Shepherd v Taylor

• Jurisdiction: Barbados
• Judge: Williams, C.J.
• Judgment Date: 10 June 1987
• Neutral Citation: BB 1987 HC 35
• Docket Number: No. 346 of 1986
• Court: High Court (Barbados)
• Date: 10 June 1987

High Court

Williams, C.J.

No. 346 of 1986

Shepherd

and

Taylor

Mr. David Simmons, Q.C. in association with Miss M. Greene for the applicant.

Mr. J. Hanschell for the respondent.

Family law - Unmarried couple — Whether “union other marriage” existed within the meaning of the Family Law Act, Cap. 214, ss. 56 and 57.

Williams, C.J.

1 In the Family Law Act, Chapter 214 “union other than marriage” or “union” is defined to mean the relationship that is established when a man and a woman who, not being married to each other, have cohabited continuously for a period of 5 years or more and have so cohabited within the year immediately preceding the institution of the proceedings.

2 Joyce Shepherd's application under sections 56 and 57 of the Act is based on cohabitation between her and the respondent, Hal Wesley Taylor, continuously from the month of October 1974 to September 1985. Her application having been filed on October 20, 1986, counsel for the respondent submitted that the application did not disclose a union within the meaning of the Act since there was no cohabitation within the year immediately preceding the institution of the proceedings.

3 The parties, she a clerk and he, a musician began to cohabit in 1974 and it is not in dispute that in August 1985 the respondent deliberately interfered with the plumbing and the electrical fittings at their “co-habitation” home and caused her to leave. In Shepherd's second affidavit she swears that, though she and the respondent were forced to live in separate places from August 1985, their relationship continued into 1986 in much the same way as when they were living under the same roof.

4 In Mummery v. Mummery [1942] 1 All E.R. 553 Lord Merriman said at p. 555 that he doubted whether any judge could give a completely exhaustive definition of cohabitation and went on to say that at least a resumption of cohabitation must mean resuming a state of things, that is to say, setting up a matrimonial home together. He said that it seemed to him that that involved a bilateral intention on the part of both spouses so to do.

5 In R. v. Creamer [1918–19] All E.R. Rep. 222 Darling J. said at pp. 223, 224 that in determining whether a husband and wife are living together, the law has regard to what is called the consortium of husband and wife, a kind of association only possible between husband and wife. He went on to say that a husband and wife are living together not only when they are residing together in the same house, but also when they are living in different places, even if separated by the high seas, provided the consortium has not been determined.

6 The following passage appears in Finlay's Family Law in Australia at para [551]:

“Consortium vitae is the matrimonial relationship, consisting of the various incidents that go to make up such a relationship; such matters as marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and private, correspondence during separation” Tulk v. Tulk [1907] V.L.R. 64 per Cussen, J.) are among those incidents, but they are neither exhaustive nor exclusive. For example, the importance in a given relationship of sexual intercourse will vary with such circumstances as the age and health of the parties. To argue that absence of one of the usual incidents of a marital relationship in a given marriage supports an inference that that relationship has broken down will lack cogency if that incident did not play any important role in the particular marriage in question, even at a time when that marriage was a success.

In 1949 the High Court stressed the central element in consortium in the following terms: Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closest association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by...