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KINCH v. CLARKE ET AL

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Citation # BB 1986 HC 17
Country Barbados
Court High Court (Civil Jurisdiction)
Judge Williams, J.
Subject Administration of Estates
Date February 28, 1986
Suit No. No. 942 of 1983
Subsubject Succession - Barbados Succession Act - De facto spouse - Whether plaintiff who
had lived with deceased less than five years was entitled to succeed to his estate
on intestacy.
Full Text
Mr. R. L. M. Clarke for the plaintiff.
Mr. M. L. Atwell and Miss M. A. Haynes for the defendants.

WILLIAMS, J.: The first defendant, Ann Rosemary Clarke, executrix of the Will of
Alfred Seymond Clarke, deceased, and the second defendant, Osyth Eileen Clarke,
former wife of the deceased, applied on October 17, 1985 for the following orders:-

1. An Order that the Writ and Claim endorsed thereon and filed herein on the 9th day
of March, 1983 and the Statement of Claim filed on the 11th day of June, 1985, by
the plaintiff, Yvonne Rosetta Kinch, be struck out and dismissed on the ground that
the said Writ and the Claim endorsed thereon and the said Statement of Claim
disclose no reasonable cause of action.

2. An Order that the plaintiff do pay the costs hereof of both defendants and that the
same be taxed or agreed, and further that the said costs be paid before any further
proceedings are brought by the plaintiff in respect of the estate of the deceased,
Alfred Seymond Clarke.

The claim on the writ is as follows: (end of page 1)

"The Plaintiff claims a declaration under a "Union other than a Marriage" that she is
entitled to one half share of the estate of the late Alfred Seymond Clarke, the said
plaintiff having lived in "union" with the said Alfred Seymond Clarke (deceased) from
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the year 1967 until his death on the 27th day of August, 1982."

The statement of claim filed on June 11, 1985 is in the following terms:-

1. The plaintiff resides at St. Christopher in the parish of Christ Church in this Island.

2. The defendant is the Executrix of the late Alfred Seymond Clarke and resides at
Silver Sands in the parish of Christ Church in this Island.

3. On or about the year 1967 the plaintiff entered into a "Union" with the late Alfred
Seymond Clarke as man and wife and continued this "Union" until the death of the
said Alfred Seymond Clarke on the 27th day of August, 1982.

4. During the said period 1967 to 27th August, 1982 the plaintiff carried out all the
duties of a wife with the said Alfred Seymond Clarke deceased.

5. From September, 1978 the plaintiff and the late Alfred Seymond Clarke lived
together at St. Christopher in the parish of Christ Church until the 27th day of August
1982. Since the death of the late Alfred Seymond Clarke the plaintiff continues to live
at the said St. Christopher in the parish of Christ Church.

6. The plaintiff claims that she is entitled to a division and share of the properties
owned by the late Alfred Seymond Clarke under the Family Law Act, 1981 - 29."

Before proceeding further it must be mentioned that on April 30, 1985 on the
application of Osyth Eileen Clarke, with the consent of the plaintiff and the
defendant, it was ordered that Osyth Eileen Clarke be joined in the action as a
defendant and she was given leave to file a defence. For the purpose of the
application I will assume the truth of the facts pleaded in the statement of claim, that
is, that Alfred Seymond Clarke and the plaintiff lived from about 1967 to 1982 as
man and wife, the plaintiff carrying out all the duties of a wife and the couple living
together at St. Christopher, Christ Church from September, 1978 until Clarke's
death on August 27, 1982. The question is whether these facts entitle the plaintiff to
a division and share of Clarke's properties under the Family Law Act, 1981 - 29.

Section 56 of the Act enacts that in proceedings between the parties to a marriage
or union in respect of the existing title or rights to property, the Court may declare the
title or rights, if any, that a (end of page 2) party has in respect of the property. This
section enables the Court to a declaration as to the title or rights which a party has
in respect of property where (a) the proceedings are between the parties to a
marriage of union and (b) the proceedings are in respect of the existing title or rights
to property. In the present case the proceedings are not proceedings between the
parties to a marriage or union, Alfred Seymond Clarke having died in 1982.
Moreover they are not proceedings in respect of the existing title or rights to property.
The plaintiff is claiming a division and share of properties which Clarke had owned.

Section 57 (1) enacts that in proceedings in respect of the property of the parties to a
marriage or union or of either of them, the Court may make such order as it thinks fit
altering the interests of the parties in the property. Subsection (2) enacts that the
Court shall not make an order under the section unless it is satisfied that, in all the
circumstances, it is just and equitable to make the order. Subsection (3) requires
the Court to take into account certain specified matters in considering what order
should be made under the section.

"Union" is defined to mean the relationship that is established when a man and a
woman who not being married to each other, have cohabited continuously for a
period of 5 years or more and have so cohabited within the year immediately
preceding the institution of the proceedings.

Here Alfred Seymond Clarke died on August 27, 1982. The writ was filed on
September 9, 1983. The plaintiff having ceased to cohabit with Clarke on August 27,
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1982 it follows that there was no cohabitation between the plaintiff and Clarke within
the year immediately preceding the institution of the proceedings.

Moreover, section 57 has effect in proceedings in respect of the property of the

parties to a marriage or union or either of them. When Clarke died on August 27,
1982 his real and personal estate devolved and became vested in his personal
representative pursuant to section 3 (1) of the Succession Act 249, which
expression is defined in section 2 (1) of the said Act to mean the executor or
administrator for the time being of a deceased person, or the Public Trustee under
section 6 of the Act. Under section 3 (2) of the Succession Act the personal
representatives for the time being of a deceased person shall be the
representatives of the deceased in regard to his real and personal estate, and shall
hold the estate as trustees for (end of page 3) the persons by law entitled thereto.
The later provisions of the Succession Act determine the persons entitled to the
estate.

In my opinion, Clarke having died and his estate on his death becoming vested on
his death in his executor in trust for the persons by law entitled thereto, it cannot be
said that the proceedings which the plaintiff instituted were proceedings in respect
of the property of the parties to a union within section 57 (1) of the Family Law Act. In
this respect it should be observed that it does not appear that the plaintiff is within
the definition of "spouse" in the Succession Act. Subsection (3) of section 2 enacts
that for the purposes of the Act, reference to a "spouse" includes single woman who
was living together with a single man as his wife for a period of not less than five
years immediately preceding the date of his death. Subsection (4) enacts that, for
the purposes of subsection (3) a reference to a single woman or a single man
includes a reference to a widow or widower or to a woman or man who is divorced.
It appears that Alfred Seymond Clarke was not divorced from the second defendant
Osyth Clarke until September 5, 1978. It follows that up to that date the plaintiff was
living not with a single man but with a married man and, Alfred Seymond Clarke
having died in August 1982, the plaintiff could not qualify as a spouse under the
Succession Act because she had not been living together with a single man as his
wife for a period of not less than five years immediately preceding the date of his
death.

There is yet another matter to be considered. The plaintiff claims to be entitled to a

division and share of Clarke's property by virtue of having lived with him for 15 years.
Section 57 gives no such entitlement. It enables the Court to alter the interests of the
parties in property belonging to them or either of them.

In the light of the above considerations the writ and the statement should be struck
out as disclosing no reasonable cause of action. Costs to the defendants to be
taxed or agreed.

Puisne Judge

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