
s as well as
which includes nephews
half-brother/si
grandparents. infinitum
ster
infinitum

 Affinity-:
When married, a husband and wife become one and the husband stands as the one. Marring in-
laws can cause tension and is prohibited to avoid the marrying of step-children.
UK Marriage Enabling Act before 1960 set out the prohibition. It was removed and TT operates
in the 1960 position.

 Parties must be Male and Female

We won’t get into same-sex marriages but instead explore transgender unions.

The issue to be explored here is where a party has changed their sex and now identifies with the
other and marries someone of their original sex (opposite to the new sex) is that marriage void or
valid?
In the Commonwealth Caribbean (TT) sex is recognized at birth.

 Corbett v Corbett-:
Petitioner was a man who had undergone a surgery for the removal of his (now her) genital
organs to be replaced with artificial female ones. She married a man but the law held her to be a
man. The ocurt asserted that sex is ascertained by three independent biological attributes which
are chromosomes, gonad and genitals (these things cannot change and would make you
male/female despite the cosmetic changes). The marriage was held to be void.
 Goodwin v UK-:
This was not a case of a failure to recognize marriage but took place before Bellinger. In this
case, the issue where a male (now assigned as a female) brought action for the required age of
retirement for men and women (men retired at 65 while women retired at 60). She would have
had to pay national insurance until the age of 65 unless she could prove that she was a female.
The process for proving involved the disclosure of all of her information and she felt as though
the Insurance Act was violating a person’s right to privacy under Art. 8 and 12 of the ECHR. The
court found that forcing a person to disclose information and not recognizing them to be of a
certain sex was a violation. The court stated that “we should beyond merely biological criteria
and consider other factors”.
 Bellinger v Bellinger-:
The petitioner was a transexual female who had be classified and assigned to be male at birth.
His marriage to a man was not recognized and he claimed that it was a violation of certain
human rights. He claimed that the law, in not recognizing his marriage, violated Art. 8 and 12 of
the relevant Act (ECHR) which highlights a person’s right for respect to his private and family
live as well as the right to persons of a marriageable age having the right to do so under national
law. The court said that not recognizing the marriage was indeed a violation of those two rights
(following the case of Goodwin v UK). But in relation to the issue of when a person is male or
female, they refused to comment saying that there were too many uncertainties as a result of a
lack of objective information on the subject. That is a matter for parliament.
As it stands, Corbett applies to the Commonwealth Caribbean.

Void and Voidable Marriages

 V oid M arriages
-ab inition meaning - Valid until
it never occured. annnuled and until
- any interested a decree is
person can bring obtained, it is valid.
proceedings - only parties to the
becuase there are marriage can bring

M arriages
based on public claim.

Voidable
policy.

For example, with the requireme

Jamaica would make the marria
When assessing the void or voidable nature of a marriage it is important to note that this depends mak
on the legislation of the particular jurisdiction in that what would make a marriage void in one
jurisdiction can make it voidable in another.

 Void Marriages-:
 Sec. 36 TT Marriage Act-:
If no notice. Certificate or licence was issued in accordance with the Act. For breach to the
degree of affinity and consanguinity.
 Sec. 13 (1) TT Matrimonial and Property Proceedings Act-:
For breach of degree of consanguinity/ affinity, minimum age, same sex, bigamy and failure to
meet mandatory formalities.
 Da Silva v Da Silva-:
In this case, the legislation set out the time for marriage and the marriage was conducted after.
The issue was whether marrying outside of that time period made the marriage void. The courts
held that one must distinguish between directory and mandatory formalities. Time would be a
directory formality. (the amendment was not necessary. It is not important)
 Gibson v Gibson-:
The parties in this case were trying to obtain a divorce after years of marriage but could not find
a copy of their marriage certificate. They went to the registrar’s office and they (the office) could
not find a copy (probably misplaced). The marriage was seen as void (ab initio) and the nullity
was granted.
 Juan v Juan, Juan and Campos-:
 Similar to Gibson. In this case, the offspring of the wife of the deceased asserted that a certain
will was valid (in the 1986 will he would have gained more than the other off springs with this
will). Here, we must bear in mind that when a person marries, any will that would have been
created prior to marriage is automatically revoked. Before this will his parent entered into a
These cases show(1981)
marriage that you
buthave to look at legislation
the ceremony to a formality so they got married again in 1993.
was allegedly
determine whetherbefore
The question a marriage is voidwas
the courts or voidable.
which marriage was the valid one? The court held that the
1981 marriage has no certificate but the 1993 did and was held as the valid of the two. The will
was therefore revoked and so the deceased dies intestate (w/o a will).
 Hughes v Hughes-:
This case was based on TT legislation that spoke about marriage officers knowingly and
willfully marrying persons w/o a licence the person would be liable to fine. In this case, it was
held that the couple was married by a marriage officer who to their knowledge did not have a
licence did not void the marriage. The marriage officer was liable to fine.
 Thompson v Thompson-:
In this case, where the marrying officer didn’t have a licence to carry out the ceremony in was
held that the marriage was void.

Rules of intestacy are VoidabletoMarriages-:

 according the jurisdiction. For example, in TT the wife will receive all
where there are no children. Where there are children,
Marriages are voidable in the absence the wife will due
of consent get half
to: and the child(ren) will
divide the other half amongst themselves. Next of kin will receive where none of these exist.
 Lack of Mental Capacity – this is the ability of the person to know that he/she is
entering into a marriage relationship. (part of the parliamentary debate as to why
children couldn’t get married because they don’t have mental capacity in the sense of
being mature). These cases however look at instances where it might have been felt
that there was force to enter into the marriage.

 Estate of Park-:
This case sets out the legal position to be applied in Caribbean cases. In this case it is
demonstrated that one does not need to have a very strong mental capacity to enter into marriage.
The court is simply looking to see:
1. That the person was capable of understanding the nature of the contract that they were
entering into.
2. That the party understood the responsibilities normally involved in that contract
3. The person was free from the influence of morbid delusions on the subject (steeped in
reality)
4. High degree of intelligence is unnecessary.
These subjective factors will be applied to the facts of the case. In this case, the offspring of the
deceased who would have benefitted from the estate brought claim. Before the death, the
deceased married a woman, revoking his previous will. He purportedly executed a will but the
wife got a decree that, that will should be revoked on the ground that the deceased, at the time of
executing the (having married her just a few hours before) was not of sound mind or memory
and as a result did not approve of the contents of the will. The marriage was seen as valid which
revoked the first will.
 Re Hill, Ernest Clarence-:
The son of the deceased wanted to set aside his father’s marriage saying that at the time of
marriage his father didn’t have the requisite mental capacity. The courts applied Estate of Park
and said that where there is evidence of a ceremony of marriage and cohabitation, those two
things make a presumption that there was consent.
 Small v Small-:
The husband 72 and wife 47, the husband said he didn’t consent to the marriage and entered into
it because the wife made a threat to kill if he didn’t. the court did not accept that to mean that he
did not consent and said that the fact that there was evidence of a dissolvement of his former
marriage, a ceremony and consummation on the wedding night; those were positive steps.
 Fear/ duress
 Singh v Singh-:
In this case, a girl of the Sikh religion married a man out of a sense of duty to her parents
(arranged marriage). She didn’t like the man and tried to set aside the marriage

H v H-:
 Small v Small-:
TUTORIAL I

1. “The concept of nullity of marriage is now comparatively unimportant in Commonwealth

Caribbean Family Law”.
Comparing and contrasting isn’t good enough try to break down the question further.
 Differences on the level of importance in certain jurisdictions is also important (TT, JA
and BDS). There is a difference in what would

Thesis:
The concept of nullity of marriage is important in Commonwealth Caribbean family law
as marriage still remains an institution observed by many however, it has comparatively
lost much significance with the recognition of cohabitational relationships in the
jurisdiction.
 Instances where a marriage is available for nullity (when its void or voidable)
 When is a marriage void?
 When is a marriage voidable?

2. Skippy and Florie joined up with a group calling itself the “Peace and Love Church”. Skippy,
age 19, and Florie, age 16, went through a ceremony of marriage at the main branch of the
Church. No formalities are required by that Church. The main branch is located in a house
rented by the leader, Minister Ted, in Cardontown. Florie had not told her parents that she
 was getting married. Following the ceremony, Skippy and Florie spent a weekend at the
Melvil Hotel. There were several attempts to consummate the marriage, all unsuccessful
because Skippy was nervous and Florie was worried about her parents’ reaction to the
marriage. As a result, Skippy’s confidence was damaged and he refused to attempt to
consummate the marriage again until he received counselling. Nickie, Skippy’s counselor,
advised him to undergo a course of therapy. During the course of therapy Nickie and Skippy
fell in love and began a sexual relationship. Florie, who felt that Skippy was cured, asked
him to consummate the marriage. Skippy told her to wait until his therapy was ended. Skippy
moved in with Nickie explaining to Florie that the move would result in a quicker end to the
therapy. Advise Florie with reference to the law in the Commonwealth Caribbean.
Intro-:
A person can be granted a decree of nullity by the courts where the marriage is void or voidable. Void
marriages are that ab initio meaning it never existed (here anyone, including persons not party to the
marriage, can apply). Voidable marriages are those that are valid until a degree of nullity is granted (only
the parties to the marriage can apply. De Reneville v De Reneville.

Issues-:
a) Whether the marriage is void on the basis of the minimum age limit?
b) Whether the lack of mandatory formalities observed by Florie and Skippy made the
marriage void?
c) Whether the marriage is voidable on the ground of non-consummation for incapacity or
willful refusal-:
- Attempt after ceremony, no one was able (one for worrying and the other for
nervousness)
- Attempt with failure because of Skippy’s refusal
- Attempt and failure on Florie’s request after she felt he was cured.

Law-:
a) With TT legislation, Trinidad and Tobago Matrimonial Proceedings and Property Act
and the Trinidad sections 13 and 14 as well as the Trinidad and Tobago Marriage Act
section 36, all set the minimum age of marriage, irrespective of religion and civil
relations, as 18 years.
b) Da Silva v Da Silva points out there are two types of formalities; mandatory ones that
must be observed and regulatory ones that if not observed would not affect the status of
the marriage. Section 36 of TTMA and section 13 of TTMPPA (Criteria to follow for
marriage to be valid)
marriage is void if a person knowingly and willing fully enters into
a marriage without due notice being given in accordance with
section 13 and 16 or w/o a certificate under section 15 or 18,
having duly been issued or license issued under the Act
 c) Any party to the marriage may bring a claim for a decree of nullity on the grounds of
non-consummation as a result of incapacity. However, only the party that is willing to
consummate can bring a claim for non-consummation on the grounds of willful refusal
(Harthan v Harthan).
- The first instance with failure amounts to psychological incapacity. The law requires
this to amount to invincible repugnance so much that it takes away your will. (Singh v
Singh).
- Would the second instance amount to willful refusal
- Condition as willful refusal

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If it is an issue of incapacity that turns into willful refusal, can the party who is refusing bring
claim for non-consummation by relying on the incapacity that existed before?
No, the party would not be able to. This is based on legislation that may bar him because he can’t
approbate. Meaning he can’t rely on the incapacity where his actions have shown contrary.
---------------------------------------------------------------------------------------------------------------------
Analysis-:
a) By virtue of the TT Marriage Act, Florie and Skippy’s marriage could be void. The void
nature of the marriage in this jurisdiction could be contrasted with legislation in another.
For example, in Jamaica the marriage would not be void because a 16-year-old could wed
with consent from parents, guardians or if necessary, the court (this marriage would not
be void in Jamaica because the absence of consent does not make the marriage void
there).
b) In applying Da Silva, they assert the formalities are mandatory when the act says that if
they are not met the marriage is void. Based on the facts, none of the mandatory
formalities were met based on what the church provided for. The marriage may be void.
 WORKSHEET II – The Legal Consequence of Marriage and Other Legal Unions
Part I-:
Consortium is relevant in marriage and is the essence of such. It is the test used to establish
whether there is a cohabitational relationship that gets the status of it.
Persons in unions other than marriage are protected by various status to give persons of the union
who would have been otherwise vulnerable certain protections. But to get the protection from the
relevant statute the persons would have to satisfy the court that the relationship is a
cohabitational relationship.
In other words, to gain protection you have to show that the relationship resembles a marriage
and for this, consortium must be present.
CC Sheffield (Case related to marriage) defines consortium as the sharing of a common home,
domestic life, right to enjoy each other’s society, comfort and assistance; the essence of a happy
marriage.
In examining consortium in different unions, the court does not assess the same of marriage and
Persons must
other reach
legal the legislative standard.
unions-:

Common Law Unions: Marriage:

  The court will assess to determine the We discuss
 The court assumes
consortium that consortium
in marriage when parties are looking for a divorce under
existence of consortium. exists in a marriage (Onceseparation
several grounds (to be discussed) including the (this is a no-fault ground -
meaning there is no fault to be placed on any party rather they just separate. This
formalities of marriage exist then the
is a breach in the marriage and parties would have to show that they have
assumption will bewith
separated in accordance made)
the requirements of legislation.

 When did it end because we are interested in when things go wrong?

When these things go array, they give rise to a number of issues. Issues including-:
- When can you get a divorce?
- When can you get maintenance?
- When is the spouse required to share property?
- What do you inherit after their death?
- When do you receive protection from abuse?

 Intention and actions  Intention and actions

To get a divorce in the Bahamas all you have to do is prove that
you were separated for 12 months and there is no possibility of
reconciliation.
Parties would show this by separation which is proven by the
absence of consortium.
Consortium in Marital Relationships-;
The case below show a hiccup in the law because in family law you are relying on judges to
assess relationships but they apply their own status. Unions are so different and complex, who
Meaning p
can assess whether there is consortium especially where parties are living together.
your sill a
 Ramsay v Ramsay
In this case the couple lived together but the husband and wife did not share a room. The wife
locked her husband out because she heard that he might have been engaging in homosexual
activities. She required him to use a condom and he refused. She locked him out and stopped
performing other domestic duties for him. They shared the cost of taking care of the children.
The issue before the court was whether there was consortium. The court spoke to Todd and
Sheffield and the danger of allowing there to be separation where parties live in the same house.
Both referred to CC Sheffield and In the
They (the court)
Marriage spoke about the danger of parties being able “to have their cake and eat it too”.
of Todd.
The court found that she was not doing this. But because the parties were living together it was
harder to prove that there was no consortium. The court asserted that they place a high emphasis
on sexual relations.
 Heron-Muir v Heron-Muir
In this case the husband didn’t like his wife stating that “he lost all vestige of respect for her”.
She a nag and drank too much. He gave the court a scenario from event dated in December after
a function where she overdrank and was vomiting. He never communicated these feelings. After
that instance he moved out of the bedroom. The court acknowledged that all relationships are
different but sexual intercourse was not as important in this case as it was in Ramsay (the
husband could only rely heavily on the fact that he no longer stayed in the matrimonial room).
After giving time frame for being out of the bedroom he would contradict by adding in that the
wife took good care of him still (cooking hot breakfasts), he would assist with household duties
and they would still go out and have lunch, etc. when she got the petition for a divorce she was
completely blind-sided and after confronting him he said that his lawyer made him sign. He did
rely on the serving of the petition as well but his actions were not unambiguous. The court
looked to his intention and found it to be ambiguous at certain stages but held that him moving
out of the matrimonial bed and serving he petition were events that acted to destroy consortium.
 In the Marriage of Todd

Consortium in Common Law Relationships

To establish consortium in common law relationships typically requires meeting the definition
set out in the Act. The law in TT recognizes it and addresses a person wanting protection in the
form of maintenance and property distribution in one Act; TT Cohabitational Relationship Act
which is separate from the act that decides when persons who are married gets which is the
Succession Act.

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In Jamaica and Barbados person in marriage and cohabitational unions are dealt with in the same
Act. This means that a spouse includes persons in cohabitational relationship and the definition
for such a person is set out.
In TT where a party to a cohabitational relationship dies and the other wants to benefit from the
estates, that person cannot go in the during life Act which is the TT Cohabitational Relationship
Act. That surviving party would have to go in the after-death act which is the Succession Act.
---------------------------------------------------------------------------------------------------------------------
 During Life-:
Whether the relationship has ended or is continuing the person will want maintenance and
property redistribution. If this occurs, the Act will govern how this will happen and in s. 2 of TT
Cohabitational Relationship Act a definition of cohabitant and cohabitational relationship is
given (check handout).

 After Death-:
Here, the Succession Act usually applies and it was amended by the Distribution of Estates Act
(this amended all Acts related to estates after a person dies to reintroduce the cohabitational
relationship). Before 1998, cohabitational relationships had no protection.
TT law discusses succession different to how it addresses maintenance and property
redistribution because it deals with married people and cohabitants in the same Act.
 relationship ev

There is a suggestion here that the same factors would apply and so this undermines the
difference. In TT protection is sought in the same act that deals with marriage. The
cohabitational relationship under the Succession Act is:
The relationship between cohabitants who, not being married to each other, have lived
together in a bona fided domestic relationship for a period of not less than five years
immediately preceding the death of either cohabitant.
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We see a difference with this definition and that which is in the TT Cohabitational Act. In the
latter, there is no ‘five-year period’. The latter also sets out additional requirements (this will be
explored in the next worksheet).
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Delton v Stone
Justice Mendonca said it’s obvious that parliament never intended to treat married unions and
cohabitating unions the same because when looking at the factors considered in the
cohabitational act, they are very short compared to that in the act addressing married people
(TTMPE) which is long.
How do the Acts define the relationships?
It is important to note this because if a party to a cohabitational union wants to get the protection
of the particular Act as in you want to come under the succession Act to benefit from the
cohabitant’s estate, you must fit into the definition provided by the Act. You must be in a
cohabitational relationship. You must show that you:
 Live together as a husband and wife on a bonafided domestic basis (This really means
consortium)-:
Mohammed v Alberts, Evans v Keller and Maury v Neeta?
You will see that these cases go into the Australian law that kind of cite the marriage cases
Also note that Barbados and Jamaica have the same language in their Acts but
and describe consortium.
evidently different reputations
 For a specific period of time
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BARBADOS LEG.
Here, if you want to get maintenance or property distribution and you’re in a cohabitational
union you have to come under the Barbados Family Act. This Act deals with married people and
cohabitational relationships in the same legislation, this is similar to the Succession Act (note the
difference between TT and BD in addressing maintenance and property redistribution issues
because in the former they are dealt with in a different Act while in the latter they are dealt with
in the same Act)
Barbados does not use the language of there being “Cohabitational relationships’ but rather
Unions other than marriage. They define this as:
The relationship established when a man and a woman who not being married to each
other have cohabitated continuously for a period of five years or more and have so
cohabitated within the year immediately preceding the institution of proceedings.
In their definition of a spouse they use the word single which is important to note and exists
where the parties are in no other relationship.
---------------------------------------------------------------------------------------------------------------------
There are subtle but noteworthy distinctions to be made in the various jurisdictions (50:00)
Barbados and Jamaica have different definitions of “single”.
To benefit from these Acts, they would have to show:
1. Consortium – must be present for there to be a union other than marriage
2. Additional things – in JA, BD and TT for succession purposes you’re showing that it was for
five years. For property redistribution and maintenance in TT it a little more complex.

What does consortium entail for cohabitating people?

TT cohabitational relationship Act and the Succession Act include elements of consortium in the
definition for cohabitational relationships. (so does BD and JA).
In TT when the court is trying to establish consortium as seen in the cases aforementioned, they
looked at the New South Wales Australia Act which is more explicit in its definition for a de
facto relationship is unlike our act which gives a small definition (de facto relationship is
basically a common law union).
The factors observed in this Act are similar to those observed in BD however they did not state
their use of the Australian Act.
New Wales Features: Barbados Features:

Existence of sexual relationship Sexual relationship

Financial (inter)dependence Financial dependence
Mutual commitment to shared life Expectation of shared mutual dependency
Performance of household duties Share responsibilities for running home
Public aspect of relationship
Duration of the relationship
Care and support of child(ren)
Shared vacation
Shared use of assets
In Mohammed v Albert (facts given at 1:12:00) consortium held to have existed from 1997 in
their relationship which spanned from 1976-2001. There is consortium when there exists the
hallmark of domesticity which are society, maintenance or support and protection.
In Evans v Keller (facts given at 1:21:25) shows where consortium ends. We said 1998 but the
courts said 1999. This shows the level of uncertainty that is still present regarding the
establishment of consortium. In assessing consortium, where the court does not require the
hallmark of domesticity, you should always go back to the checklist in the Australian Act.
In Delton v Stone (facts given at 1:24:25) the court established three factors for the
determination of consortium in this case which are-:
 That he used to get his laundry done there
 He contributed to the household
 That he helped to take care of the children even though the court recognized that the wife
did more.
In (facts at 1:33:00) the court had to determine whether there was consortium to satisfy the
requirements of the Succession Act.

Part II-:
Legal Consequences of Marriage:

 The status of children legislation: in this, children born out of wedlock are equal in rights
to those born in it. Once upon a time they were called “illegitimate children”. This was a
tactic used by the law to punish immoral behavior by naming the child a child of no one
(the child ended up suffering because he/she wouldn’t be able to inherit anything from
the parents).

now they are

They weren’t
recognized as recognized
seen as the
the child of equally to
child of their
their mother those born in
parents
wedlockk.
 Married spouses had the right to financial support or maintenance (from each other now
but was originally a right of a wife against her husband – remanences of this still exist
today).
 Right to property encompassing the right to inherit or succeed from the estate by rules of
intestacy and testacy.
 Doctrine of unity of spouses (written in Christian theology) regarding man and wife as
one person. Lord Denning in Midland Bank Trust Co says succinctly that the law was that
when husband and wife become married, they become one and the husband was that one.
 Right of occupation – is only against the husband
 A husband could not be guilty of raping his wife R v R changed this. The reasoning was,
if in marriage you become one, how could you rape yourself? (Some jurisdictions still
don’t see it as rape NOT TT)
 Conspiracy – old offence where two people conspire together to commit a crime. In
almost all jurisdiction conspiracy is not enough further acts are required which constitutes
the criminal offence. Husband and wife, originally could not be found to be conspiring
together (another bi-product of the doctrine of unity because how could you conspire
with yourself?). There would have to have been a third party to establish conspiracy.
 Coercion – this worked as a defense to a woman who committed a crime in the presence
of her husband. If she did this then there was a presumption that she was coerced to do so
(or forced). Presumptions, as we know, can be rebutted. Only applied to married persons
so in cases like R v Court where persons believed they were married but actually weren’t
for failure to comply with formalities, the consequence would not stand.
The presumption is not abolished but the defense still stands in many jurisdictions like
section 7 of the TT Criminal Law Act where the presumption that a wife who commits a
criminal act in the presence of her husband is coerced is now abolished but a wife can
have a defense that she was coerced by her husband.
 No contractual capacity on the part of the woman. Balfour v Balfour presumes that
between a husband and wife there is no intention to create legal relations There was a
separation agreement between the husband and the wife where they agreed that the
husband would pay the wife a small amount every month and she agreed that she would
never ask for more. After a while she changed her mind and applied for a divorce
wanting more money. The husband pulled up that agreement and the court said that there
is a presumption that there is no intention to create legal relations. Husband and wife
have to show strong intention in the document.
Where agreements for financial affairs (for maintenance, property distribution or
arrangements for their children) they cannot exclude the court’s jurisdiction to preside
over the matter.
 If a tort was committed by or against a married woman, her husband had to be party to
the action.
 Spouses could not be liable to one another because of the doctrine of unity. Legislation
has changed this granting rights for actions to be brought and woman to be otherwise
represented.
  Law of evidence – neither spouse is competent or compellable to give evidence in
criminal or civil proceedings against each other. (Competent meaning able and compelled
meaning forced)
 Citizenship, immigration and domicile – in accordance with the jurisdiction’s legislation,
husband and wife can attain the nationality of the other. (this is subject to the process of
the jurisdiction)
 Statutory protection from domestic violence

Legal consequences of Unions other than Marriage-:

 Consequence of consortium
 Financial support and maintenance
 Property
 Inheritance and succession
 Statutory protection from domestic violence
Note: in these consequences we don’t see the ones that subjugate women but we do see some
important ones that are similar. This is where the question of the need to be married stems from,
giving the protections that are afforded for unions other than marriage.

TUTORIAL II
1. What are some of the ways that marriage impacts legal consequences in other areas of law?
Be prepared to discuss two of these.
2. With the recent developments in CC Family Law, parties to an intimate union need not wed.
They can enjoy all the benefits of marriage without taking that major step. Discuss.
Paraphrase for the question-:
Suggests that to get married you have to do a lot but with the cohabitational relationship you
don’t have to but you will reap the same benefits. (Whether there are benefits to marriage/ a need
to wed?)
Introduction-:
 Definition of marriage
 Definition of a cohabitational relationship
Body-:
 Nature and relationship of both & Developments
 Advantages of marriage
 Advantages of the cohabitational relationship
 Show that there are benefits that marriage have that cohabitational relationship doesn’t.
 Seem similar prima facie but there are certain aspects that show difference
 What are the major steps in marriage (formalities show that it is a major step)?
  Steps/definition required for cohabitational relationships (requirements set out in
legislation) – show difference in legislations of the region (Delvin v Stowe)
Conclusion-:
Though CC legislation has provided for the acknowledgement and limited protection of parties
to a cohabitational relationship, you can’t enjoy all the benefits of marriage in a cohabitational.

WORKSHEET III– Divorce

---------------------------------------------------------------------------------------------------------------------
Do we want divorce?
Ideally, we want the definition presented in Hyde v Hyde, a union for life. However, where
there exist certain circumstances that would necessitate a divorce, it should be available.
1. What kind of circumstances should justify divorce?
 Abuse for the preservation of life
 Adultery
 Falling out of love
2. Do we want to allow divorces only if a party has committed a matrimonial offence/fault?
(This fault in the marriage like breaking a vow.)
3. Do we want to take away all considerations of fault (matrimonial faults would include
adultery, desertion, cruelty?
4. Reconciliation (attempts to fix the marriage)? [happens before divorce]
5. Mediation (parties agreeing between themselves on how they will conduct their affairs as in
financial, maintenance, property redistribution, arrangements for the children, etc.) they
would bring this to the court will scrutinize it and make sure that it is fair? [happens after
divorce]
---------------------------------------------------------------------------------------------------------------------
 What should be the aims of a divorce law-
- Should be fair
- Seek to save marriages that could be saved
- No stir up bitterness between the parties – because it casts blame
- Timely procedures to protect

Divorce Regimes-:

Regimes: Nature: Grounds:

Matrimonial/Hybrid Here you only can get a divorce where Seen in Turks and Caicos Islands,
Matrimonial Offence the other party committed a fault and Guyana and Montserrat
[fault] you had not. ----------------------------------------------
The court has a duty to inquire into the a. Adultery
facts as far as it can. The court has to b. Cruelty
prove the ground but this goes directly c. Desertion (Constructive Desertion)
against the notion of there being privacy d. Insanity
between a married couple in their home. e. Rape, Sodomy/ Bestiality

Hybrid Matrimonial This is an extension of the fault regime Seen in The Bahamas, Belize, Antigua
Offence because petitioner is still petitioning on & Barbuda, St Kitts & Nevis
the strengths that the respondent did ----------------------------------------------
something. Grounds are the same as the
In this, there is often a non-fault ground matrimonial offence model.
included but it’s still phrased as a
ground.

Mixed Fact Regime TTMPA sec. 3 and 4 Seen in Trinidad & Tobago, Cayman
[Fault & No Fault] Showing the ‘irretrievable breakdown of Islands, BVI, Grenada
marriage’ as the sole grounds versus ----------------------------------------------
jurisdictions of the fault regime where a. Irretrievable breakdowns on facts
there are several grounds. of:
In this regime you would have to prove  Adultery
the breakdown in 1/5 facts which are the  Behavior that would make
“grounds” which combine fault and no- it unreasonable to be
fault. expected to stay
[In the UK’s mixed regime, they have  Continued desertion for 2
renamed the bars as reconciliation years
provisions.]  Living apart for a
continuous period of at
least 2 years
 Living apart for a
continuous period of at
least 5 years
No Fault Same sole ground as the mixed fault. Seen in Barbados and Jamaica
----------------------------------------------
a. Irretrievable breakdowns on facts
of:
 Separated and living apart
for continued period of 12
months

 No fault regime bars-: The rationale is that once you have done any of these things you
too become a party at fault.
 Connivance – this is going along with a thing. Sitting back and allowing it and then
after complaining.
 Collusion – this is when you get into a corrupt agreement in relations to the fault full
act after which a divorce is sought.
 Condonation – merely forgiveness. If you forgave the fault full act, this could bar you
from getting a divorce.

---------------------------------------------------------------------------------------------------------------------
Thoughts on the notion of being faultless in a marriage?
 There exist conflicts in marriage so the respondent might argue that it was the behavior of
the petitioner that led him/her to commit adultery or any other fault that could result in
the ending of the marriage.
---------------------------------------------------------------------------------------------------------------------
Outside of these bars, a court can dismiss a petition-:
 Where the petitioner is guilty of a fault – the court will say no, you committed a fault too
so you can’t file for a divorce.
 There was undue delay in presenting the petition – why might there be delay?
 If the petitioner engaged in desertion, willful neglect or misconduct that encouraged the
adultery [this goes back to the idea of there being fault on the part of the petitioner.

Grounds
 FAULT REGIME-:
 Adultery:
Dennis v Dennis – defines it as the voluntary sexual intercourse between husband or wife
and a third party of the opposite sex. [narrow definition]. This case goes further to say
that there must be actual sexual intercourse meaning that there is need for penetration. In
this case there was no penetration, therefore adultery never took place.
Bastable v Bastable – establishes that the matrimonial offence of adultery requires
proof beyond a reasonable doubt. In this case, the wife deserted the husband and he
petitioned under the grounds of desertion and that she committed adultery. The husband
is saying that wife committed adultery with Mr. S (who is married) whom they met and
his wife and Mr. S started associating based on the fact that neither of them worked
during the day. The husband knew that Mr. S was in the house every day. The court held
that this was not sufficient proof that adultery took place. In fact, in cross examination the
wife admitted to committing adultery with another man but the petitioner could not have
provided proof. The divorce was not granted on the ground of adultery rather on
desertion. [this case depicts the court’s high standard of proof requirement]
Leong v Leong – the wife went to Maracas with the co-respondent and the
husband got a private investigator to go and take pictures. The PI got pictures of the two
entering a guest house and coming out the following day after they went in. the ocurt said
that what needed to be proven was that on a preponderance [or balance] of probability
adultery took place. What the court needs is something of an opportunity and so they
were satisfied that adultery did take place.
Cleary v Cleary – this case asserts that it could be intolerable living with the
respondent for a reason other than the adultery so there is no need to show intolerance
based on this but just intolerance in general.

 Cruelty:
Jamieson v Jamieson – gives the rules that must be assessed to establish cruelty. The
concept of cruelty comprises two elements:
- Ill treatment with grave and weighty misconduct
- Harm to the spouse [the capacity for endurance is relevant]
The case urges you to not loo at one scenario and say that it is not cruelty rather you should
look at the whole thing because several trivial things could add up to fester cruelty. In this
case the wife claimed that the husband intended to impose his will upon her and her
housekeeping allowance was completely inadequate. He would refuse to grant her extra
money for expenses and say that he ‘hates the sight of her’ and slam the door in her face. He
was rude and threatening in the presence of her children and that he had humiliated her. her
health was deteriorating as within the last year of marriage she almost had a breakdown and
attempted suicide. The court said that in the case, someone ese might have been able to
endure these things however it was clear that they impacted you severely which would
suffice for cruelty.
Webster v Webster
Aldana v Aldana – this is a Belizean case where a husband claimed that his wife would
go drinking in the middle of the night and remain out for days. The court found this to be
mere unhappiness with her drunkenness, not cruelty.
Gollins v Gollins – the husband was building up death and neglected to support her in a
time when women had to be supported because of a lack of legal personality. She, as a result
had to lend him money, work and endure harassment from creditors. The court asserted that
he didn’t mean to be cruel but his actions were equivalent to cruelty.
Williams v Williams – this case asserts that not because a party might mentally ill that it
would amount to cruelty and you could divorce them. It says that one must look at the whole
situation. Here it was a situation where it was time for the husband to be able to leave.
 Desertion: with this ground there must be:
 Separation:
Hopes v Hopes – in this case the courts recognised that there could be desertion
between husband and wife in the dame dwelling. In this case, the wife started to occupy a
separate bedroom and quarrels between the parties occurred frequently and the husband
would retire to his room for peace and quiet. No special household duties were done for
him though he did dine off of meals prepared by the wife and with the family in the
common room. The court held that there was no separation because they are living
together
Mouncer v Mouncer – the facts of this case are similar to Hopes in that the parties
could not stand one another and lived in separate rooms. They did however eat dinner
together as a family for the benefit of the children. The court held that there was no
separation.
 Intention:
Perry v Perry – where the husband had delusions that there were men waiting in the
loft outside to have sex with his wife and so based on this he left. The court held that he
was not in his proper mind so he could not have been held to have deserted.
 Done without consent:
Bosley v Bosley –
 Without reasonable cause:
Baptiste v Baptiste – this is a Grenadian case where a husband had attachments to
other women and the wife confronted him on it. He said whether she accepted it or not
that’s how it is. The court held that that was the sort of behavior that could drive a person
from the house. The wife’s leaving was not in desertion but rather he led her to the
deserted state.
 Young v Young –
 A reasonable belief that the other party has committed a matrimonial offence:
Glennister v Glennister – says that even if it’s just a belief of some matrimonial
offence, the other party is free to leave.
Constructive Desertion:
Basically, means that the spouse that is remaining in the house is in desertion but the
spouse who left was forced to do so because of the remaining spouse. This would be the
great and weighty conduct that made the other spouse fear injury and feel the need to
leave.
Lang v Lang – where the husband constantly slapped and punched the petitioner.
Placed her across his knee and administered punishment, twisted her arms behind her
back, dragged her by the hair into the bathroom and held her head under water and called
her names. She told him if he continued that conduct, she would have to leave him
because it was affecting her health and she separated on two occasions before finally
parting. Before the final parting the husband took advice from one of his friends who told
him that the way to improve relationships would be to try ‘cave man stuff’. Based on this,
he forced her to have intercourse in a way that was very degrading and caused her to
suffer great indignity. He said he would use her however and whenever for that purpose
that he wanted. He argued that his desire was for the marriage to work and he even
sought out advice. The ocurt said that intention is different from desire. What are the
natural consequences of your action tat anybody could foresee? If you have intention to
behave in a way that would force your spouse to leave then you are in desertion.
Saunders v Saunders –
Bartholomew v Bartholomew – the wife was extremely messy and the husband
said he could not live in that situation so he had to leave. He said that if she didn’t clean,
he wouldn’t come back and she didn’t. he asserted that she deserted because she behaved
in a way that forced him to leave. The ocurt said no, her acts amounted to a
dysfunctionality and does not show that she had an intention. The offending spouse’s
behavior must be such that they give an intention for the marriage to breakdown. An act
or series of acts down with the intention to bring the consortium to an end.
 Insanity:
Whysall v Whysall – the court said that medical knowledge couldn’t have given any hope
of the party being cured even though the medication was keeping him to a neutral level.
He stood no chance of anything more than that. He could only be subject to a life where
he would be subjected to sympathetic supervision and care. The court found that these are
the type of situations that would constitute a ground for divorce.

 The respondent has behaved in such a way that the petitioner cannot reasonably be
expected to live with him/her:
 Bannister v Bannister – this is a case in the UK the wife was petitioning for a
divorce. She said that he hadn’t taken her out for two years, he didn’t speak to her unless
it was unavoidable and he would leave without her having nay idea as to where he was
going living an entirely independent life ignoring her completely. The judge said that is
not such unreasonable behavior. The court found this to be a linguistic trap because it
wasn’t a question of whether the husband’s behavior was unreasonable but whether the
spouse behaved in a way that the petitioner cannot reasonably be expected to live with
the respondent. [this introduces the notion of how the behavior affects the petitioner]
Ash v Ash – the court will look at the petitioner’s character and personality good
and bad. The petitioner in this case showed himself to be of such character, personality
and behavior that she could not be expected to live with the respondent.
Pheasant v Pheasant – husband wanted a divorce from his wife on the grounds
that he couldn’t reasonably be expected to live with her because she was unable to give
him the spontaneous demonstrative affection that his nature demanded. Because of this
he had developed a condition that made him totally egocentric and obsessed with
grievances. The court said no in such a situation we don’t want to know about the
subjective petitioner because you can have someone that is completely egocentric that
aren’t like him [we consider the reasonable man].
O’Neilregarding
the consent requirement v O’Neil –desertion
is a caseiswhere the court
not about argued
consent no, you vowed to stay together
to the
separation for
butbetter
ratherorconsent
worse.toInthe
thisdivorce.
case, the husband took on a personality where he became very
obsessed with house repairs. He would, for 2 years, undergo repairs and eventually began
questioning the paternity of the children. The trial judge dismissed asserting that the
petitioner said for or worse. The COA corrected this saying that the test was not for better
or worse but rather whether it is reasonable for this person to live with the other.
Thurlow v Thurlow – there was a mental illness causing the respondents
personality to change. She became aggressive causing damage to the house but it wasn’t
because of her, it was her mental illness. The husband had reached his end and that was
sufficient enough of a reason to not reasonably expect him to stay.
Note Well: Separation is not the
MIXED FAULT REGIME only element anymore
 Mixed Fault Desertion: [language here is important]. You would have to look at the law
on desertion which is intended separation without reasonable cause or the consent of the
other spouse. Early holding is seen in cases like Hopes, Nayor and Mouncer. In Mouncer
the court asserted that if persons are coexisting for the benefit of their children then they
can’t me seen as separated but later cases say that separation can be a matter of intention.
Later the court shifted its position to reflect that a couple can be separated and live in the
same home which is reflected in cases like Santos, Spanos and Mussio. Mussio is a
Trinidadian case where the judge didn’t observe the approaches set out in the early
holding and took the approach of Santos v Santos. In these cases, the court looked at the
intention of the spouses so that even though with the living circumstances you could see
that there was some sort of unity this would be disregarded to look at the intention.
Mussio v Mussio – the court looked at the different phases of the couple’s
relationship. The was a case of separation in which the husband wanted to rely on the
 ground (which is a non-fault fact that is apart of desertion as such it is the starting point
for establishing the ground) for two years. He had to prove to the court that he was
separated for five years even though he lived with her for that five years. The court
looked at the timeline, they were married in 1987 and in 2007 the husband filed the
petition for divorce. Nine of their years were unhappy and the court said in 2000 they had
started to occupy separate rooms and the husband told the wife lets try to fix the marriage
or else I would petition for a divorce. The wife did not make any efforts. In 2004 thing
deteriorated so much that they were still living separately but the husband bought his own
meals, the wife used to cook on Saturdays and would leave food for him but he didn’t
really partake even though she said she left for him. He would wash his own clothes (she
would wash his occasionally) but he never washed hers. He said he’d never been into her
room and of course there was no sexual contact. In 2007 they were renting and got a
notice to quit and the wife thought that he would rent with her but he said he would not
go anywhere with her. he petitioned for the divorce but had to prove five years of
separation. The court asserted that he would’ve had to have proven that they were
separated since 2000. They (the court) held that separation started from 2004 based on
the timeline and because of this, he had to wait out some more time.
---------------------------------------------------------------------------------------------------------------------
There is a movement across the regimes we see that in the fault regime the court is not being
realistic by seeing situations with a breakdown and saying that there is no breakdown. As the
movement continued from this position the court becomes more realistic in acknowledging that
even though parties live together it could be for the sake of the children and still be separated.
[The way the court probes the facts is not different.]
---------------------------------------------------------------------------------------------------------------------
Quoraishi v Quoraishi – the court said that the separation must be unjustifiable
that you left.
In section 8(5) of the TTMPA which refers to the ‘continuous period’ requirement under
the fact of separation. Its basically saying that yes you have to be separated for two years but if
you happen to get back together for less than 6 months then that doesn’t disqualify the separation
that occurred. [ Even though the court says continuous the law leaves room for breaking it to
accommodate reconciliation because it allows parties to try and live together again.]
In section 9(1) of the TTMPA provisions are made for the opposition on the part of the
court for the petition where it would cause ‘grave financial or other hardship to the respondent’.
Reiterbund v Reiterbund – in this case the wife would’ve benefitted from the husband’s pension
had they been married and so the court found this to be grave hardship. The court allowed the
husband to make an offer to her to get out of hardship. [same thing was done in Le Marchant v
La Marchant]
NO FAULT
  Irretrievable breakdown on separation continued for 12 months [no fault jurisdiction]
Minott v Minott – the wife brought a petition for divorce saying that the husband was
guilty of desertion and cruelty. The husband missed the deadline and wanted to extend
the time for filing his response to her pronouncements against him. The court rejected
saying that he missed the whole thing, they didn’t care about fault anymore, they just
want to make sure that the marriage had irretrievably broken down. [The husband did not
get a chance to clear his name.]
The continued period here is for 3 months as opposed to 6 as seen in Trinidad.
---------------------------------------------------------------------------------------------------------------------
Many argue against this regime on account that there is some kind of catharsis you get from
clearing your name. its freeing to be able to say what happened from your perspective.
Removing fault, as done in Minott works to shut the party up.
You have situations where husband and wife spend a lot of time together to save face as seen in
Marconey v Marconey where the court said that if you want to ‘keep up with the Jones’’ then
you haven’t separated. In this case, the couple travelled to Miami, New York, Canada, sexual
intercourse had taken place plus the wife worked in the husband’s restaurant on Christmas Eve
and even hosted friends from out of town.
Benjamin v Benjamin – says that suppose it was a shame wedding from the start. In this case, the
parties married so that the husband could migrate to the US. The ocurt said there was no
consortium to begin with so they granted the divorce.
---------------------------------------------------------------------------------------------------------------------

Bars to Divorce

FAULT MODEL
[ even if the respondent is guilty of any matrimonial faults if the petitioner has connived,
condoned or colluded in the commission of the offence then the petitioner will be barred
from obtaining a divorce]
 Absolute bars
 Connivance – usually in the commission of adultery by contributing or promote
the act by your actions. Either expressly or by acquiescence [contributing].
Rumbelow v Rumbelow – where the husband knew that his wife was
unfaithful to him. At first, he wasn’t but became so aware that the man with
whom the wife was unfaithful moved into the house. He moved into the
matrimonial room and the husband relocated to another. She even had two
children with the man. When he eventually petitioned on the grounds of adultery,
he could not get it as it was held that he connived with his wife by his actions.
Gorst v Gorst – wife loved her husband but he was unfaithful. She tried
her best to get him to be faithful and in a fit of emotion she wrote a letter basically
 saying that he should continue with the other woman but should share their son
(the husband and Sylvia) with her. she subsequently applied on the grounds of
adultery and he argued that she was barred citing the letter. The court said that
that wasn’t a letter that expressly encouraged because when you read behind the
subtext of that letter, she was actually begging him to stop. The conduct must
show willing consent

 Condonation – deals with forgiveness and reinstatement. you have to be

completely sure that a fault was committed.
Burch v Burch – the husband was overseas and the wife gave birth to a child, he
accepted the child as his own on his return and resumed cohabitation. While he
was there, he realized that he had a suspicion but she was unfaithful. He applied
for divorce on the grounds of adultery. She objected stating that he was barred on
condonation but the court held that he couldn’t condone unless he was completely
sure.
Herridge v Herridge – provided hope that the court would use some sense where
the person had tried to resume cohabitation to see if the cruelty would stop, that
wasn’t condonation but an attempt at reconciliation.
---------------------------------------------------------------------------------------------------------------------
Moses v Moses
A Caribbean case that shows how its so impractical to try and assess that a marriage has broken
down based on who committed what. In this case, both parties had been unfaithful. The husband
had migrated and was supposed to send for the wife. She didn’t want to leave because of her son
and so she found herself back home and lacking in resources. She hooked up with a friend that
helped her. he applied on the basis of her adultery but she said her was barred and she applied on
the basis of his adultery. The court found that she was dishonest and immoral, she should have
gone up and stayed with him. They found that she condoned in forgiving him of his adultery.
Therefore, she wasn’t entitled to the divorce, he was.
---------------------------------------------------------------------------------------------------------------------
 Collusion – where the petitioner encouraged the action or sought to pursue the
divorce by corrupt agreement. [for instance, your wife has committed adultery
and you seek to extort the co-respondent or your wife so to save embarrassment
you extort in exchange for not seeking a divorce.]
Noble v Noble – the initiation of the divorce suit was made on corruption
between the petitioner and the co-respondent. The husband got the co-respondent
to give him a statement so that he could meet the burden of proof. The co-
respondent gave him the statement. The wife said he was barred on collusion and
the court said that this was not collusion. Collusion is a corrupt thing and he
didn’t pay money for the statement.
 Churchman v Churchman the husband offered the co-respondent money to
give him a statement and he didn’t give the statement. He then applied and got the
divorce. His wife raised this and the court said it was close to collusion but not
quite because no money was accepted.

 Discretionary bars: where the petitioner has committed any of the faults
him/herself.

 No petition before three years of marriage unless exceptional hardship or

exceptional depravity by the respondent to the petitioner has occurred.
Bowman v Bowman – this case gives legal guidance on what is exceptional
hardship and depravity. [check case for details]

MIXED FAULT
 Absolute Bars [Mixed Fault]
 Sec. 8 has the bars for all of the facts. This is the attempt in this act is that as an
attorney if a petitioner comes to you for a divorce, you have to file a document
certifying that you have inquired of your client for whether there is a possibility of
divorce whether reconciliation has been suggested. You must also give the names
and contact information for individuals that can facilitate the reconciliation.
 Subsection 12 A – if during the proceedings the court thinks that there is a
reasonable possibility of reconciliation, they should adjourn the proceedings and
send them for counselling.
In Biggs v Biggs – the court asserted that absolute meant that the court had no
discretion. Meaning where the period exceeds 6 months the court will have no
discretion in whether it ought to bar or not. [Now with this ground, if the six
months is broken up into little pockets of time, then it’s the same.]

 Discretionary Bar
 Applies to behavior [the respondent behaved in such a way that it would be
unreasonable for the petitioner to keep living with them] desertion and separation
grounds [TTMPA s. 8].
 If you resume living together for 6 months of more then they will decide whether
to allow for a grant of the divorce based on behavior. [discretionary]
 S. 11 – financial hardship could operate as a bar [see info above].
 Provides for reconciliation as it allows the resumption of living for up to six
months

 Time Bar
 S. 5 – you can’t apply for divorce until one-year time unless there was exceptional
hardship/ exceptional depravation of the respondent.
This is why Bowman v Bowman is useful because the same law on what is
exceptional hardship and depravity applies here.
What we are not seeing is any fault bars
Fay v Fay – says that in working out this exceptional hardship and depravity the
courts look at this as a statement of law governed by the standards of acceptable
behavior between spouses as in what is generally done between partners.

NO FAULT
 Restrictions
 Restriction where there is a chance of reconciliation as seen in In the Marriage of
Bates – where a husband was able to show that a lot of his wife’s negative views
of him was because of her talking to friends. The court was convinced that she
didn’t really have such negative views of him and should she disassociate with
her friends who indulge in talking badly about him then there would probably be a
chance at reconciliation.
 The court will not allow a divorce unless the parties set very clear provisions for
what is to happen to the children.
Sebastian v Sebastian – a Jamaican case where basically the parties where in the
stage of a decree nisi [you will have to wait for a decree absolute after this for the
divorce to be official making it a mere shell in that waiting period]. The husband
went to court for the decree absolute and the wife took the child and went abroad.
The husband had no idea making him unable to answer the court on what was
going on with the child. The court said no, he would have to come and show all of Which is fault-
the arrangements for the child. They (the court) want him to be extremely explicit
and clear about what the arrangements for the children were and if this wasn’t
possible then the divorce wouldn’t be granted.
 Time bar
Here the requirement has changed from exceptional hardship and depravity to
special circumstances that would justify the hearing. The following cases where
no special enough:
Nurse v Nurse – the wife wanted a divorce and she said that she needed it done
now because she planned to migrate and if she didn’t do it before she left, she
would have to come back which would’ve been difficult for her. the court said no,
this was not the special circumstances that they envisioned.
Donaldson v Donaldson – 43:00 (She was speaking to fast, steups.)

Comparing the Regimes

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