Protecting the family: ‘That’s how it is, under the law!’

FAMILY LAW points to the body of law regulating family relationships, including marriage and divorce, the treatment of children, and other related economic matters. The family must be protected as it is referred to as the cornerstone of society. It is, therefore, obvious that the laws relating to family are an important means of fostering and protecting our society, and are also crucial in assisting people in navigating those difficult times when family relationships, unfortunately, break down.

ISSUES/PROBLEMS REQUIRING SPECIFIC LAWS IN THE FAMILY DISCRIMINATION AGAINST CHILDREN BORN OUTSIDE OF WEDLOCK

An observable reality of Caribbean society is that many children are born outside of wedlock. With this evident in our society, countries in the region have established laws to end discrimination against these children. Several countries now have a Status of Children Act, which gives children born to unmarried couples the same rights as those born to married couples.

CARE AND PROTECTION OF OUR CHILDREN

Jamaica passed – in 2003 – the Child Care and Protection Act. The act provides definitions of child abuse and neglect, procedures for responding to allegations, and judicial remedies. The act mandates that the child’s views be taken into account when the child is of sufficient age and maturity to form his or her own views. The act creates the position of children’s advocate, who serve as the legal representative to a child if it appears to the court that the child is in need of representation, and if the child consents to the representation.

a. State TWO other ways in which our children are cared for and protected in your country.

b. Suggest TWO reasons why laws are needed/necessary for the protection of our children.

MARRIAGE AND DIVORCE

Marriage is governed by the Marriage Act and the legal dissolution of a marriage falls under the Matrimonial Causes Act, which was passed in 1989. Petitions for the dissolution of marriage fall within the jurisdiction and power of the Supreme Court of Judicature of Jamaica.

Either spouse can petition the court for a decree nisi (order for divorce) and later a decree absolute (final order of divorce) on the grounds that the marriage has broken down irretrievably. The court must be satisfied with the following before it grants the decree:

1. That the parties separated and have since lived apart for a continuous period of TWELVE MONTHS immediately preceding the date of the filing of the petition.

2. There is no reasonable likelihood of cohabitation being resumed. For instance, interventions were made and counselling was tried, but to no avail.

SEPARATION

To prove separation, it must be shown that cohabitation was terminated as a result of an act or because of the conduct of one of the parties. The petitioner must prove that he/she had been living separate from the other spouse, even if they continued to live in the same house.

NULLITY OF MARRIAGE

A petition for decree of nullity of marriage may be granted by the court on the grounds that the marriage is void on any of these grounds:

a. That one of the parties had a husband or wife still living at the time the marriage was contracted – bigamy.

b. That the marriage is void under the Marriage Act or any other Jamaican law relating to marriages which is in force.

The Marriage Act states that the following marriages are void:

1. When both parties knowingly and wilfully agree to their marriage ceremony being conducted by a person who is not a marriage officer or without two witnesses in addition to the marriage officer.

2. When it is between persons where one (or both) of them is under 16 years old.

3. If the parties are close blood relatives.

4. When the consent to the marriage of either party was not a valid consent.

Consent is not valid if:

■ It was obtained by duress or fraud.

■ One party was mentally incapable of understanding the nature and effect of the marriage ceremony at the time of the marriage.

■ When the parties to the marriage, at the time of the marriage, were of the same sex. Note that the recent same-sex marriages which were celebrated in some states of the United States are, in our law, void.

INHERITANCE

Laws regarding inheritance vary from country to country. When a person dies, with or without a will, his executor or administrator must first settle his/her liabilities from his assets before distribution of the residue can be made to his beneficiaries.

Examples of liabilities:

■ A loan secured by mortgage or charge over real property belonging to the deceased.

■ Proven debts of unsecured creditors.

■ Amounts owing for statutory deductions, income tax, property taxes, general consumption tax.

■ Probate, funeral and testamentary expenses.

■ Government duties such as transfer tax payable on taxable property owned by the deceased at the date of his death.

■ Stamp duty on probate or letters of administration from the court.

■ Legal costs for professional services of lawyer to obtain grant of probate or letters of administration.

SUCCESSION INTESTATE

Regarding the estate of a person who dies intestate (i.e., without making a valid will), the surviving spouse, which includes a common-law wife or common-law husband who lived and cohabited with the deceased for at least five years up to the date of death, is entitled to:

■ All personal belongings: Two-thirds of the residue if only one child survives, one-half of the residue if more than one child, or all of the residue if there are no surviving children, issue or parents.

■ The surviving children get all of the remaining estate if there is no spouse; or if the deceased leaves a surviving spouse, the children share the remaining estate equally after providing for the spouse. The surviving parent or parents will inherit the entire estate if the deceased is not survived by a spouse, children nor issue.