Under what circumstances is a person entitled to inherit from their deceased partner?

A few days ago thinheritance pic 1e Caribbean Court of Justice (“the CCJ”), Barbados’ final appellate court overturned the decision of the Barbados Court of Appeal in the Albert Anthony Selby v Katrina Smith case, thereby allowing the cohabiting partner of the deceased to inherit from him.

In February of this year, the Court of Appeal delivered its judgment in that case and decided against the deceased’s partner, Katrina Smith (“Ms. Smith”). The matter arose because both the deceased’s brother and Ms. Smith, applied for letters of Administration of the deceased’s estate.

The Succession Act Cap. 249 of the Laws of Barbados (‘the Act”) sets out the line of priority for those who may inherit from a person who died without leaving a will. In essence, the line of priority is as follows: the spouse and children of the deceased, the deceased’s parents, then his siblings.

The deceased was unmarried at the date of his death, he had no children and his parents died before him. Ordinarily, next in line to benefit from his estate would be his brothers and sisters. However, the deceased was living with a single woman, Ms. Smith, immediately preceding his death. Notably, section 2(3) (a) and (b) of the Act provides that

“For the purposes of this Act, reference to a “spouse” includes: (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;

 (b) 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.”

The deceased was married for a portion of the five year period that he was living with Ms. Smith. The CCJ, like the Court of Appeal disagreed with the trial judge that the meaning of single included a married man who was separated from his wife.

However, the five-judge panel, presided over by the President of the CCJ, the Right Honourable Sir Dennis Byron, concluded that “the assessment of marital status for the purpose of rights under the Act is made immediately preceding the death of the deceased”. Consequently, Ms. Smith has the right to inherit from the deceased as his spouse since he was single immediately preceding his death and since she lived with him as his wife for at least five years immediately preceding his death; notwithstanding that he was not single for that entire five year period.

                                                                                                     – Kara-Je Kellman

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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

“Do I Have To Go To Court?”

young man sitting thinking, contemplating - isolated on white

It depends.

If you are asking this question because you have started a matter in Court then you should definitely go to the court hearings, even if you have a lawyer. Your attendance at Court signifies that you are interested in the matter and it also shows respect for the Court and its proceedings. Further, you should attend the sessions in the event that the Court wishes to solicit any information from you which might not be within the personal knowledge of your attorney. If you are representing yourself you should not think twice about going to Court – just go!

If someone has initiated an action against you, the answer is still yes – for all of the reasons stated above.

If you are defending a criminal charge in Court then you should definitely turn up to Court on the specified date, unless you like the idea of being arrested. In this case, non-attendance is not harmless! In fact, the magistrate or judge may issue a warrant for your arrest. Your non-attendance at Court may be even more disadvantageous to you if you were on bail. The judicial officer may rescind bail and remand you into lawful custody since the main condition of bail is to appear at Court on the specified dates and times for the “calling” or hearing of your case.

If you are the virtual complainant in a criminal matter, you risk having your matter thrown out if you do not show up at Court for the trial of the matter.

You may be asking this question because you are considering your options for relief. The parties can assemble and with the aid of their attorneys begin negotiations with the aim of coming to an amicable agreement. Moreover, if you initiate a civil action at Court, at the first hearing or at some subsequent hearing, the Court may refer the matter to court-annexed mediation. The parties may also ask the Court to exercise that option. This process is intended to be less time consuming and allows for free discussion of issues with the goal of coming to an agreement with the professional assistance of a qualified mediator.

– 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

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

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

Bail In Barbados – Did You Know?

jailIn Barbados, a person charged with an offence or convicted of an offence is entitled to bail, subject to the Bail Act Cap. 122A (“the Act”). The fundamental test in determining whether to grant bail is whether the accused will return to court for the determination of the matter. The Court also takes into account other factors when exercising its power to grant bail or not to grant bail.

According to Section 5 (2) of the Act, the Court must take into consideration relevant factors including the following:

(a) “the nature and seriousness of the offence or default, and the probable method of dealing with the defendant for it;

(b) the character, antecedents, associations and community ties of the defendant;

(c) the defendant’s record as respects the fulfilment of his obligations under previous grants of bail;

(d) the strength of the evidence of his having committed the offence or having defaulted, except where the defendant’s case is adjourned for inquiries or a report; and

(e) the length of time the defendant would spend in custody if the court were to exercise the power conferred on it by section 218A of the Magistrate’s Courts Act” (power to remand the defendant in custody).

According to Section 5 (1) of the Act, the Court may refuse to grant an accused person bail if it believes that the accused person would fail to surrender to custody; reoffend or interfere with witnesses. Further, the Court may not grant bail if it is satisfied that the accused should be kept in custody for his own protection; for the protection of the community or if he is a child or young person, for his own welfare. The Court may also deny to grant bail to a person who is charged with an offence alleged to have been committed while on bail.

The Court may grant bail with conditions. The Court may, before releasing the defendant, require him to provide a surety to ensure his surrender to custody. Further, the Court may require a defendant to surrender his passport, report to a police station on appointed days and at appointed times, order the defendant to comply with any requirement to ensure that: the defendant surrenders to custody, does not commit an offence while on bail, does not interfere with witnesses or otherwise obstruct the course of justice or, makes himself available for the purpose of enabling inquiries or a report of any medical examination to be made to assist the court in dealing with him for the offence. If a defendant who is on bail fails to surrender to custody, the Court may issue a warrant for his arrest.

It is important to note that a magistrate does not have the power to grant bail to a person accused of murder, treason, high treason or an indictable offence under the Firearms Act. A person accused of the above offences may only be granted bail by a High Court Judge.

Where bail is denied, the defendant may reapply for bail at the Magistrate’s Court and may also apply for bail at the High Court. If the Court does not grant bail to a person who has been charged with an offence punishable by imprisonment, the accused person will be remanded until the determination of his case or until bail is subsequently applied for and granted.

                                                                                                                                            -Kara-Je Kellman