Defining common-law spouses

Dear Mrs Macaulay,

Would two people living together for more than five years, but are not sexually involved or have traditional marital relations, be classified as common-law spouses? They have not been a couple for numerous years and essentially live separate lives, and only share business interests and an adult child. I am hazy on the definition of ‘living together as man and wife’. I would like to know if this involves the need for sexual relations, or is it merely living at the same property.

I am very grateful for your letter and the questions you have posed in it. I believe your letter will help to clarify a great deal of confusion and misconceptions about the legal requirements two persons residing together in the same premises must meet in order to qualify as common-law spouses.

There are a number of legal requirements for a couple to be classified as common-law spouses. It is not a simplistic residential arrangement, but it is of some complexity. Let us then go through the relevant definitions, so that the whole can be ascertained.

As you may know, the concept of common-law spouses is only recognised in very few Acts of Parliament and for the purposes of this column, I shall use the definitions in the Property (Rights of Spouses) Act, 2004. In the interpretation section, “spouse” is defined as including, “(a) A single woman who has cohabited with a single man as if she were in law his wife for a period of not less than five years; (b) A single man who has cohabited with a single woman as if he were in law her husband for a period of not less than five years, immediately preceding the institution of proceedings under this Act or the termination of cohabitation, as the case may be”.

The terms “single woman” and “single man” as used in the definition of “spouse” in the Act are stated to include widow, widower, or divorcée.

Now, you will have noted that the provision makes it quite clear that in order to be included in the term “spouse”, both parties cohabiting must be single, that is, unmarried or widowed or divorced. The intent of this was to make the concept of common-law spouses, though not the same, as close to “married spouses” as possible without making them equal, and because it was necessary to ensure that common-law spouses could enjoy certain rights which they hitherto did not have in law.

You would also have noted the use of the words “cohabited with… as if she were in law his wife”, words which I believe clearly denote not only a sexual relationship, but would also share a life, to use your words “of traditional marital relations”, which includes a unity of life together, a joint union of two persons, not separate lives.

Now we come to the word “cohabit”. This is defined in the Interpretation section of the Act as “to live together in a conjugal relationship outside of marriage and that “cohabitation” should be construed according to the definition of the verb. What of “conjugal”, what does this mean? The Concise Oxford Dictionary defines “conjugal” as of marriage or the relation between husband and wife, and conjugal rights as those rights (especially to sexual relations) regarded as exercisable in law by each partner in a marriage”.

There we have it, the sum total of all these definitions denote the fact that in order to be classified as a common-law spouse, the single woman must cohabit with the single man, that is to say live together in a conjugal/sexual relationship as if you were in law husband and wife, which brings in to play all or most the facets which husbands and wives have and engage in jointly in their lives together.

I believe that your final enquiry has been answered and clearly so. Definitely living in the same property while living separate lives with just a shared business and an adult child between the two persons is not enough for them to be common-law spouses, regardless of how many years they have been residing in the same premises in this manner.

I hope I have assisted you to no longer be hazy about the meaning of the status of common-law spouses and what this entails in fact and in law.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.