All should be made equal under the law
Jamaican law defines marriage or common law unions as cohabitation between a single man and a single woman.

Dear Editor,

Recently, the laws around family have begun treating men and women as equals as they both have rights to property, to be maintained in certain circumstances, to apply for custody, and to apply for protection from domestic violence.

In most instances marriage is not a requirement for these benefits. However, the various pieces of family law require that the relationship either involves biological relatives, legal guardianship, or heterosexual relationships. These laws make things complicated for LGBT people in same-sex relationships since they are not recognised and so have to work out these issues outside of court.

Laws such as the Property (Rights of Spouses) Act and the Maintenance Act both use a common law definition of spouse, that is, 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 and vice versa. The Domestic Violence Act has a similar definition; however, it does not have a time requirement and also recognises “visiting relationships” where couples do not cohabitate.

These laws in their current form breach the right to equality because of their non-recognition of same-sex couples; however, they cannot be challenged constitutionally due to section 18(1) of the Jamaica Constitution, which only states, “No form of marriage or other relationship…other than the voluntary union of one man and one woman may be contracted or legally recognised in Jamaica.” This section of the constitution is considered a limitation on rights, specifically the right to equality.

While it is easy to conclude that section 18(2) of the constitution represents a bar on ordinary law-making, one interpretation suggests that it does not prevent Parliament from amending legislation to recognise same-sex couples as if this were the case, giving a broad interpretation to a limitation clause rather than a narrow one.

The aim of section 18(2) is to preserve the laws protected under section 18(1) and prevent the creation of same-sex and/or polygamous unions in other jurisdictions from being given legal effect in Jamaica by use of the rights guaranteed in the Charter of Fundamental Rights and Freedoms. Bearing this in mind, Parliament is free to amend laws which confer rights on unmarried couples to include LGBT couples.

Nickoy Wilson

Policy and advocacy manager

Equality For All Foundation

nickoy@equalityjamica.org

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