- (a) a single woman who was living together with a single man as his wife for a period of not less than 5 years immediately preceding the date of his death;
- (b) a single man who was living together with a single woman as her husband for a period of not less than 5 years immediately preceding the date of her death.
The sole issue in this appeal is the determination of who constitutes a single person for the purposes of s. 2(3).
BackgroundThe brother of the appellant died intestate on 11 April 2008. He had no children and was predeceased by his parents. At the date of his death, he was cohabiting with but not married to the respondent. At the commencement of that cohabitation, the deceased was married to another woman. A decree nisi of that marriage granted on 29 March 2004 became absolute on 30 April 2004.
The appellant applied to the High Court for various orders pertaining to the administration of the deceased's estate.
THE HIGH COURT ACTIONAs a consequence of the admitted facts, the parties asked the High Court to determine (i) whether the respondent was capable of being regarded in law as the deceased's spouse for the purposes of Cap 249, given that the deceased was a married man during a part of the five year period immediately preceding the date of his death; and (ii) whether the respondent should be given a discretionary grant if held or found not to be the spouse of the deceased. This second question though not decided in favour of the respondent did not give rise to a source of significant contention and was in fact excluded from the details of the judge's order which was appealed.
In response to the first question, namely whether the respondent could rightly be regarded as the deceased's spouse, Alleyne, J. (Ag.) , as he then was, in an admirably detailed and provocative decision, undertook an examination of the principles of statutory interpretation. He also considered the mainly English case law and the rather limited West Indian authorities.
After briefly considering the social mischief that Cap 249 was intending to remedy — “inter alia to confer significant benefits on previously excluded categories of persons” — the judge laid the foundation for coming to the conclusion that since Cap 249 “serves a distinct social purpose”, he was inclined to the view that “its purpose is best served if it is given as literal and beneficial an interpretation as it allows linguistically” .
In contemplation of what he termed “the interpretational issues”, the judge pondered 3 questions.
The first was whether it was open to the court to construe the term “spouse” as defined in s. 2(3) of Cap 249 to cover categories of relationships other than marriages and those between “single” persons. Alleyne, J (Ag.) held that this section of Cap 249 is exhaustive of the meaning of the term “spouse” and must be taken to embrace married couples and single persons who otherwise satisfy the statutory criteria. He stated that the term “spouse” had already been extended to include “single” and that it is therefore not open to the court to enlarge the term further. He opined that that was a function for Parliament to perform.
The second, which ultimately formed the basis of this appeal and which was answered by the judge in the affirmative, was whether the term “single man” as it appears in s. 2(3) includes a married man who has separated from his wife and is cohabiting with a woman in a relationship of some degree of permanence.
The judge's support for his position came in part from the decisions in a number of English affiliation cases in which married women separated from their husbands were regarded as single women for the purpose of receiving benefits. Alleyne, J. (Ag.) considered the Jamaica case of Murray v. Neita No. 2006 HCV0176 ( Murray ) in which the Jamaican High Court had to determine an issue similar to that in the present case under similar legislation and came to a conclusion different from his. Alleyne, J. (Ag.) asserted at para 84 of his decision:
“However, the interpretation of a provision contained in a statute regulating succession rights in one jurisdiction need not accord with that of a similar provision in a statute regulating spousal property rights in another jurisdiction.”
Alleyne, J. (Ag.) was not persuaded that the effect of s. 2(4) — characterised as a removal of doubt provision — was to limit the categories of persons that may be considered as “single” for the purposes of the legislation. He posited that the word “includes” served to settle a doubt rather than add a meaning and therefore “it does not follow that the absence of a reference to married but separated persons in s. 2(4) manifests an intention by Parliament that such persons are not to be included within the term “single”. Thus, according to the judge, it is a matter for judicial interpretation since it is unclear whether in the context of Cap 249 married, but separated persons, should be regarded as single, that category of persons having been omitted from the clarifying nature of s. 2(4).
Consequently, Alleyne, J. (Ag.) declined to accept application of the maxim expressio unius est exclusio alterius to s. 2(4). In his view, the intent behind that subsection is to settle doubt or to provide certainty as to its application to the included items and not to exclude others.
The judge indicated that he had considered the statute as a whole particularly taking into account s. 102 which sets out the circumstances in which spouses are excluded from succession. He regarded that the presence of subsection 5 of s. 102 demonstrates that the legislation has taken cognisance of the social reality that some married persons who separate may choose not to get married but go on to establish new relationships of some permanence.
Alleyne, J. (Ag. 's) opinion can be summed up by reference to para 104 of his decision where he stated:
“I find it difficult to accept that parliament could have intended that such a man and the woman with whom he establishes his new relationship are to be excluded entirely from the statutory benefits conferred by the Succession Act. Clear language would be required to compel such a conclusion.”
The third question to which the judge gave consideration in his reflection of the interpretational issues was whether s. 2(3) requires that both or either party to the spousal relationship must have been single throughout the period of five years immediately preceding the date of death. From his perspective, that section of Cap 249 is capable of two interpretations. He was of the view that the term “single” is adjectival, merely descriptive of a quality which the parties to the relationship must have possessed at the point in time immediately before the death of the deceased and not a state which must have endured for the five years period”. He concluded that it is sufficient that both parties are single at the date of death.
GROUNDS OF APPEALThese as set out in the Notice of Appeal filed on 28 October 2010 are as follows:
- “(a) That the learned trial judge (Ag.) erred as a matter of law when he held that the definition of “single man” as it appears in section 2(3) and section 2(4) of the Succession Act, Cap. 249 includes a married man who has been separated from but is not divorced from his wife;
- (b) That the learned trial judge erred in law and/or misdirected himself and/or failed to apply the definition of “single man” as defined by the Succession. Act when he held that the fact that the deceased was a married man during a part of the cohabitation with the defendant and was not divorced for a period of 5 years immediately preceding his death does not exclude the defendant from being regarded as the “spouse” of the deceased within the meaning of the word as defined in section 2(3) and 2(4) of the Succession Act;
- (c) That the learned trial judge erred in law and misdirected himself when he held that the word “single” which qualifies the term “man” and “woman” is merely descriptive of a quality which the parties to the relationship must have possessed at the point in time immediately before the death of the deceased and is not a state which must have endured for the five year period.”
Mrs. Beverley Walrond QC, counsel for the appellant, addressed grounds 1 and 2 together.
Counsel commenced her oral and written arguments by stating that the appellant was placing reliance on the plain language of s. .
