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LAYNE - CariLAW Search Results

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THOMPSON v. LAYNE

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Citation # BB 1985 HC 20
Country Barbados
Court High Court. (Family Division)
Judge Williams, J.
Subject Family Law
Date April 2, 1985.
Suit No. Family Division Suit No. 236 of 1984
Subsubject Defacto spouses - Applicant sought maintenance for herself or a declaration of
interests in property - Whether the applicant had proved that there was a "union"
within the meaning of section 50(1) of the Family Law Act to the effect that the parties
had cohabited for 5 years or more - Question of fact whether cohabitation between
the parties had started in 1978 or 1981, it being conceded that cohabitation ended
in 1983 - Court accepted evidence given on behalf of the applicant that cohabitation
began in 1978 - Held that in all the circumstances the applicant had on a balance
proved cohabitation for 5 years.
Full Text Appearances
Miss V. Blenman of Messrs. Smith & Smith for the applicant/wife.
Mr. A. E. Martindale for the respondent/husband.

JUDGMENT: The issue here is whether there was in existence between these
parties Esther Thompson and Winston Layne a union within the meaning of the
Family Law Act, 1981 No. 29.

"Union other than marriage" or "Union" is defined in section 39 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.

Section 50 (1) of the Act enacts that a party to a union other than marriage is, subject
to subsection (2), liable to maintain the other party to the extent that the first
mentioned party is reasonably able to do so.

Subsection (2) of section 50 provides that the liability of a party under subsection (1)
arises only where the other party is unable to support herself or himself adequately,
whether by reason of having the (end of page 1) care or control of a child of the
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8/26/2014 THOMPSON v. LAYNE - CariLAW Search Results
union who has not attained the age of 18 years, or by reason of age or physical or
mental incapacity for appropriate gainful employment or for any other adequate
reason having regard to any relevant matter set out in section 53 (2).

Section 56 enables the Court, in proceedings between the parties to a union in

respect of the existing title or rights to property, to declare the title or rights, if any,
that a party has in respect of the property; and section 57 enables the Court, in
proceedings in respect of the property of the parties to a union or of either of them, to
make such order as it thinks fit altering the interests of the parties in the property.

The application before the Court is for maintenance for the applicant and a
declaration that the applicant and the respondent own the property where they lived
and the furniture therein in equal shares; alternatively, the applicant seeks an
alteration of the interests of the parties in the property so as to vest in her one half
share therein.

As I indicated earlier there is contention as to whether or not a union existed. The

applicant Esther Thompson testifies that she and the respondent Winston Layne
began to live together at 6th Avenue, South Lowland Drive, Friendship Terrace, St.
Michael from on or about the 18th of August 1978 until the 20th of August, 1983. Her
testimony is that they cohabited continuously as man and wife for that period. She
brought one witness, Denise McClean, in support of her evidence. The respondent's
testimony is that they began to live together in March 1981 until August 1983 when
the applicant left his home. He brought two witnesses Michael Drakes and Leroy
Hunte to support his case.

The question whether the parties began to live together from August 1978 or from
March 1981 is a question of fact. I have given the evidence careful consideration and
have also given weight to the demeanour of, and the impressions created by, the
witnesses. I was most impressed with Denise McClean and I had the distinct
impression that she was speaking the truth. I also thought much of the applicant
and her evidence. I believe their evidence that it was 1978, and not 1981, when the
parties began to live together.

The question that I found more difficult and caused a great amount of thought is
whether the applicant has satisfactorily proved the 5 years duration of the
cohabitation. I have in mind her evidence that cohabitation began "on or about the
18th of August". Cohabitation ceased on the 20th (end of page 2) of August, 1983.
Can it be said that the applicant - for the onus of establishing that a union came into
existence is on her - has proved that they cohabited for a period of five years or
more?

McClean's evidence is that the applicant was living with the respondent from some
time before September, 1978. So that neither the applicant nor McClean have fixed a
specific date as the date on which cohabitation commenced. And neither of them
was examined on this part of their evidence.

In Blackett v. Clutterbuck Brothers (Adelaide), Ltd. [1923] S.A.S.R. 301 there was a
stipulation in a contract that certain machinery was to be delivered on or about 1st
October, 1922. Manny, C.J. said at pp. 306, 307 -

"Delivery on 2nd September could not be a reasonable performance of an order

asking for delivery on or about the 1st day of October . . . . . The words 'on or about' in
the context in which they are used, do not . . . . . allow of much latitude. If the
expression had been 'in or about the first week in October' possibly a week on either
side would be included but I should have no hesitation in holding that twenty-nine
days would not… A day or two on either side or perhaps three…would… be the
most that could reasonably be held to be covered by the expression."

I have to interpret the applicants’ words and in seeking to do so I will give to the
phrase what I consider to be its common and ordinary meaning. It seems to me that
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8/26/2014 THOMPSON v. LAYNE - CariLAW Search Results
the applicant was saying that she began to live together with the respondent on the
18th of August, 1978 or on some other prior or later date closely approximate to the
18th. It is clear that cohabitation ceased on the 20th of August, 1983. In my judgment
in all the circumstances she has on balance proved cohabitation for five years
although I would think it desirable for parties to "union" cases - and especially those
on the borderline - to deal more satisfactorily with proof or otherwise of the union.
Union obligations can be more difficult to enforce than marital obligations. It is
relatively easy to prove a marriage. Attorneys in union cases should bear in mind
that union obligations only arise where a union is proved to have come into
existence and they should ensure that the question is dealt with in a satisfactory
manner and not left to conjecture.

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