On Wednesday 7th October, 2015, former UWI Lecturer Mrs. Karen Nunez- Teshiera enlightened a large crowd at the WallBlake Conference Centre where she delivered the Inaugural Dame Dr. Bernice Lake QC Memorial Lecture entitled “The Family: An endangered ‘specie’ or an evolving social construct”? Mrs. Nunez-Tesheira is a noted author and family law expert who was, until July 2014, a Senior Lecturer at the Faculty of Law, Cave Hill Campus University of the West Indies where she lectured from 2010 on the family law of over ten West Indian jurisdictions.
The Lecture was organized by the Anguilla Bar Association as part of its 3rd Annual Law Week which was held from the 4th to 10th October, 2015 under the theme “Strengthening Our Families Through The Law”. Miss Yvette Wallace, the Immediate Past President of the Anguilla Bar Association, in delivering the Welcome Remarks noted that the Annual Lecture Series is intended to celebrate the life and work of Dame Dr. Bernice V. Lake QC, an accomplished lady who served as a diplomat, jurist, constitutional lawyer and distinguished Caribbean legal scholar. Most importantly, the Lecture Series also seeks to provide an open forum for the examination of pertinent legal issues which great impact the lives of persons in Anguilla with the hope of inspiring public and legislative interest in same.
Miss Jean M. Dyer, the President of the ABA in delivering brief remarks, noted that the lecture topic was selected because the ABA has documented, first-hand, the many legal challenges faced by evolved and evolving family structures in Anguilla as a result of outdated family laws. Miss Dyer also indicated that Mrs. Nunez-Tesheira was an extraordinary choice to inaugurate the ABA’s memorial lecture series since in her we have the essential elements for which the memorial lecture series was designed: widely respected, highly influential scholarship and a wealth of experience.
COMMON LAW SPOUSE
At the core of Mrs. Nunez-Tesheira’s lecture was her submission that the laws of Anguilla (and the various family law Bills presently under consideration) do not reflect the social reality here in Anguilla for the simple reason that the existing Laws do not recognize, and more importantly protect, what is now the norm rather than the exception: Common Law relationships. Mrs. Nunez-Tesheira began her presentation with a quotation from a former Attorney of Trinidad and Tobago who noted:-
“In Trinidad and Tobago and in many West Indian islands there has always been a large percentage of common law unions among persons from lower income groups. In the last three decades such unions have increased in noticeable proportions amongst persons in the middle income group”.
Mrs. Tesheira observed that the traditional concept of the “nuclear family” does not reflect the social reality in Commonwealth Caribbean jurisdictions such as Anguilla. She said that in Anguilla the non-marital union comprises the family unit for many and as such ought to be accorded legal status and legislative recognition in the laws of the land as do marriages. She then focused on the four main areas in which the non-marital spouse is most negatively affected, namely:-
(i) Property rights
(ii) Spousal Maintenance
(iii) Inheritance Entitlement on an Intestacy
(iv) Inheritance Rights on a Testacy (this area only applies to the married and common law spouse)
1. Property entitlement upon termination of the non-marital union
Mrs. Tesheira said that where the common law wife, is not the legal owner of the subject property (for example, the family home) in that the husband is the sole registered legal owner, the only recourse the common law spouse has is to apply to the High Court for a declaration of a common intention constructive trust. She cautioned that such a constructive trust is difficult to establish because non-financial contributions such as taking care of the children, creating a comfortable and happy family life and performing the household chores do not qualify. She also pointed out that such court proceedings are likely to be costly.
2. Spousal Maintenance
Mrs. Tesheira said that in Anguilla the common law spouse has absolutely no rights to maintenance whether during or upon termination of the relationship.
3. Inheritance on a Testacy
Mrs. Tesheira said that the common law spouse has no entitlement whatsoever to the estate of the deceased spouse who dies without making a valid will.
4. Inheritance on Death (Intestate)
Finally, Mrs. Tesheira noted that in Anguilla the married spouse and common law spouse are both entitled to Will their property to whomsoever they please even if that means leaving nothing for the surviving spouse.
The Way Forward
Mrs. Tesheira called on the Government to redress these shortcomings because “[t]he family is changing, not disappearing. We have to broaden our understanding of it, look for new metaphors”. She took us to model legislation in other jurisdictions such as Barbados, Jamaica and Trinidad and Tobago which had addressed the shortcomings in many different ways that suited their particular societies.
Mrs. Tesheira also noted that Anguilla is the only Commonwealth Caribbean jurisdiction which is yet to enact a Domestic Violence Act. She noted that the 2015 Bill, which is presently being considered here in Anguilla, goes further than the other Acts which had been enacted in the other Caribbean jurisdictions in that the definition of persons who are protected includes persons in a same sex relationship. She indicated that whilst this appeared to be a definition which was better suited for industrialized countries, it was ultimately a matter for the people of Anguilla to decide.
Mrs. Joyce Kentish-Egan QC, a Past President of the Anguilla Bar Association, delivered the closing remarks and praised the Anguilla Bar Association for this very timely lecture. She indicated that it was time for Anguilla to come into the 21st (if not the 22nd) Century by enacting laws which recognize its social realities, particularly with respect to the family structure. She accordingly called on our Chief Minister, the Honourable Victor Banks and our Leader of the Opposition, the Honourable Palmavon Webster (who were both present) to act speedily to ensure that the family law framework in Anguilla, and in particular the recognition of common law relationships, is on a proper footing. She suggested that this partnership could be coined the Nunez- Tesheira Collaborative Initiative.
(Published without editing by The Anguillian newspaper.)