Paternal Rights and the UOM in Barbados

 

This week I tackle the contentious issues of custody, access, maintenance and property within the Union other than a Marriage “UOM” relationship.

Edith Clarke My Mother who Fathered Me University Press of the West Indies 1999 defined a (UOM) as "the conjugal union or cohabitation of a man and woman without legal and religious sanction." The Caribbean generally and Barbados specifically has moved to give legal impetus to the union by passing the Family Law Act Cap 214 or “FLA”. It means that rights accruing to both parties secure protection and determination by law pursuant to Section 39 Family Law Act Cap 214, which provides that

“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 five years or more and have so cohabited within the year immediately preceding the institution of proceedings.”

It is on this basis that a father could seek the protection of the court in an effort to vindicate his rights to custody, access, maintenance and property. I will now address each of the areas with reference to paternal rights.

Custody

The question that presents the most unpalatable response for the woman is his rights to the children as it pertains to custody.

Any rights to custody will be dependent on section 40 Family Law Act Cap 214, which provides that each party to a marriage or union should have joint custody to each child. This is however subject to an order of the court relating to the welfare of the child at section 43 (1) (a) Family Law Act Cap 214 providing that

“In proceedings in respect of the guardianship or custody of, or access to, children of a marriage or union, the court shall regard the welfare of the children as the first and paramount consideration.”

In Walker v Walker and Harrison [1981] NZ Recent Law 257

“‘Welfare’ is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place, they are secondary matters. More important are the stability and the security, the loving understanding, care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents.”

The definition expresses the material and emotional configuration considered ideal for the proper growth and development of the child. This however does not occur without the guidance from the parent setting the important course followed. Lord MacDermott in J. v. C. [1970] AC 688 at 710 described the paramountcy principle as

“…a process whereby, when all the relevant facts, relationships, claims and wishes of the parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term is now to be understood."

What is important given the language is a parent who in the entire circumstances exhibit the decision making to put the child first that means putting the welfare of the child ahead of any selfish short-term gains that seek to advance personal finances. The court is in a position to observe if the common law wife exhibit these traits by using the child to advance myopic financial rewards. Men ought to exert their rights to secure custody fully or jointly in keeping with the legislation. 

ACCESS

What are his rights as it pertains to access where custody is problematic for the father?

In Barbados a presumption to joint custody is established at section 40 (1) Family Law Act Cap 214 however at section 40 (2) Family Law Act Cap 214 that presumption is rebutted by an order of the court and at section 40 (3) Family law Act Cap 214 the orders available include access. While custody connotes the care and control of the child, access according to Frances Burton Family Law Cavendish Publishing, 2003 connotes contact that is time specific and regulated. What has to be determined is how a parent assesses his access chances.

In Re E (A Minor) (Care Order: Contact) 1994 there is a presumption in favor of access. This confirmation came in Re O 1995 at pg 128 per Thomas Bingham MR “it is almost always in the best interest of the child that he or she should have contact with the other parent."

The burden of determining whether access termination arises rests on the local authority and it is a heavy burden. In Lucky v Ramrattan 2008 TT 2010 HC 179 Gibson J argued

“Even in cases of proved domestic violence the court cannot rule out the possibility of contact by the offending parent with their children, though the fact of it and the seriousness of it would be taken into account.”

What mothers tend to do as in re D (2004) E.W.H.C. 727 Fam 1 F.L.R. 1226 is use various strategies to frustrate the contact arrangements, which in that case resulted in court orders, penal notices and eventual imprisonment. In light of the case law, the father ought not give up or feel frustrated by the system when advocating for access.

 

MAINTENANCE

Women often use this factor as a means of personal finance seeking to determine his liabilities to the children as it pertains to maintenance.

Any liabilities to maintenance locate at section 51 Family Law Act CAP 214, which provides that

"The parties to a marriage, or union other than a marriage, are liable, according to their respective financial resources, to maintain the children of the marriage or of the union who are unmarried and have not attained the age of 18 years."

The liability is also at section 5 Maintenance Act CAP 216, which provides at

"In proceedings for the maintenance of a child, the court may make such orders as it thinks fit in accordance with this Act."

While the matters taken into consideration by the court at section 14 (2) of the Maintenance Act Cap 216 are useful the absence of clearly defined rules of court which are applicable to some jurisdictions see GW v RW (Minors) 2003 2 FLR 108 are absent in Barbados. The aforementioned forces the judicial officer to address, notwithstanding the guidance of the Act, the capacity of the party to contribute meaningfully based on financial standing.

In Andre Edwards v Superintendent of Prisons and the Attorney General 2018 a writ of habeus corpus filed in the High Court Barbados challenged the process by which a warrant to commit was issued. The facts are that Mr. Edwards fell into arrears on his payments based on a maintenance order of $60 per week dated April 2013. In February 2018, he was committed to prison for arrears of $5,610. Scott J ruled that the imprisonment for 42 days was wrong by the Magistrate for not paying child maintenance. The learned Justice suggested that

"Instead of automatic jailing, magistrates should examine whether the men were financially unable to pay or were just willfully refusing to do so."   

This decision reflects in the position at section 14 (2) (i) Maintenance Act Cap 214 which provides:

“The matters to be taken into account for the purposes of this section are as follows:

(i) any fact or circumstance which, in the opinion of the magistrate, the justice of the case requires to be taken into account.”

This means that the father is liable for maintenance to the extent of his capacity to pay. The court consequently ought not to commit to prison a father who is unemployed, disabled or for whatever reason incapable of work after earnestly seeking employment. This argument is not available to the father who has the capacity but refuses willfully to adhere to an order of the Court.

Property

A common question asked by the woman is whether the father would be entitled to a share in the house.

Any share sought will be dependent on section 56 (1) Family Law Act Cap 214 declaring the interest in the property. These are wide powers  which were identified in the decision of Proverbs v Proverbs BB 2002 CA 19 where Simmons CJ articulated the proper approach based on the net property of the parties, contributions to acquisition section 57 (3) Family Law Act Cap 214 and section 53 (2) Family Law Act Cap 214 factors. The Act does not indicate the weight attributed to each Shorey v Shorey 1987 (No 49 of 1984) but section 57 (2) Family Law Act Cap 214 mandates the court not to make the order unless satisfied, in all the circumstances; it is just and equitable to so do. The court should be concerned with what is fair to the parties.

Sharma J. in Harrinarine v Aziz Civil Appeal 46 of 1987 succinctly captured the just and reasonable outcome

“In our society, the common law wife has a legitimate expectation, (and one that the common law husband is aware of) that in the circumstances such as this case she would have a beneficial interest in the property in which they live.”

The same legitimate expectation applies to the common law husband and if the common law wife knows that the man contributed to any deposit, purchase, payments, upkeep, maintenance then this activates a section 56 (1) Family Law Act Cap 214 declaration toward securing an interest in the family home. Some women argue that the property is in her name only but this does not exclude the man from a share based on Gissing v Gissing [1971] AC 886 acquiring a beneficial interest, which means the man, is entitled to a share of the house.

I hope this helps.