8/26/2014 SHEPHERD v.

TAYLOR - CariLAW Search Results

CariLAW - Case Results

New search | Revise Search | Back to search results | View Selections: 0 items | Permanent Link

Record 78 of 166 records. First | Previous | Next | Last

SHEPHERD v. TAYLOR

Add to List
Citation # BB 1987 HC 35
Country Barbados
Court High Court
Judge Williams, C.J.
Subject Family law
Date June 10, 1987
Suit No. No. 346 of 1986
Subsubject Unmarried couple - Whether "union other marriage" existed within the meaning of
the Family Law Act, Cap. 214, ss. 56 and 57.
Full Text Mr. David Simmons, Q.C. in association with Miss M. Greene for the applicant.
Mr. J. Hanschell for the respondent.

WILLIAMS, C.J.: 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.

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.

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.

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
[Link] 1/4
8/26/2014 SHEPHERD v. TAYLOR - CariLAW Search Results
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.

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.

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 both as
temporary: Main v. Main [1949] 78 C.L.R. at p. 636."

In Saunders v. Saunders (1976) F.L.C. 90 - 096 the view was expressed that
cohabitation in the contemplation of the Family Law Act is regarded as virtually
synonymous with consortium. I will refer to one other case before turning to the case
before me. In Thomas v. Thomas [1948] 2 K.B. 98 Lord Goddard, C.J. said at p. 99:

"Cohabitation does not necessarily depend on whether there is sexual intercourse

between husband and wife. Cohabitation means living together as husband and
wife. As I endeavoured to point out in Evans v. Evans [1947] 2 All E.R. 656
cohabitation consists in the husband acting as a husband towards the wife and the
wife acting as a wife towards the husband, the wife rendering housewifely duties to
the husband and the husband cherishing and supporting his wife as a husband
should. Sexual intercourse usually takes place between parties of moderate age if
they are cohabiting and if there is sexual intercourse, it is very strong evidence - it
may be conclusive evidence - that they are cohabiting, but it does not follow that
because they do not have sexual intercourse they are not cohabiting."

In my opinion these authorities are useful as illustrating the approach to be taken in

deciding issues relating to cohabitation under the Family Law Act, Chapter 214. In
this case, I am required to decide when cohabitation between these parties came to
an end and it seems to me that what I must do is to look at all the circumstances
and determine as a question of fact when the consortium between the parties
ceased. The applicant's evidence is that social and sexual intercourse between
them continued after August 1985. They saw each other on a daily basis, did
shopping together, had lunch together and slept together at night. The respondent
[Link] 2/4
8/26/2014 SHEPHERD v. TAYLOR - CariLAW Search Results
left for England on March 18, 1986 and it was not until then, at the earliest, that there
was a cessation of the relationship which they had had.

The respondent says that on two occasions before July 18, 1985 he had temporarily
left their cohabitation home to stay with his mother. He gives the applicant's infidelity
as the reason. He continues thus:

"13. I then decided to put an end to the matter once and for all. I figured that having
tried to make the relationship work, and having forgiven the applicant on more than
one occasion it was evident that she was not going to change her ways and there
was therefore no point in continuing the relationship.

14. I therefore moved out of the house around the 18th of July, 1985 and went to live
with my mother, having made up my mind once and for all that my relationship with
the applicant was over and that I was not living with her any more.

15. From the 18th of July 1985 when I moved out of the house for the last time,
cohabitation between us ceased. As far as I was concerned the relationship which
we had in the past no longer existed and we have not lived together since that date.

16. Sometime in early August I returned to the house at Lodge Terrace and removed
all of my possessions from the house. I also went to my attorney-at-law......and
instructed him to serve a notice to quit on the applicant which he did.

17. Sometime towards the end of August I again returned to the house and
unscrewed the water heater and bath connection from the wall and turned off the
electricity supply to the house by tripping the electric switches as I wanted the
applicant out of the house. I later learned that the applicant moved out of the house
the next morning taking all her possessions with her."

His story is that he did see the applicant thereafter but not on a daily or regular
basis. He had lunch with her on two occasions and she once bought groceries for
him. He did have sexual intercourse with her on one occasion when she turned up
at his sister's house in the very early hours of one morning and asked if she could
sleep there since she was very tired and did not want to drive home. He had
intercourse with her not with any intention of resuming their relationship but casually
because he knew she would allow him to. They were living their own separate lives
independent of each other.

They cannot both be speaking the truth. I tend to believe the respondent. It seems to
me incredible that a man would force a woman to leave his house by giving her
formal notice to quit and thereafter disconnecting utility supplies, and would then
regularly by night light his way by torch for the purpose of taking the same woman
into the house for sexual intercourse. I reject the applicant's evidence that after
August 1985 their relationship continued in much the same way as when they were
both living under the same roof. It seems to me that in the context of a union other
than marriage within the contemplation of the Family Law Act, continuance of
cohabitation or consortium involves an intention on the part of both parties to
continue the cohabitation or consortium. In this case there is cogent evidence of the
respondent's intention to discontinue their relationship which had come under
strain in April to May 1985. It seems immaterial whether the stress was caused by
the applicant's infidelity or by the respondent's envy of the applicant's car. The
respondent believed that she was unfaithful and on two occasions left the
cohabitation home to stay with his mother. On the third occasion he moved some of
his things with him, then gave her notice to quit and later forced her to leave by
disrupting the utility supplies. As against all this there is the incredible story, based
on her word of mouth, that life between them continued as usual.

There is evidence that when the respondent later let the house out, that he would
give her part of the rent. That can support an inference that he acknowledged that
she had an interest in the house. But the application is under section 56 and 57 of
[Link] 3/4
8/26/2014 SHEPHERD v. TAYLOR - CariLAW Search Results
the Family Law Act and therefore the applicant has to prove a marriage or a union
other than marriage within the meaning of the Act.

There is evidence too of the applicant having on September 3, 1986 sent £100 to the
respondent when he was in London. But what to my mind is of more significance is
that the respondent had been in England since March 18, 1986 and there is no
evidence of any letter or communication between them.

In all the circumstances and in the light of the definition of "union other than
marriage" or "union" in the Act I am constrained to hold that there is no union shown
since there was no cohabitation within the year immediately preceding the
institution of the proceedings.

Application is dismissed.

New search | Revise Search | Back to search results | First | Previous | Next | Last

[Link] 4/4