High Court

Barbados

No. 93 of 1982

Hutson
and
Poleon
July 7, 1986

Williams, J.

Family law - Union other than marriage — Meaning — Time at which application for property division should be filed.

Appearances:

Miss V. Blenman of Messrs. Smith & Smith for the applicant

Mr. L.P. Kisson for the respondent

Williams, J.

1.

In this case Dorothy Hutson applies under the Family Law Act, 1981 No. 29 for a declaration that the dwelling-house at Seale's Avenue, Goodland,

St. Michael in which she and the respondent Julius Poleon now both have their homes, is owned by her absolutely.

2.

When the matter came on for hearing the 10th Mr. Kisson took two preliminary points. He submits that the court has no jurisdiction to hear the

matter under the Family Law Act because the parties are not married nor were they parties to a union other than marriage. His further submission is,

that if they were parties to a union other than marriage, the proceedings should have been instituted during the year immediately following the year

in which they last cohabited. The applicant seeks her declaration under section 56 (1) of the Act which provides 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 party has in

respect of the property.

3.

By virtue of section 2 (1) of the Act “union other than a marriage” or “union” has the meaning given to that expression for the purposes of Part V of

the Act.

4.

In Part V “union other than marriage” or “union” means 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.”

5.

It appears from the respondent's affidavit that the respondent was married to another woman when he was cohabiting with the applicant. Mr.

Kisson's first point is that it is not within the contemplation of the Act that “man” in the definition of “union other than marriage” and “union”

includes a married man. His submission is that “man” in the definition means single man.

6.

In support of his argument he refers to section 22 (a) of the Act which enjoins the court, in the exercise of its jurisdiction under the Act or any other

enactment, to have regard to the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all
others voluntarily entered into for life. How, he asks, can the court, consistently with this precept, hold that a man married to one woman has the

capacity to form a union other than marriage with another woman? This, he submits, is acknowledging and condoning polygamy.

7.

Miss Blenman for the applicant quite rightly points out that the words in the definition “not being married to each other” indicate that it is the

intention of Parliament that the definition could apply to cases in which a married man cohabits with a single woman just as it could apply to cases

in which a married woman cohabits with a single man or even to cases in which two married persons, not being married to each other, cohabit.

8.

In my judgment Mr. Kisson's first submission must be rejected. I think that section 4 of the Act indicates the policy behind the Act. The institution

of marriage is to be preserved and protected but the realities are recognised and provided for. The section is:–

“4. For the purpose of proceedings under this Act, a union in the nature of a marriage that, is, or has at any time been, polygamous, being a union

entered into in a place outside Barbados, is deemed to be a marriage.”

9.

Mr. Kisson's second submission is based on the respondent's affidavit which is to the effect that on the 9th of October, 1980 the respondent was

given 24 hours notice to leave the house where he cohabited with the applicant. This, it is submitted, brought cohabitation to an end and the

applicant, if she was relying on the definition of “union other than marriage”, should have instituted proceedings within the year immediately

following the 9th of October, 1980. These proceedings were in fact filed on the 20th of May, 1982.

10.

The applicant's affidavit does not deal with this question at all and I think the proper course is to give the applicant leave to file a supplementary

affidavit, if she wishes.

11.

Dated February 16th 1983.