Do you qualify as a spouse? Lessons from Albert Selby v Katrina Smith

court picThe deceased, Albert Selby, died without leaving a will and thus his estate is to be dealt with according to the Succession Act and the rules of intestacy which give priority to the deceased’s spouse, children then parents then siblings then nephews and nieces. The deceased was divorced, had no children and his parents died before him. The parties in the Albert Anthony Peter Selby v Katrina Smith [unreported] C.A. B’dos Civil Appeal No 14 of 2010; 2017-02-14 case are the brother of the deceased man and an unmarried woman with whom the deceased was cohabiting up until his death.

At the center of the case is the Succession Act of Barbados, particularly Section 2 which speaks to who is considered a spouse under the Act. Section 2 (3) and (4) of the Succession Act states

(3) For the purpose of this Act, reference to a “spouse” includes

  • 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;
  • 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.

(4) For the purposes of subsection 3, a reference to a single woman or a single man includes a reference to a widow or widower or to a woman or to a man who is divorced.

One of the two issues which the High Court was asked to determine was whether Ms. Smith is capable of being regarded in law as the deceased’s “spouse” for the purposes of the Succession Act, given that the deceased was a married man during a part of the five year period immediately preceding the date of his death. The High Court decided in favour of Ms. Smith and the deceased’s brother appealed to the Court of Appeal.

The deceased having been married at the start of the cohabitation with Ms. Smith and for a part of the 5 years immediately preceding his death, the issue which the Court of Appeal had to determine was who constitutes a single person for the purposes of Section 2 of the Succession Act.

The Court of Appeal handed down its decision last month and held that Mr. Selby though separated but not divorced from his wife for the requisite period of not less than five years immediately preceding the date of his death cannot be considered as single. The consequence of the Court of Appeal’s decision is that Ms. Smith, who regarded herself as Mr. Selby’s partner for several years cannot benefit from his estate on intestacy since she does not qualify as his spouse.

                                                                                                           – Kara-Je Kellman

On Harassment and Sexual Abuse: #LifeInLeggings

Over the last several days social media has been alight with personal accounts of sexual harassment, rape, sexual abuse and physical and verbal abuse which stemmed from the above atrocities. Persons, mostly women from the Caribbean, related to the world of social media some of their untold stories. What started as a flame has been the catalyst for many a conversation, discussion, vlog and even newspaper article. Many persons have now finally found the strength and courage to relay their experiences to their friends, associates, strangers – the world.

These posts have been a source of encouragement for some and a reminder to others that they are not alone in their experiences. It has also caused countless persons to reflect, do some retrospection and introspection and realise that they are or were a part of the problem. Many persons have apologised. Many have openly supported the victims and condemned the culprits. Society was also not left unscathed. We know that often at the heart of these issues is how we were conditioned and thus society was also thrown into the fire. In light of all of this, I have undertaken to set out below what the law offers to the victims of these inhumane, highly offensive acts.leggings

The Minor Offences Act Cap. 137 at Section 2 (1) says ‘ Any person who…

(c) wanders in the public streets or highways or in any place of public resort and behaves in a riotous or indecent manner;

(d) in any street, highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(e) loiters in any street highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(f) in any street, highway or public place, including a beach, without lawful authority or excuse (the proof whereof shall lie on the person accused), accosts, molests, threatens or harasses any person or follows him about;

commits an offence and is liable on conviction before a magistrate to a penalty of $2500 or to imprisonment for 2 years or both.’

Section 2(2) states that in this Section, ‘ “harass” means to

  • Use words, gestures and actions that annoy, alarm or abuse a person;
  • Insult, taunt or challenge a person in a manner likely to offend;
  • Use obscene and profane language to intimidate a person; or
  • Disturb or irritate especially by continued and repeated acts.’

A Sexual Harassment (Prevention) Bill is also in the works and is expected to afford greater protection to employees against sexual harassment in the workplace.

                                                                                                     – Kara-Je Kellman

Gun Violence in Barbados: 100 Days Jail Before Bail?

Recently, there have been discussions on whether a person charged with an offence under the Firearms Act Cap. 179 of Barbados should be automatically sent to jail for 100 days or some other specified period before bail is available to him.gun_violence-1-pic

In my view, a person charged with an offence should be treated as innocent until he admits guilt or until he is found guilty. To implement laws which mandate the automatic remand of a person who is charged with a firearm offence not only usurps the power of the presiding judicial officer but defeats a fundamental principle of the rule of law, that is, a person is innocent until proven guilty. The Bail Act already sets out the circumstances under which a judicial officer may deny bail. The Bail Act also states what factors the judge or magistrate may consider when deciding whether or not to grant bail.

In my opinion, Barbados should not follow the twin island Republic of Trinidad and Tobago and amend its Bail Act to mandate that a person charged with certain firearm offences is not eligible for bail or that such a person must spend a certain period on remand before he or she can be considered for bail. Of course, the Court should always seek to balance the interests of society with the interests of the accused person. If the person charged is fit for bail in accordance with the Bail Act, the judicial officer should exercise his discretion to grant him bail.

                                                                                                                   – Kara-Je Kellman

Unfair Dismissal Under The Employment Rights Act of Barbados

unfair-dismissal-picThe Employment Rights Act (“the Act”) gives an employee who has been continuously employed for at least one year, the right not to be unfairly dismissed. However, the Act also gives an employer the right to dismiss an employee for certain reasons under Section 29 of the Act or for some other substantial reason of a nature such as to justify the dismissal of the employee. Section 29 allows for the dismissal of an employee for reasons relating to the capability of the employee to do the work he was employed to do, the conduct of the employee or where the employee was redundant but subject to Section 31.

However, before dismissing an employee for a reason relating to his conduct or capability, the employer must inform the employee of the accusation against him and allow him an opportunity to state his case.

Whether or not the dismissal was unfair depends on whether the employer acted reasonably or unreasonably in treating the reason as a sufficient cause for dismissing the employee and whether the employer complied with the rules set out in Part A of the Fourth Schedule. These rules include but are not limited to the following: an employee must not be dismissed for his first breach of discipline unless it is gross misconduct; where a breach of discipline does not amount to gross misconduct, the employee should be warned and given a reasonable opportunity to make a correction before more stringent disciplinary action is taken.

The Act provides for many instances where an employee may be deemed to be unfairly dismissed. Some examples of these instances are: if the reason for the dismissal relates to his race, colour, gender, age, marital status, religion, political opinion or affiliation, national extraction, social origin or indigenous origin; if the reason for the dismissal is that: he refused to carry out an unlawful instruction from the employer;   he participated in trade union activities outside, or with the permission of the employer during, working hours; the employee is or was a disabled person in circumstances where the employer could reasonably have been expected to offer the employee alternative employment.

Where it is found that an employee was unfairly dismissed, the Employment Rights Tribunal which was established under the Act, has the power to order the reinstatement or re-engagement of the employee where the appropriate circumstances exist or to make an award of compensation. If either party is dissatisfied with the decision of the Tribunal, that party may appeal to the Court of Appeal.

                                                                                                                                          – Kara-Je Kellman

What Shanique Myrie v The State of Barbados Teaches Us About The Award of Damages Under The Revised Treaty of Chaguaramas Regime

damages pic 1

Shanique Myrie, a Jamaican national, had claimed that prior to deportation from Barbados to Jamaica in 2011, she was subjected to a body cavity search and detained in an unsanitary cell overnight. She had also claimed that she was discriminated against on the basis of her nationality. As a result, she asked the Caribbean Court of Justice (“the Court”) to make an Order for Barbados to pay special and punitive damages and an Order for the recovery of all her legal costs. The Court considered the matter applying the Revised Treaty of Chaguaramas (“the RTC”) and a 2007 Decision of the Heads of Government of CARICOM.

According to the Court, in order for a claim for damages to succeed, the Claimant must show that the RTC provision breached was intended to benefit her, the breach must be a serious one, the damages or loss should be substantial and there should be a causal link between the breach by the State and the loss or damages claimed.

The Court stated that under the RTC regime, the damages that can be awarded by the Court are compensatory. There is no place for exemplary or punitive damages before the Court in its original jurisdiction. The Court referred to the case of Trinidad Cement Limited TCL Guyana Incorporated v. The State of the Co-operative Republic of Guyana [2009] CCJ 1 (OJ) where this principle was established. The reason behind this is, the civil law jurisdictions in the Community do not allow for the award of exemplary damages and therefore this remedy cannot be a part of a legal structure that embraces both traditions.

The compensatory damages that can be awarded in international law are those for pecuniary loss or damage and non-pecuniary loss or damage. Pecuniary loss or damage means that such loss or damage can be calculated in terms of dollars and cents.  For example, you may claim that your bag which you bought for S50.00 was destroyed and therefore ask to be compensated $50.00 for the loss and damage. It follows that non-pecuniary loss or damage cannot be quantified in monetary terms. This type of compensation is usually for mental suffering, injury to feelings, humiliation, degradation, loss of social position or damage to reputation.

The Claimant claimed the sum of JA $112,000.00 for the airline ticket and medical expenses. This amount was not challenged by Barbados and the Court held that she was entitled to that amount for pecuniary damages.

The Court was of the view that the body cavity search and the conditions of her overnight detention constituted a very serious breach of her right to enter Barbados free of hassle and harassment. The Court then sought to determine whether this treatment was sufficiently related to the exercise of her right of entry. The Court found that the breach of the right encompassed all that took place at the airport in Barbados between the time of her arrival there and her deportation the following day.

The Court pointed out that it was not awarding damages for human or fundamental rights breaches; neither was it seeking to create an appropriate remedy for assault or unlawful detention since these are not causes of action actionable before the Court in its original jurisdiction. The Court stated that it was instead awarding damages for breach of the right to enter Community States without harassment and hassle. The Court was of the view that there must be a high award of damages for the breach since it was accompanied by serious circumstances.

Consequently, the Court ordered the State of Barbados to pay the Claimant Bds $2,240.00 (JA $112,000.00) for pecuniary damages and Bds $75,000.00 for non-pecuniary damages. The Court also ordered the State of Barbados to pay the Claimant’s legal costs.

                                                                                                                                         – Kara-Je Kellman

Shanique Myrie v. The State of Barbados: CARICOM Nationals’ Right of Entry Into Community States

In Shanique Myrie v. The State of Barbados [2013] CCJ 3, the Caribbean Court of Justice (“the Court”) sitting in its original jurisdiction was faced with an issue of major importance, that is, whether and to what extent CARICOM nationals have a right of free movement within the Caribbean Community.

The Claimant, Shanique Myrie who is a Jamaican national, arrived in Barbados on March 14 2011, was denied entry and the following day was deported to Jamaica. She brought an action against the State of Barbados in 2012 and asked the Court to make several Declarations and Orders including an order to pay special and punitive damages. The State of Jamaica joined the Claimant and was granted the status of Intervener by the Court.

The law applicable to this case is the Revised Treaty of Chaguaramas (“the RTC”) and the Decision of the Conference of Heads of Government of the Caribbean Community taken at their Twenty-Eighth Meeting (“the 2007 Conference Decision”).

Article 45 of the RTC states: Member States commit themselves to the goal of free movement of their nationals within the Community.

The 2007 Conference Decision reads:

“THE CONFERENCE

AGREED that all CARICOM nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in the Caribbean Community, subject to the rights of Member States to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds.”

After hearing submissions from Barbados and the Community, the Court held that the use of the word “agreed” and not “decided” is inconsequential and accordingly, the 2007 Conference Decision is effective.

The Court was then met with the question, whether article 240 of the RTC requires the 2007 Conference Decision to be enacted at the domestic level before it becomes binding on that particular Member State. Article 240 (1) and (2) states:- 1. Decisions of competent Organs taken under this Treaty shall be subject to the relevant constitutional procedures of the Member States before creating legally binding rights and obligations for nationals of such States. 2. The Member States undertake to act expeditiously to give effect to decisions of competent Organs and Bodies in their municipal law.

Under the Barbados Immigration Act (Section 3), there is a basic presumption that persons who are not citizens or permanent residents of Barbados have no legal right of entry into the country. However, the Court stated that as a result of the RTC and the 2007 Conference Decision, CARICOM nationals do have a right to enter Barbados and all other Member States. The Court further stated that it is the duty of every Member State to ensure that its domestic law reflects and endorses Community law.

However, it should be noted that there are two exceptions to the right of entry, namely, that the Community national is an undesirable person, and, it is evident that the Community national will become a charge on public funds. The Court noted that since these grounds of refusal of entry are exceptions to a fundamental principle of free movement, the premises on which the refusal is based must be interpreted narrowly and strictly. Further, the burden of proof lies on the Member State that seeks to invoke either ground for denying entry.

As it relates to undesirability, the Court held that no restrictions in the interests of public morals, national security and safety, and national health should be placed on the right of free entry of a CARICOM national unless that person presents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

In the event that a Member State denies entry to a CARICOM national, that State is required to give to the person reasons for the denial of entry promptly and in writing. The Court expressed the view that it would be reasonable to permit persons who have been refused entry the opportunity to contact an attorney or consular official of their country or a family member.

In light of the CCJ’s judgment in Shanique Myrie v The State of Barbados which highlighted relevant articles in the Revised Treaty of Chaguaramas and the 2007 Conference Decision, Community nationals have a right of entry into the territories of Member States and are entitled to an automatic stay of six months upon arrival. This definite right of entry may only be derogated from where the person is an undesirable or it is evident that the person will become a charge on public funds. The grounds for refusing entry to a CARICOM national must be narrowly and strictly interpreted.

                                                                                                                                         – Kara-Je Kellman

What were Barrow & Williams Thinking?

errol barrow and eric williamsBarbadians are warming to the idea that they should participate continually in decision making in their country when traditionally they have felt that their duty was to vote every five years and then go about their own business.

H.E. Errol W. Barrow & Dr. Eric E. Williams

There are many extra-constitutional means of doing this such as communicating with your Member of Parliament staging demonstrations, taking strike action, engaging in letter writing campaigns and sit-ins. Demonstrations and strike action are perhaps the tools most often used in Barbados.

Governments and some Ministers do take the engagement of the public seriously and would invite them to consult before developing and implementing any major policy initiative. This of course depends very much upon the temperament of the Minister, there being no legal requirement to consult.

Call for greater participation

Barbadians have made lukewarm calls for referenda on issues such as decoupling of Barbados from the United Kingdom. They have also suggested that they should be able to re-call parliamentarians.

Those who know how easy it is to manipulate political outcomes by those who have the greatest access to money have been skeptical. There is no doubt that an individual who had managed to win a seat could be unseated through recall by those within his or her own party or the opposition party through bribing the electors.

No provisions for referenda

All CARICOM countries currently have provisions for referenda in their Independence Constitutions except for Barbados and Trinidad & Tobago. Belize passed a Referendum Act in 1999.

Referenda experience

On June 23rd 2016 Barbadians saw a referendum play out before them in the United Kingdom where through a simple majority (52% to 48%) the people of the UK voted to leave the European Union.

This reflects the power of the media since the referendum in St. Vincent and the Grenadines did not engage Barbadians in the same manner.

Arnhim Eustace & Dr. Ralph Gonsalves

A constitutional referendum was held in Saint Vincent and the Grenadines on November 25th 2009.Voters were asked whether they approved of a new Constitution which would have replaced the Constitution in force since independence in 1979.The proposal included removal of the Queen of England as Head of State and the adoption of the Caribbean Court of Justice as the final court of appeal for that country. It was supported by only 43.13% of voters in the referendum, well short of the required two-thirds threshold.

In the Vincentian process a broad-based body had been established by the Government, Opposition and the Social Partners, however by the date of the vote commentators expressed the view that the process had been hijacked by partisan political interests.

Can we get it right?

drAlexisDr. Francis Alexis Q.C. in Changing Caribbean Constitutions expresses his views on referenda thus:

To be successful, a referendum for constitutional change requires that there be national consensus on proposed changes. So there has to be astute patriotic statesmanship on the part of leading opinion shapers, especially on the part of both Government and Opposition. The process might be helped if the people have choices    among separate bills; rather than being presented with a separate bill which leaves no room for choices. [1]

Dr. Francis Alexis Q.C.

Did the UK meet the standard

This is a standard which clearly was not met in the United Kingdom starting with the £350 million pounds which would not be available to the National Health Scheme. Constitutional lawyer at the University of Liverpool Professor Michael Dougan described the Leave Campaign as dishonesty on an industrial scale. And he provides examples.

Leavers had argued that EU legislation was adopted by the unelected commission which is untrue. Professor Dougan explained that all of it is adopted by the council which is represented by the elected governments. No doubt used as a scare tactic voters were told that there was a plan in the EU to create a European army which would absorb the UK army against the will of UK citizens. The Constitutional lawyer pointed out that A common European defence policy would require approval at the domestic level within the UK parliaments. Here is the full presentation:

MichaelDougan-1w

Professor Michael Dougan

https://www.facebook.com/UniversityofLiverpool/videos/1304633102897424/?pnref=story

Professor Dougan ultimately described that systematic dishonesty was used as a primary tool to win votes and as such has done untold damage to the British democracy. And he is right.

Can Barbados meet the standard?

Well what would one say about the Barbados democracy?

Barbadians are used to hearing lies from the political platform and no one seems outraged by them. They seem to accept that this is the nature of politics. It however creates apathy and disillusionment especially when the lies seem to come from both sides.

In order for the people to determine how they should vote in a referendum they must understand fully the implications of their vote. How many people actually understand how CARICOM works just as one might ask how many people understood how the EU works?

How many people understand functional cooperation and the carve outs negotiated internationally based on a single market?

Yet individuals frequently say that CARICOM is a waste of time without actually knowing.

It is accepted that members of the public whose main objective is to keep their household going would not have the time to read and internalize the Treaty of Chaguaramas as well as the various decisions of the organs of CARICOM.

We can do better

This is why Dr. Alexis’ statement is so critical. The integrity of the opinion shapers is critical.

Unless the individuals leading the campaigns are going to be honest then a referendum vote by an informed electorate would be almost impossible.

Given our history of “corned beef and biscuit” and “roti and rum” politics it would be difficult for Barbados and Trinidad & Tobago to ever reach that standard, even though  bribing electors is in breach of the election legislation.

Perhaps this is what HE Errol W. Barrow and Dr. Eric E. Williams understood when finalising the provisions of the Barbados and Trinidad & Tobago constitutions.

However theirs was a young democracy. CARICOM must work towards a more engaged and more informed electorate as our democracies mature.

Barbados celebrates 50 years of independence on November 30th, 2016.

[1] Alexis, Francis, Changing Caribbean Constitutions at paragraph 3.79

Lynette Eastmond

Should Persons Accused Of Murder Get Bail?

bail picIn a preceding article we spoke about Bail in Barbados generally, with particular focus on the Barbadian Bail Act. If you read that article entitled ‘Bail in Barbados- Did You Know?’ you may recall that the Court has a discretion to grant or refuse to grant a person bail and in exercising this discretion the Court may consider certain factors set out by the Bail Act. For some time, Barbadians have been reacting to the Court’s granting of bail to persons accused of certain types of offences. Of particular interest to Barbadians is the Court’s granting of Bail to persons accused of murder. We will therefore briefly discuss whether a person accused of murder should be granted bail.

We realized in the former article that while Magistrates do not have the power to grant bail to persons accused of murder, judges of the High Court have the authority to grant bail to such persons. In Barbados, we have noticed that persons who were on remand for years after being charged with murder, have been granted bail by the Court. This has led to many persons expressing their disapproval with the Court’s decisions to grant  accused persons bail.

Some persons complain that such a decision is unfair to family members of the victim. It is completely understandable that the relatives and friends of the victim would feel some emotion upon hearing that the person charged with the murder of their loved one was granted bail.

There are also persons who disagree with the granting of bail to persons accused of murder because they believe they pose a threat to members of society. There are others, who, because they may not understand what bail is and how it works argue that the accused was released with a slap on the wrist.

Before I refer to the Constitution of Barbados, I must point out that a person accused of murder has not been found guilty of the serious offence; they have only been charged with murder. It is of the greatest importance that we digest this. An accused person has not pleaded guilty neither has he or she been found guilty of the offence for which he or she is charged. Bail should therefore not be seen as a slap on the wrist since it is not a sentence. In fact, time spent on remand awaiting trial may be considered as punishment since, where there is a finding of guilt, the Court treats such time as part of the sentence.

I must also highlight that the fundamental question, among the many questions with which the Court is faced in deciding whether to grant bail, is whether the accused person will appear at Court for the trial of the matter.

Let us turn our attention to section 13 of the Constitution which provides for the right to personal liberty. Subsection 3 is of great significance to the matter at hand. I will set it out in full to avoid butchering the provision.

Any person who is arrested or detained-

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed or being about to commit a criminal offence,

and who is not released, shall be brought before a court as soon as is reasonably practicable; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

Therefore, given this Constitutional provision and the provisions contained in the Bail Act, a person accused of murder is entitled to apply for bail and further, has a right to bail if he or she is not tried in a reasonable time. The Court may attach suitable conditions to the bail to ensure that the accused appears at Court for subsequent court hearings or trial.

                                                                                                                                        – Kara-Je Kellman

(You can read the article ‘Bail In Barbados – Did You Know?’ at: https://bealexattorneys.wordpress.com/2016/03/17/bail-in-barbados-did-you-know/)

What Happens When You Default on the Mortgage on Your Property

Manage-Risk-1-300x300Hi All,

So you have defaulted on your mortgage despite everything I’ve told you. I’m sorry to hear that, but it happens.

Many people fall short of their obligations or simply fail. Look at Donald Trump. He had all those bankruptcies and is now a billionaire running for President of the United States.

This is what this post is about. The important thing is not that you messed up but how you handle messing up.

I know many of you look at your house and see the time and energy you put in. You can say why you picked that hideous colour for the feature wall and still laugh when you recall Junior’s mishap with the gardening tools on your parquet floors. It is an emotional investment. I get it.

However, you really should also remember that you entered into a business deal. Yes, every mortgagor is a businessperson. The mortgage really came about because you wanted to invest in property, whether for its own sake, or for your family, or for a space to live. Some even pay their spouse’s or friend’s gambling debts or go on a world cruise because their next door neighbours won’t shut up about theirs – called investing in experiences (YOLO!). The Bank wanted to invest in your loan in the hope of getting a substantial, reliable return. So you both are partners, the Bank bringing the seed money.

Now, in this mind-set look at your options. First, you need to reassure your partner you’re still good for the return before it demands all its money and gets out of the venture. As I’ve said previously you have a couple things in your favour: one, the Bank (Mortgagee) will do its best to keep its investment if there is any hope you can still pay, and two, the Bank can usually forgive defaults if you rectify it in a timely manner.

meetingTherefore, the first thing you do is call your partner, the Bank, via your liaison officer, explain why you are in default and say when you can rectify it. I know you may think that she does not know, so why draw attention to yourself? This thinking is from 1827, as if your mortgage account involves a dusty ledger and an accountant with undiagnosed dementia who checks it once a year. No. This is the twenty-first century. It’s all automated now. The day after the system does not see your payment, or you didn’t submit that insurance certificate or you missed a loan payment on some other facility, a report is generated that shows up from her supervisor to as far as a certain northern parent company who is wondering if its investment in you is suspect and if it should cut its losses before the shareholders find out. If the Bank takes too long to issue a notice to you, the officer in the parent company may actually call or email that poor liaison officer and make sure she calls, writes or emails you. So not only will you be showing you are honest and trustworthy by calling her first, you will be making her life easier as well, which makes people more disposed to giving you a little ease. If you handle it right, most likely you and the Bank will stay partners well into the future.

If you’re saying you really can’t pay, that you’ve lost your job and cannot find another or have become disabled and you can no longer pay for the multi-million dollar condo at Rockley Resort you still owe a king’s ransom on, then that’s where it gets complicated.

Well, the prudent, obvious thing is to dissolve the business before you incur further losses. In this case you put the property up for sale and move in with your parents. Sorted.

Or, you could rent it out and then move in with your parents.  That way you can still pay your mortgage and get some income as well.  But get permission from the Bank first.  You most likely agreed to do this in your contract.

I hear what you’re saying: your parents’ house is cramped, you’re comfortable, you love your house and besides, the Bank is rich and they can wait on the money. They are making loads of interest on you, after all, so why would they be stressed?

Don’t forget, this is a business transaction. The Bank was sitting there, minding its own business, when you walked in and pitched them on a wonderful opportunity and now it’s looking sour. Your partner is going to do what any prudent businessperson will do; try to get out before its losses are too great and the shareholders sue for incompetence.

-Overcoming-Challenges-02-e1454609737382-560x295Okay, now you are crying about leaving your travertine tiled floors that you installed yourself and feel the Bank should understand. Why? The Bank never agreed to be your friend. The longer you linger in the house the interest is increasing and eroding the worth of your house (the equity) and the Bank’s ability to recoup the sum you owe. It’s a serious matter, especially if you both stand to be saddled with a balance on a loan that the both of you will spend years into the future trying to pay or collect, annoying if you really can’t pay.

Still, you’re saying you’d rather die than give up your custom kitchen. They’ll have to drag you screaming from your double ovens. Sadly, this means your partner will have to enforce the mortgage contract.

The next thing that will happen is that your matter is assigned to a lawyer ($$$). The lawyer will send you what is called a “Statutory Notice” (Notice). Because of the Property Act CAP 236 of the Laws of Barbados, several provisions are implied into your mortgage unless you agreed in your mortgage contract to specifically discard them. One provision is that a formal notice must be sent to you, demanding that you pay all the money due to the Bank under the mortgage, or the Bank will sell your land/house/condo. The law says the Bank can only proceed one month after you receive the Notice, which you probably agreed can be deemed served by registered post to your last known address. So, no, you can’t just shut all the windows and hide.

If your land is without a house on it, the bank can conceivably hold an auction the day after the expiry of the wait time. They won’t do that, however, as under the same laws they have a duty to act in good faith and find the best market for your property at that time. To treat it as though it were selling its own house. So they have to drum up interest by advertising, seek professional valuations to make sure that they know the value of the land. However, once they’ve done their best they can sell it to whomever makes an offer they will take. They are not required to wait for a better market or offer.

However, if there is a house on the land, the above still applies, but the assumption is that persons are occupying the house. So an application required by law (Property Act) is made to the court to gain possession. This application came out of equity (principles of fairness the court adheres to that are not strictly law but are almost as good as) because you both have already agreed that the sale would happen if you can’t pay.

Home for sale
House for sale

Basically, so that Mortgagors do not “lose” their homes willy-nilly, they are given an opportunity to make their case to the court if they believe that they can redeem the mortgage (pay back everything to the Bank, now including its legal expenses) or remedy some other default in a reasonable time rather than have to move out. What should happen is that the Court examines if this is just wishful thinking or not. If not, they are given a reasonable time under the circumstances to pay or deliver up possession, either by adjourning the matter to a later date or by a possession order which is suspended a few months to give you time to pay. If there is no reasonable prospect of redemption then the order for possession should be granted. The order now gives the Mortgagee access to the court’s organs for the enforcement of its order i.e. the Bank can now have the court’s marshals come and remove you, even screaming, and now you still have to go live with your parents. (Actually the marshals do work with you. They’ll explain they have to execute the Writ of Possession and say when they’ll be back to put you out, by which time you should be ready to just hand over the keys, or else…)

So, wouldn’t it be easier to avoid all that?

What you should do when you take out a mortgage is have a plan for when the business deal doesn’t pan out, like you would for a hurricane or a fire. There is no shame in it.

I guess, what I am really saying is, depending on how you handle the situation… you could be Donald Trump!

Good luck.

Yours truly,
Karis Bynoe

Child Maintenance During And After Divorce Proceedings

child-support imageThe duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave their children life, that they might afterwards see them perish… – Blackstone (Commentaries, book 1, chapter XVI)

In Barbados, the Family Law Act Cap. 214 of the Laws of Barbados (‘the Act’) provides for the right to maintenance of a party to a marriage or union other than marriage as well as for the right to maintenance of children of the marriage or of the union. According to the Act, maintenance means “the provision of money, property and services, and includes (a) in respect of a child, provision for the child’s education and training to the extent of the child’s ability and talents. It should be noted that either party to the marriage may apply for maintenance for the child or children”.

According to Section 39 of the Act ““union other than marriage” or “union” means 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”. A child of the marriage, according to Section 3 (1) of the Act, includes a child adopted after the marriage of the husband and wife and a child of both the husband and wife born before their marriage.

Section 51 of the Act states that the parties to a marriage, or union other than a marriage, are liable, according to their respective financial resources, to maintain the children of the marriage or of the union who are unmarried and have not attained the age of 18 years. It is useful to note that the court may also make an order for maintenance with respect to a child who has attained the age of 18 years if the provision of maintenance is necessary to enable the child to complete his education or if the child is mentally or physically handicapped.

Section 54 (3) (b) of the Act provides that the order should specify the period for which it is in force or until a particular day.  Moreover, section 54 (1) states that in determining whether to make an order for maintenance of a child or in determining the period for which the order should remain in force or the amount of any payment to be made under the order, the court should consider the following:

“(i) the income, earning capacity, property and other financial resources of the child,

(ii) the financial needs of the child; and

iii) the manner in which the child is being, and in which the parties to the marriage or union expected the child to be, educated or trained.”

The court should also take into account the following and other factors which are listed under section 53 (2): “the financial needs and obligations of each of the parties; the responsibilities of either party to support any other person; the eligibility of either party for a pension, allowance, or benefit under any Act or rule, or under any superannuation fund or scheme, or the rate of any such pension, allowance, or benefit being paid to either party; the duration of the marriage or union other than a marriage, and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration”.

It should be noted that the decree nisi of dissolution of marriage will not become absolute until the Court is satisfied that proper arrangements have been made for the welfare of the children who are under eighteen years of age.

                                                                                                                         – Kara-Je Kellman