Changes in family law ...

Published: Monday | December 16, 2013 Comments 0

 Some very interesting stories have emerged within the past week in the area of family law, and I would like to highlight a few of them.

The first relates to an Atlanta, Georgia, couple who ended up in court over issues related to a broken engagement. The couple had lived together for more than 10 years, had one biological child together, and had plans to marry before the intended husband declared that he had found someone else and that both mother and child should leave his house.

As there was no statute recognising common-law unions, the intended wife had to make a claim to recover damages for breach of promise to marry. The lower court awarded $50,000 to the claimant and that award was upheld by the Courts of Appeal.

In Jamaica, cohabiting couples who form a common-law union have the same rights and obligations as married couples, so the claimant in that case would have had the right to claim damages for breach of promise to marry as well as remedies available under the Property (Rights of Spouses) and Maintenance Acts.

Same-sex marriage

Three Commonwealth countries - India, England and Australia - recently made changes in respect of same-sex marriages.

In India, a 2009 judgement had paved the way for same-sex marriages. On November 11, 2013, the Supreme Court ruled that the legitimacy of same sex-marriages is a matter for the legislature and not the courts. In other words, as buggery remains a crime punishable by a term of imprisonment of up to 10 years in India, until homosexual sex is decriminalised, a lawful marriage can only exist between a man and a woman.

Similarly in Australia, a number of same-sex couples recently got married in reliance on a court ruling in the Australian Capital Territory. Five days later, the Australian High Court ruled that the legitimisation of same-sex marriage cannot be determined by the court or by a single territory. It is a matter of national law and a question that must be dealt with by the Australian parliament. Further, the decision of the lower court was contrary to federal law.

In England, the Civil Partnerships Act 2005, legitimised the cohabitation of same-sex couples, and made provisions for them to enjoy the same rights as their married counterparts. In July, 2013, the Marriage (Same Sex Couples) Act received parliamentary approval and, on December 11, 2013, it was announced that same-sex couples will be able to marry in reliance on that statute as from April 29, 2014.

In both India and Australia, gay rights activists have viewed the decisions in the courts as being a temporary setback and have vowed to continue their lobby efforts for parliament to change the laws. The stance of the Jamaican Parliament is well-known, but it will be interesting to see how changes in other parts of the world fuel the lobby efforts in this country.

Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to or on twitter @lawsofeve.

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