The non-marriage union in private international law
Author | Winston Anderson |
Position | L.L.B (U.W.I), Ph.D (Cantab); Barrister; Lecturer, University of the West Indies; Visiting Fellow, University of Western Australia |
Pages | 366-402 |
TH E NON-M AR RIA GE UNIO N I N PRIV ATE
INT ER NA TIO NA L LAW
By
Win ston Anderson*
1. I NT RO DU CT ION
Le gis lati ve rec ogn itio n of th e non-marriag e union, as an
alternativ e to the co nventional Ch ristian marr iage of western
societie s,1 is steadily on the increase. A rgum ents that such unions are
inh eren tly con trar y to p ubli c policy, in tha t they underm ine the
inst ituti on o f marriage, are being rejected in favo ur o f the proposition
that regu lation o f the rights and oblig atio ns of de fa ct o spou ses is
ne ces sary in order to a voi d e xplo itation of one b y th e other.2 More
L.L .B (U.W .I), Ph.D (Cantab); Barrister; Lecturer, Univer sity o f the West
Indies; Visi ting Fello w, Univ ersity of Western Australia. I wis h to thank
Mi ss A. Gardiner, one of the students in my 1995 /6 U .W. I. Private
International Law class, for pr oof-reading an earlier draft of this paper.
The clas sical statement o f the signifi cance and definition o f the Christian
marriage is attributed to Lord P enzance, the Judge Ordinary, who stated, in
Hy de v. H yde and Woodma nsee ( 1866 ) L.R. 1 P. & D. 130 at 133, that:
"Marriage has been we ll said to be som ething more than a
contract, either religious or civil - to be an Institution. It creates
mutual righ ts and oblig ations, as all contracts do, but beyo nd that
it conf ers a status. The posi tion or status o f’husband' and ‘wif e’ is
a recognized one throughout Christendom: the laws of all Christian
nation s throw about that status a variety of legal inci dents during
the live s o f the parties, and ind uce definit e rights upon their
offsprin g. What, then, is the nature o f this institution... I conc eive
that m arriage, as un derstood in Ch ristendom ma y for this pu rpose
be d efined as the vol untary uni on fo r life o f one man and one
woman, to the exc lusion of all oth ers f (Italics added).
See , generally , N ew South Wa les L aw Reform Co mmissio n's Summa ry o f
Issue s Paper: De F acto Rela tionships, 1981, pp. 8-10 , quoted in H.A . Finlay
and R.J. Bailey-Harr is, Fami ly L aw in Au strali a, (4th ed ., 1989 )
(Butterwo rths), p. 375-3 76.
366
The N on-Marr iage Union 367
and more c oun trie s are coming to accep t that the intermingling of
financial an d pe rsonal affairs of parties to a stable de fa ct o
rel atio nsh ip prov ides a legitimate basis for society to intervene to
ensure equity and fairnes s in decisio ns concern ing such m atters as
div isio n of prope rty, maintenance , care an d c ustody of the parties’
child ren, and succe ssio n.3 Th e incidence o f such unions is expected
to increas e with the co ntin ued affirma tion of th e accep tability o f
alte rnative life sty le ch oices.
As w ith conventional marriages, th e factual circum stances o f non-
ma rriage unions will inev itab ly have a different impa ct unde r the
var ious legal sys tem s, giv ing ris e to questio ns as to w hether rig hts
and du ties crea ted in one ju risd ict ion are cog nizable in another.
Unlike the tradition al fam ily arrangement, how ever, neith er
leg isla tio n givi ng legal reco gnition to such unions nor the comm on
law has yet p aid any, or any ade quate, attent ion to th e private
international law implication s. In dividual legislatu res app ear to have
been intent on rem edying pe rceiv ed social problems w ithin thei r own
particular ju ris dic tions wit hout givin g co nsid eration to the
transnatio nal law context.4
The purp ose of this pap er is to expl ore the likely reaction of
private international law to the non-marriage union. First, there is the
que stio n o f d efi nin g, in a trans natio nal context, wh at prec isely is
me ant by a non-ma iriage union . Th is is n ot an easy ta sk, since
releva nt le gislatio n differs con siderably amo ng various countries.
Rele vant pr ovisions are cited below.
See, e.g.t the precursor to the Barbados legislation, The Report o f the Na tional
Com mission on the Stat us o f Women in Ba rbado s (V ol. I). T he Com mission
held sev eral he arings and receive d numero us reports con cerning the s ocio
eco nom ic posit ion o f w omen in Barbados. N ote espec ially the c omments,
obser vations and conc lusion s at pp. 5 5-56, 87.
368 Caribbe an Law Review
Secondly, th ere is the p rob lem concerning the union 's internatio nal
legitimacy: is it to be legally cogn izabl e only with in th e juri sdi ction
where it was created or within the juris prud enc e o f other cou ntries as
well. In oth er words, is the non-marriage union en titled to some kind
of international a cce ptab ility com parable to the Christian ma rriage?
If this que stio n is answ ered in the añ fmative, then, by necessar y
im plication, it becomes imperative to make som e preliminary
observations on th e likely content of the substantive co nflict rules. In
particular , con nec ting factors for ju ris dic tio n; gov erning la w and
rec og nition o f foreign orders wou ld n eed to be explicated. Thirdly,
the re is th e issue o f the relationsh ip b etw een the conve ntional
ma rriage and t he union. Factual overlapping o f fam ily patt erns will
be seen to manda te the identification o f a method of ratio nal izin g the
mu tua l relat ionship o f these forms o f personal asso ciations.
2. ID ENT IFY IN G TH E N ON -MARR IAGE UN ION
Un doubtedly, proble ms o f definition be devil t his area. How eve r, it
may, in general, be taken t hat a non-m arr iage union describes the
lim ited status granted by legi slation to a m an an d woman who, not
being m ar rie d to eac h other, have nonetheless coh abited in a
relati on shi p o f som e pe rmane nce . Several comm ents arise on this
wording .
(i) T erm ino logy
The re is clea rly a prob lem of terminolog y since the non-marriage
un ion is kno wn by vario us app ellations. In the Ca nad ian case of
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