Legally speaking: Marriage vs common-law
MUCH talk has been in the media in recent times, about marriage versus common-law, and where the entitlements end in law. Is there much to marriage except a piece of paper? How much power does marriage give to a woman or man, when it comes to property distribution and certain rights, for example, the right to choose health care, to be the next of kin, and to act as “spouse” in all one’s partner’s affairs?
Gender professional Carlissa Farquharson breaks down the nuances according to Jamaican law.
Firstly, while both legal marriage and court-recognised common-law partnerships carry weight, they are not equal in all respects. Marriage confers automatic, comprehensive, undeniable rights, including in inheritance and automatic spousal status. Common-law relationships do not.
It is only with Acts like The Property (Rights of Spouses) Act and the Maintenance Act, and in areas like with the administration of estates, where the gap has been narrowed significantly, extending rights to common-law couples who meet specific criteria. This allows them the right to a share in the family home, for example, and the right to apply for maintenance after a separation.
The Acts define a spouse in law as being “a single woman who has cohabited with a single man as if she were in law his wife for a period of not less that five years…”, and vice versa. Single includes a widow, widower or divorcée, and they must have lived as if they were a married couple. Visiting relationships do not count. Separated married partners do not qualify. And a legal declaration must be obtained from the court, that the spouse was in fact in a common-law relationship.
When it comes to making healthcare decisions for a sick partner, or being recognised as next of kin, for example, the legal landscape gets even wider. The next of kin is defined as a married partner or closest living blood relative. For decision making in health, married spouses are default next-of-kin, owing to their legally recognised relationship. Common-law partnerships do not automatically qualify, or have the authority to make critical health decisions.
A common-law partner must petition the Supreme Court to be legally recognised as a “spouse” before they can even inherit or be treated as a spouse in legal contexts. Without such recognition, their authority is not guaranteed.
In real-world settings, the hierarchy would be spouse by legal marriage, children, or parents for decision making and visitation privileges. Without being legally recognised, common-law partners might be bypassed in favour of blood relatives, even over a long-term partner whom the patient would prefer.
