The Caribbean Court of Justice (CCJ) has delivered what is considered to be a landmark judgment in the case of Katrina Smith v Albert Anthony Selby  CCJ 13 (AJ).
The facts, in brief, are that Ms. Smith, the Appellant (KS), lived with the Respondent’s brother, Albert Michael Selby (AMS), in a common law relationship from April 2002 until the death of the latter in April 2008. The Appellant was unmarried for the duration while the deceased AMS had been married but separated from his wife for approximately the first two years of his relationship with the Appellant. AMS was officially divorced in April 2004.
AMS had no children and both his parents had died before him. KS and the Respondent both applied to the Supreme Court for a grant of letters of administration to the estate of AMS, since he had died without leaving a will. KS applied as spouse and the Respondent as next of kin. The Respondent challenged the finding of the High Court judge that KS was the spouse of AMS and the Court of Appeal overturned the decision of the judge, hence the appeal by KS to the CCJ.
The crux of this case centres around sections 2(3)(a) and 49(2) of the Succession Act, Cap. 249 of the Laws of Barbados. Section 49 outlines the order of entitlement to benefit from the estate of a deceased person. Where there are no children and no living parents, then the spouse gets two-thirds of the estate and the remaining third is distributed amongst the brothers and/or sisters of the deceased. If KS is spouse, then she gets two thirds of the estate; if she is not, she gets absolutely nothing.
Section 2(3)(a) defines “spouse” as including “(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;” and “(b) a single man who was living together with a single woman as her husband for a period of not less than five years immediately preceding the date of her death.” This should be fairly simple, except that it wasn’t, in light of AMS’s change in marital status during the relationship with KS.
In another article, we had outlined the basic rules of statutory interpretation. There are three rules: (1) the literal rule (2) the golden rule and; (3) the mischief rule. The literal rule is exactly what it sounds like. The court will apply the plain and ordinary meaning of the words used.
The golden rule or purposive interpretation is only applied where the literal rule would give an absurd result which could not possibly be the intention of Parliament and the court then applies a reasonable meaning to the section in the context of the whole statute (Adler v George (1964) Q.B.).
The mischief rule was developed in Heydon’s Case as far back as the 16th Century. It requires the court to look at what the law was before the Act was passed; what problem Parliament was trying to fix; and what remedy it was using to try to fix it. Bear these rules in mind when we get to our examination of the CCJ’s reasoning.
The High Court judge thought that the mischief that the change in legislation was to have cured, was the disinheritance of a common law spouse on intestacy (no will) and therefore ruled that a single man included a man that was separated but not divorced. The Court of Appeal, while agreeing with the rule of statutory interpretation that was used by the judge, concluded that he had stretched the ordinary and natural meaning” of the word “single” to achieve his ends.
The judge thought that the point in time for deciding whether someone was single was the date of death, while the Court of Appeal thought that the individual should have been single for the duration of the common law relationship.
Enter the CCJ with a conclusion that both approaches should be used to get the “right balance” in assessing what Parliament had intended when passing its laws. In quoting from English cases, they concluded that “the principles which the judges must apply include respect for the language of Parliament, the context of the legislation, the primacy of the obligation to give effect to the intention of Parliament, coupled with the restraint to avoid imposing changes to conform with the judge’s view of what is just and expedient.”
The Act must be examined as a whole and not just the specific provision under consideration and the court must use “all available material to discover and give effect to the intention of Parliament.” While pointing out that the historical context of the legislation had not been put before the court by either side, the lower courts were agreed on at least one thing, that the purpose of the legislation was to address the “realities of Caribbean society” and the informal relationships which were not addressed by the English common law or statute.
Prior to the passage of the Succession Act in 1975, the common law spouse automatically became a legal pariah from the moment their partner drew the last breath and passed to the hereafter. A thirty-year relationship which produced five children and two houses became the equivalent of a puff of smoke. Relatives and separated spouses could move in for the kill and divide the fatted calf amongst themselves.
Forty-two years later, the winds of change have blown through the succession landscape in Barbados like any of the three storms we have had in recent weeks. We will examine the “damage” in the next instalment.