A Comparative Study on the Practice of Family Law in the United States and the Commonwealth Caribbean

Daniella Williams

Abstract

Black's Law Dictionary358 defines a family as a collective body of individuals who reside in one house and under one head or administration. According to one scholar, family is often based on marriage and blood links.359 Historically, there has been difficulty in defining ‘family’ for the purposes of the practice of Family Law due to differences in its perception across societies and cultures. As a result, the global evolution of Family Law has been astounding. However, the issue still stands; is the pace of change necessary for the law to reflect and serve the requirements of modern societies being met? More specifically than the general application of Family Law- the legal recognition and consequences of the institution of marriage and the application of divorce law in the United States and the Commonwealth Caribbean Region are compared in this essay. Although the fundamental changes in the family are universal, societies develop at various rates and require different ways of dealing with commonly shared circumstances surrounding marriage and its breakdown due to cultural considerations. This essay examines how the systems now in place in the US and Caribbean might be enhanced by borrowing and taking cues from one another.

I. Introduction

There are many similarities between the practice of Family Law in the United States and the Commonwealth Caribbean. Both regions have a common law tradition and similar legal systems heavily reliant on court precedents in formal adjudication.360 However, there are some critical differences between the two regions. In the United States, family law is primarily governed by state law. Each state has its own unique set of family laws. This can make it difficult to compare the laws of different States. In the Commonwealth Caribbean region, family law is governed by a combination of English common law and local customary law. This structure makes it easier to compare the laws of different countries in the region. Another key difference between the two regions is how divorce is handled. State courts typically manage divorce cases in the United States. The Matrimonial Division of the High Court, a specialist court, handles divorce cases in the Commonwealth Caribbean area. Only one court has authority over all divorce-related issues.361

More than any other field of the law, Family Law is influenced or informed by current social and cultural values. The norms and values that support, define, and shape familial relationships in Commonwealth Caribbean nations are progressively being incorporated into the laws that control those relationships.362 According to Herring, Family Law is “...the law governing the relationships between children and parents, and between adults in close emotional relationships.”363 The latter subgroup outlined in this definition will be addressed. The research focuses on family law practice in the United States and the Commonwealth Caribbean region. It is comparative and looks at the similarities and differences in family law practice in these two regions.

This paper posits that the United States and the Commonwealth Caribbean may benefit from adopting certain principles one from the other in applying Family law. An investigation of the pillars on which the practice of Family Law as it relates to the recognition of the institution of

360 Toni M. Fine, ‘American Legal Systems: A Resource and Reference Guide’ LexisNexis (1998)

<https://www.lexisnexis.com/en-us/lawschool/pre-law/intro-to-american-legalsystem.page#:~:text=The%

20American%20system%20is%20a,of%20the%20matter%20before%20it.> accessed 27 October 2022.

361 ‘Family Court Overview’ (Trinidad and Tobago Law Courts, August 2020)

<https://www.ttlawcourts.org/index.php/2020-01-28-18-30-04/2020-01-28-18-53-05/family-courtoverview > accessed 15 November 2022.

362 K Nunez-Tesheira, Commonwealth Caribbean Family Law: Husband, Wife and Cohabitant (Routledge 2016) 2.

363 Herring (n 361) 10.

Marriage and its dissolution stands in New York and New Jersey in the United States as opposed to Trinidad and Tobago, Jamaica, and Barbados in the Commonwealth Caribbean supports this position.

In demonstrating this thesis using the relevant statute, case law, and academic sources and opinions, this essay explores marriage, its definition, the requisite formalities for validation, and the recognition of marriages outside of Christian and civil bounds, the legal age to marry and strides taken to outlaw child marriages in the US and Caribbean. The merits and demerits of prenuptial and postnuptial agreements will be discussed, as well as domestic partnerships and the legal consequences surrounding unions other than marriage. In the event of a divorce, the court processes for the maintenance award and the allocation and division of marital property will be examined. The impact of cultural and social norms on family law practice will be discussed, along with recommendations for the future of family law in each region.

II. Marriage

Marriage is, from a legal standpoint, a private contract between two people that establishes reciprocal rights and duties that last for as long as the union does. The local matrimonial statute and the common law of the relevant jurisdiction control these rights and obligations. In Radmacher v Granatino,364 Baroness Hale said that, of course, a marriage is a contract in that both parties must consent to enter into it and once entered, are bound by its legal ramifications. But it has prestige as well. This implies two ideas. The parties are not free to pick and choose the legal consequences of their marriage contact - they agree to the terms that the law of the land specifies. Second, their marriage has legal repercussions for the state and citizens. The solemnisation of marriages comprises going over the specifics of who is permitted to marry and be married, when and where marriages are allowed to occur, and what formalities are required to ensure a union is valid.

Hyde v Hyde and Woodmansee365 defined marriage as “the voluntary union for life of one man and one woman to the exclusion of all others.” This is the definition accepted throughout the Caribbean. However, petitioners in the US case of Obergefell v. Hodges366 sought a declaration of freedom to contract to marriage between people of the same sex and the recognition of their unions as legal under the same rules and regulations as marriages between people of opposite sexes. It was determined that since same-sex couples have the freedom to marry in every state, there is no good reason for a state to reject a valid same-sex union that was performed. In the Caribbean, laws on this topic are old-fashioned, as the legal basis is heavily influenced by Victorian era Christian doctrine. To keep up with evolving societal trends, Caribbean governments must consider the legalization of same-sex unions. This decision would likely be motivated by several factors, including the principles of human rights and equality, the promotion of social progress and inclusivity, the economic and tourism benefits it would bring, the need to retain talent and prevent brain drain, and the international obligations and pressures to uphold LGBTQ rights. The law must adapt to the changing attitudes of Caribbean people who are beginning to embrace same-sex marriages. By permitting same-sex unions, governments can demonstrate their acceptance of diverse partnerships and their willingness to adapt to changing circumstances, thereby fostering a more inclusive and forward-thinking society in the Caribbean.

In New York, like most States, marriage is a primarily secular undertaking. However, contrary to other States like Nevada, for example, where it is easy to get married, and there are few to no requirements for preparation, there are formalities to be followed. In addition to meeting certain age, consent, and ability requirements to be able to wed legally, prospective spouses should be aware of the statutory provisions surrounding marriage.367 One of the following people must officiate at a marriage ceremony: the current governor, the village or town's mayor, a marriage officiant chosen by the village or town council or the common municipal council, a judge or justice from one of the courts listed in the statute, a magistrate from a town, or county, a clergyperson or pastor who has received official permission from the presiding church body to officiate marriages. There is no specific form or ceremony required. The couples must, however, express their desire to become lawful spouses in front of a magistrate or clergyperson who has been permitted to execute the proceedings and at least one other witness. A Marriage license must have been obtained. Before making the union official through the ceremony, all states require the parties to a marriage to get a marriage license from the local clerk's office. You must seek a permit from the clergy member or magistrate who will officiate within 60 days if you wish to get married. A marriage license is simply the legal agreement between two people that involves the blending of finances and the creation of a family. However, if prenuptial agreements are included, the precise terms of property allocation and other eventualities should the marriage end in divorce may differ. When requesting a marriage license, specifics about prior unions must also be included. Without a court of record order, a marriage cannot be performed fewer than 24 hours after the marriage license has been issued. One of the following documents must be presented by each party to the marriage as proof of age (Birth certificate, Baptismal record, Naturalization record, or Census record) and identity (Driver's license, Passport, Employment picture ID, or Immigration record). In New Jersey, much like in New York, Marriage is secular. This speaks to the culture and societal norms in the US, where religion is not heavily emphasised. Most marriages are civil, with few incorporating a religious ceremony. The specific prerequisites for getting married and having a valid marriage in New Jersey are outlined in the statute.368 Despite similar laws in other states, New Jersey has special criteria for marriage licenses. There are no residency requirements and there is no requirement for blood testing or physical exams before a marriage permit can be issued. A licensing officer or another individual responsible for awarding the license does, however, offer details on hereditary illnesses (such as Cooley's anaemia and Sickle Cell anaemia) and the locations of testing centres. Before getting married, you must wait 72 hours after receiving the license from the Local Registrar. The parties must provide identification proof a driver's license, passport, State, or Federal photo ID as well as proof of residency and their social security card or number when applying for a marriage license. A witness who is at least 18 years old is also necessary. It is valid up to thirty days after the issue date. The Marriage Licence is valid throughout the State as long as one of the parties to the marriage is a resident. If neither party resides in the state, it will only be valid in the municipality it was granted. Like in New York, parties must submit to the court with their divorce decree if there was a previous marriage. Common law marriage is not permitted in New Jersey, but all states, including New Jersey, have legalised same-sex unions due to the U.S. Supreme Court decision. This right was codified in New Jersey in 2021. A marriage by proxy occurs when a person with a power of attorney marries on behalf of an absent spouse. The state of New Jersey permits members of the National Guard or the Armed Forces who are deployed abroad and participating in a conflict or war (and unable to attend) to get married by proxy. Judges of a Federal District Court, US magistrates, Municipal Court Judges, Superior Court Judges, Tax Court Judges, Retired Superior Court Judges, Judges of the Superior or Tax Court who have resigned in good standing, any Mayor/Deputy Mayor or Chairman of any Township

Committee, Village President of New Jersey, County Clerks, and every minister of every faith are permitted to perform marriage ceremonies.

In Trinidad and Tobago, Barbados and Jamaica, much like in most Caribbean countries, there are formalities to be followed when getting married and in ensuring the solemnisation of a marriage as well. The Preliminaries for marriage are set out in Part 4 of the Barbados Marriage Act. The Act specifies the steps that must be taken before a Christian or Civil marriage can be solemnised. Marriage is perceived as being less secular in the Caribbean than it is in the United States due to cultural and lifestyle indicators as well as the fact that, generally, Caribbean people are comparatively more devout. Many Caribbean countries have deeply ingrained cultural customs and ideals that influence how they see marriage. With Christianity being the predominant religion, the Caribbean area is renowned for its tremendous religious impact. Contrarily, in the United States, there is a tradition of secularism and the separation of church and state which has contributed to the conception of marriage as a more secular institution. In the Caribbean, marriages are often considered a union between two families rather than just two individuals. As such, there is typically more emphasis on the role of family members in the wedding ceremony and celebrations. Caribbean weddings are often much more lavish affairs than their American counterparts. Marriage in the Caribbean is often seen as a way to strengthen social ties and forge new relationships rather than simply as a legal contract.

In the case of Collett v Collett,369 the wife requested the annulment of the marriage because Sections 2, 3, 4, 7, and 9 of the Foreign Marriage Act of 1892 had not been followed at the marriage ceremony. The case establishes that only where formalities are mandatory if these provisions are ignored, is the marriage void. Written notice of the intention to marry must be given to the marriage officer in the prescribed form that includes the following information about the couple: (a) their proper names, surnames, ages, and places of residence; (b) whether either of them and if only one, which of them, has previously been married; and (c) any other information that may be relevant to the marriage.370 It is noteworthy that Notice is not a requirement in Muslim or Hindu marriages, so parties would not need to give the same if they were of either of those religions. Marriages must be openly and audibly announced during religious service on three successive Sundays within a time frame of no longer than three months for it to be considered to be on the verge of solemnisation under the authority of published banns set out in the Act. They must regularly attend religious worship at a specific church or at that church.371Under the Hindu and Muslim Marriage Acts in Trinidad and Tobago, Guyana, and Jamaica, there is no necessity to post banns. Marriage licenses are dealt with in Section 20 (1) of the Barbados Marriage Act. It states that the Minister or another individual designated by the Minister in writing as authorised to issue marriage licenses must issue marriage licenses. Part (2) says that an application for a marriage license must be made in writing to the Minister using the prescribed form and include the following information: (a) the names and last names of the parties intending to wed, their ages, their professions, and whether they are each single, widowed, or divorced; (c) the location and the marriage officer or magistrate, as applicable, who will officiate the wedding. The application must also include a statement from the parties planning the wedding that no legal obstacles are standing in the way of their union. Mark must be warned that Part (4) specifies that both parties must sign an application under paragraph (2), and it must be supported by any supporting documentation the Minister deems necessary. According to Section 22, a marriage license is null if three months have passed after its issuance without the marriage to which it refers to having been solemnised. The parties wishing to wed may not be married by license until a new marriage license is obtained in compliance with Section 20. Generally, a religious ceremony may be added to a civil marriage by submitting the couple's marriage certificate to a minister of religion, providing that they were wed in front of a civil marriage officer or the appropriate public official. The religious minister can then choose whether to lead the religious event. The legislation of Trinidad and Tobago does not include this clause.

The acceptance of weddings outside civil and religious boundaries is strongly emphasised across the Caribbean, particularly in Trinidad & Tobago. The Muslim Marriage and Divorce Act of 1961, Hindu Marriage Act of 1945, Orisa Marriage Act of 1999, and Miscellaneous Provisions (Marriage Act) of 2017 are examples of laws that reflect this. These Acts recognise relationships other than legally recognised Christian or civil marriages and create allowances for respecting cultural diversity in society. The Caribbean is a melting pot of cultures. While the United States may not be as diversified, more can be done to incorporate the acceptance of different cultures in society. A recent study showed that seventy Trinidad, the world’s population, will live in cities by 2050.372 The study also revealed that half the world’s population would be of non-Western origin at that point. These two facts highlight the need for increased understanding and acceptance of other cultures. Due to constitutional principles, cultural diversity, and the promotion of human rights and equality, it is crucial for the United States to enter the twenty-first century with respect for various religions and ways of life. However, it is important to note that this respect does not signify a rejection of critical thinking or an endorsement of harmful behaviour. Instead, it recognizes that people have the right to hold different beliefs and practices if they are within the bounds of protecting the rights and well-being of others.

371 Barbados Marriage Act 1979, § 16(a).

372 ‘Half of global population will live in cities by end of this year, predicts UN’ ( United Nations, 28 February 2008) <https://news.un.org/en/story/2008/02/250402> accessed 10 November 2022.

III. Legal Age to Marry

Only actions taken by people who can create the necessary intent to carry out the prescribed conduct are permitted by the law. There are two acknowledged definitions of ‘capacity’. First, there is maturity, or the objective measure of the capacity to create a legal intent, and second is mental capacity, or the ability to develop the intent to conduct an act 373 A child's capacity to formulate the right intent is said to mature as they reach a specific age. This age indicates that a person who lacks the mental ability or maturity to appreciate the repercussions of their acts entirely cannot be held legally responsible.

The ‘age of majority’, typically 18 years old,374 is the age at which every individual is regarded as an adult. Generally, this is the age at which persons are free to marry. In the leading case of Pugh v Pugh, 375 because the marriage was illegal under the law in effect in the husband's country of residence, England, due to the wife's age, the court had no trouble pronouncing it null and void. According to a rule set forth by an Act of 1929, no one may legally engage in a marriage with a girl who was under the age of sixteen if they were domiciled in England. One must consider that;

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during the marriage, and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses.”376

In the United States, some states allow adolescents to become ‘emancipated’ if they support themselves while living separately from their parents. This emancipation indicates that the juvenile will be considered an adult for legal reasons. While laws may occasionally specify the minimum age for majority or emancipation (NY Social Services Law, Section 83 (a)),377 common law is generally used to make this determination, as well as any other resolution surrounding matters of emancipation. For instance, in the Delaware case of Christenson v. Tanner21 , according to the family court, the daughter's marriage had allowed her to become independent of her parents' care, custody, and control. In Delaware, the common law applied unless otherwise specified by statute. Delaware accepted the common law rule that the marriage of a minor had the effect of emancipating the minor since the legislature had not passed any laws addressing the issue. The family court was persuaded by this reality, as well as legislation and case law from other states, such as New York and New Jersey, that the marriage of a minor released the child from parental care, custody, and authority.

A person as young as 14 or 15 can get married in the US in states with no minimum age limit. This is possible if the minors receive their parents' permission. New York is not one of those states though, where anyone under the age of 14 is not allowed to marry in New York. The legal age for marriage (without consent) has been raised from 14 to 18. It is illegal to marry anyone where one of the participants is under the age of 18. But with the approval of the New York Supreme Court or Family Court, a 17-year-old can get married.

As maturity differs from person to person, governments must establish a boundary someplace, even if it is somewhat arbitrary, to achieve legal competence. In contrast to some jurisdictions with a specific age at which a juvenile may become emancipated, New Jersey law does not have a set age; instead, it is determined on a case-by-case basis. The legislation also addresses issues including a person's capacity to contract, their capacity to bring a lawsuit, and the age at which they can provide their permission for medical care

378

There are age restrictions on marriage in several places that permit children to wed under specific conditions. However, as of 2018 New Jersey introduced a minimum age of 18 with no exceptions. New Jersey became one of the first states to outlaw child marriage. In several places in the US, child marriages are still permitted. This remains law despite the fact that several studies have revealed that child marriages are linked to several unfavourable consequences.

377 A grant of public assistance or care may be made to an emancipated minor in his own right if he is otherwise eligible, for this purpose, emancipated minor means a person over 16 years of age who has completed his compulsory education, who is living separate and apart from his family and is not in receipt of or in need of foster care. 21 980 A.2d 1059.

378 NJ Stat. § 37:1-6

These include issues with one's bodily and mental health, poverty, and illiteracy. Child marriages are currently prohibited in twenty-seven US States as of 2019.

The Caribbean has seen a significant decline in child marriages over the past few years. This is due to several factors, including increased awareness of the adverse effects of child marriage, changes in social norms, and improved access to education and economic opportunities for girls. Abolishing child marriages in the Caribbean has positively impacted the lives of girls and young women in the region. It has helped to reduce the prevalence of early pregnancy and maternal mortality and has improved girls’ access to education and economic opportunities.

In the Caribbean, Trinidad and Tobago was the trailblazer, much like New Jersey in the US. The practice of child marriage was abolished with the adoption of the Miscellaneous Provisions (Marriage) Act 2017; only one other Caribbean Country, Antigua and Barbuda, has since done the same. Since Trinidad and Tobago has raised the legal age of marriage to eighteen, there is no longer a need for consent, authorisation, or dispensing with consent. A person cannot get married if they are under the age of eighteen. Except for Trinidad and Tobago and Antigua and Barbuda, the various other Commonwealth Caribbean nations have varying laws governing who can agree to an underage person getting married.

In other Caribbean jurisdictions party to the United Nations Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, 1962379, inclusive of Barbados and Jamaica, anyone who has attained the minimum age required can marry, and no consent is needed. Parties may get married without the approval of anyone else if they are at least eighteen years old or younger but are a widow or a widower. An individual under the age of majority may receive consent where they must get married. In Anguilla, Barbados, Dominica, Grenada, Guyana, Jamaica, Montserrat, St. Kitts and Nevis, and St. Lucia, the specified age is sixteen years.

Although the United States is a signatory to The United Nations Convention on the Rights of the Child, it has not ratified The UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979380 but many Caribbean Commonwealth

379 Article 2

“States Parties to the present Convention shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses.”

380 Article 16(2): The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

Countries have. An increase in the pace of change in the laws surrounding child marriages and raising the legal age of consent to eighteen years old is necessary. According to research conducted by the United Nations, by 2030, more than 150 million girls will be child brides worldwide if action is not taken.381 The two regions seem to be on par here, as they are both only in the beginning stages of the mass abolition of the marriage of minors within their societies. Much like New Jersey and Trinidad and Tobago, the other states in the US and countries in the Caribbean should follow suit. Until then, governments should continue to work with civil society organisations to create awareness about the harmful effects of child marriages and the importance of delaying marriage until adulthood.

IV. Prenuptial and Postnuptial Agreements

Marriage is a legal contract. Once married, a person's property is commingled, and additional rights and obligations arise. However, prenuptial agreements382 can be used to approach marriage practically. Postnuptial agreements function in substantially the same way. These legally binding agreements, recognised and upheld by New York courts, place certain restrictions on the marriage contract, and often impose financial safeguards such as alimony payment caps or the designation of particular assets as ‘separate’ and so exempt from distribution in the event of divorce28. In the United States, there is the Uniform Premarital Agreement Act 1983; a multi-state statute passed to specify the circumstances under which prenuptial agreements should be honoured. The legislation lets parties pick which State's marriage laws will apply to their union. Although New York has not ratified this Act, prenuptial agreements are upheld by New York Courts if they are fair and entered into voluntarily, where there is full disclosure of financial information, where both parties have independent counsel and the document has been duly acknowledged (witnessed by a third party).

Prenuptial and Postnuptial agreements are governed by state-specific regulations, which outline the content that may be included and the formal criteria for one to be enforceable. Prenuptial agreements are known as premarital arrangements (and postnuptial agreements are known as

381 ‘Child Marriages’ (UNICEF 2019) <https://www.unicef.org/protection/childmarriage#:~:text=Globally%2C%20the%20prevalence%20of%20 child,likely%20to%20remain%20in%20school> accessed on 5 October 2022.

382 Uniform Premarital Agreement Act § 52B-2.

(1) "Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. (2) "Property" means an interest, present or future, legal or equitable, vested, or contingent, in real or personal property, including income and earnings. 28 New York Consolidated Laws GOB § 3-303 post marital agreements) in New Jersey and are permissible under a civil union. According to State law, a prenuptial agreement must be in writing and signed by both parties, and it only takes effect after the couple is married. Prenuptial agreements in New Jersey may contain a range of clauses, but they cannot include clauses that "adversely affect the right of a child to support." Only a formal document signed by the couple can revoke or modify a prenuptial agreement.383

A contract established between individuals to get married continues to be valid after the wedding. A prenuptial agreement might cover each spouse's property-related rights and duties and the authority to govern and administer property, designating separate property and ensuring that certain assets are not commingled after marriage. It may consolidate marital property and determine how this property would be divided in the case of a divorce, death, or any other event. Often, after marriage, certain assets that were previously regarded as being under distinct ownership come to be treated as jointly held property. The agreement may also outline the ownership rights to and distribution of a life insurance policy's death pay-out. Guidelines for support in the event of divorce or determining which spouse is financially responsible for the other during the marriage and which party would thus be responsible for paying spousal maintenance upon the dissolution of the marriage is also considered.

In the Caribbean, prenuptial and postnuptial agreements are generally not a part of the practice of family law. They are generally not legally binding and are only recognized in Jamaica (and in the Bahamas to a lesser degree). Although the Property Rights of Spouses Act 2004 does not use the phrase "Prenuptial Agreement" (which is an American term), it does have provisions in Section 10 that allow spouses to enter into a contract outlining how their assets should be divided in the case of a divorce, death, or separation. Much like in the US, prenuptial agreements are permitted in Jamaica only if they are in writing, legally required to be witnessed, and both parties have separate legal representation unless the court determines that doing so would be unfair.384

The inclusion of a prenuptial agreement in a couple's affairs has benefits and drawbacks. Although establishing a prenuptial agreement might be emotionally taxing, it can safeguard your assets in the case of a divorce. This is particularly crucial if you are starting a second marriage or have substantial assets. The financial goals of each spouse might be made clear in a prenuptial agreement. Future arguments and conflicts may be avoided as a result. Nevertheless, drafting a prenuptial agreement might take a long time. If you are getting married soon, this can be an issue. Hiring an attorney to draft a prenuptial agreement can also be expensive. Nevertheless, the pros outweigh the cons. A prenuptial agreement can give peace of mind knowing that assets are protected. This can be especially important in what is known as big money cases. Generally, the enforcement of a prenuptial agreement would make the process of litigation easier on the parties in the event of divorce.

Discussions surrounding Prenuptial agreements (and, by extension, postnuptial agreements) are becoming increasingly common. These documents are a way for couples to protect their assets in the event of a divorce. The Caribbean is a region with a high divorce rate, and prenuptial agreements could provide some stability for couples.

V. Domestic Partnerships

Domestic partnerships are two people's legally recognized unions that offer some of the same rights as marriage, such as time off to care for a partner, but also taking specific circumstances into account. Before Obergefell v. Hodges, for instance, same-sex couples in states that forbade the union of same-sex partners occasionally registered as domestic partners in order to benefit from the some of the legal advantages of marriage. Several states still offer alternatives to marriage even if same-sex unions are no longer prohibited by the law and are thus not limited to solely domestic partnerships. Domestic partnerships, however, may be desired by persons for a variety of reasons in jurisdictions where they are still an option, such as non-romantic partners who rely on one another's business and financial resources. State laws governing domestic partnerships vary, and not all states approve of them. Nevertheless, certain municipalities and counties may do so even if their state does not. In New York, candidates for domestic partnerships must meet criteria that are very similar to those for marriage. In New Jersey, a civil union, domestic partnership, or marriage can constitute a relationship that is legally binding. Each of these agreements does, however, have some limitations to qualification.

A person who has entered into a domestic partnership under U.S., state, local, or foreign law, or who is legally designated as the beneficiary or covered individual under another person's employment benefits or health insurance is referred to as that other person's "domestic partner" in New York State. Moreover, they have to be listed as a domestic partner.385 To be eligible to create a domestic partnership, each partner must be at least 18 years old and a resident of the county or city where the application is being made. The parties must not be married or related by blood. The applicants must be engaged in an intimate, committed relationship, have been companions for six months, and at no time during that time period may either of them have participated in another domestic partnership. The application process is broken down into three phases. To verify their eligibility to form a domestic partnership, the parties must swear to their eligibility via affidavit. Each city or county clerk has a different format and procedure. Like marriage license applications, the applicants must appear in person at the clerk's office, and both partners must be present to file an application. Third, both partners must sign the agreement. The clerk's office will then notarize the application. The parties are then granted a number of privileges, including access to health benefits provided by specific cities such as Albany and Rochester, eligibility for benefits similar to those offered to married couples alone, such as health and life insurance, death benefits, and other similar benefits, family leave for child care and mourning, visitation in hospitals, jails, and other facilities run by New York State, added as a family member to a rental agreement, access to health benefits offered by specific cities.

When the Domestic Partnership Act (DPA) first became effective in New Jersey in July 2004, it permitted same-sex couples older than 18 and opposite-sex couples older than 62 to register as domestic partners. The DPA was modified to only be accessible to couples (whether samesex or opposite-sex) who are older than 62 years old after the New Jersey Civil Union Act was passed in February 2007. Couples under 62 who formed domestic partnerships before February 2007 and those who did so outside New Jersey are also covered by the DPA. Applicants must submit affidavits of Domestic Partnership and the necessary fees to a local registrar of vital statistics. A couple may register as domestic partners in New Jersey if they are not related by blood or by marriage, up to and including fourth-degree consanguinity, and they are both beyond the age of 62. Further, if they dwell together in New Jersey (or another state), one applicant must be a participant in a New Jersey retirement system). Both parties must be equally responsible for each other's welfare and basic living costs; there must be a committed relationship of mutual care. Neither partner can have legally terminated a domestic partnership within the previous 180 days. Neither partner can be a part of a marriage, civil union, or marriage or domestic partnership with anyone else.

A civil union is comparable to marriage in New Jersey law. Gay and lesbian couples regrettably do not receive the same federal advantages and protections as heterosexual spouses since the federal government does not recognise civil unions. And when they visit, reside, or work in other states, they might face legal issues. In New Jersey, it is thought that to give same-sex couples all the rights and privileges that married heterosexual couples have, the Domestic Partnership Act's protections should be expanded to include civil unions between same-sex partners. The New Jersey Supreme Court's recent landmark ruling in Lewis v. Harris386 , wherein the Court found that the State Constitution's equal protection guarantee was broken by statutorily denying committed same-sex couples the same rights and benefits as their heterosexual counterparts, set forth the constitutional mandate that the Legislature must abide. This is the intention of the Legislature. According to the Court, there are two ways the State might satisfy this fundamental obligation. It can either change the marriage legislation to include same-sex couples or adopt a parallel statutory framework with a different name under which same-sex couples would not only benefit from and shoulder the duties of civil marriage but also enjoy its rights and privileges. The Legislature decided to create civil unions by expanding the definition of marriage under the existing law to include same-sex couples. By granting same-sex couples the same rights and benefits as heterosexual couples who decide to be married, the Legislature is continuing its longstanding tradition of ensuring equality under the law for all New Jersey residents.

Although New Jersey is very progressive, as seen concerning its outlawing of child marriages and the recognition of same-sex marriages, like New York, New Jersey does not recognise common law marriages. A common-law marriage occurs when a pair cohabitates and portrays themselves as husband and wife. They never held an official ceremony recognised by their state of residence or the Federal Government, nor did they get any official legal documents. In New Jersey, this prohibition of Common Law Marriages was, however, not the case before 1939 when this type of arrangement was legal. Has New Jersey taken a step back? Not everyone wants to get married in today's society for practical and personal reasons. Because of this, some people decide against getting married and instead cohabitate. Some couples may prefer cohabitation to marriage since it gives several partners a different method to bind their relationships without being wed.

Cohabitation is a "mutually supportive, close personal partnership in which a couple has assumed obligations and rights often associated with marriage or a civil union" cohabitation legislation in New Jersey387. It is impossible to "officialise" cohabitation. You must either be married to each other or get into a domestic partnership if you want to enjoy certain legal benefits with your spouse, such as the tax reductions or health care provisions frequently connected with marriage. However, younger opposite-sex couples normally must legitimise their union through marriage if they desire legal advantages for their relationship because opposite-sex people under the age of 62 cannot have a domestic partnership with one another. While common law marriages are sometimes thought to be related to how long a couple has been together, this is not the case. Seven years together often comes to mind when discussing a common-law marriage in the United States. However, most states that recognise common law marriage still see a year of cohabitation and intimacy as sufficient time. The timing of it is entirely up to the couple's choosing, just as in a real marriage.

Common law marriages are no longer recognised in New Jersey. Only common law unions formed before 1939, when New Jersey modified its rules, would still be recognised.

In the Caribbean, there are two types of non-marital unions recognised by law, one of which is the cohabitational relationship. Within the Caribbean context, some couples may live together without marriage, while others may be in committed relationships but choose not to live together. This arrangement is widely practised in the region as it speaks to the Caribbean culture of devoting one’s life to another without the official processes prescribed by law. Interestingly though this is catered for in the Caribbean context, it is a natural part of the human condition. There is no reason why individuals should be denied the opportunity to enter common law marriages throughout the United States legally. There are a few reasons why common-law marriages should be legal in New York and New Jersey. They provide stability and security for couples who have chosen to live together without getting married. This can be especially important for couples who have been together for a long time and built a life together. They can provide couples with many of the same legal rights and responsibilities as traditional marriages, such as the right to file joint tax returns and the right to inherit from each other. Finally, common law marriages can provide couples with a way to formalise their relationship in a way that is recognised by the state, like it is in the Caribbean.

In Barbados, a union other than marriage is defined as a connection created when a man and a woman who are not married to one another have lived together continuously for at least five years.388 In Jamaica, Section 3 of the Maintenance Act 2005 and section 2 of the Property

Rights of Spouses Act 2004 have a similar definition.389 Common law marriage has become established in the culture, and even Parliament has acknowledged its significance. There is little to no substantive difference between it and legal marriage in this jurisdiction. Most often, there is even some kind of ceremony. Such marriages are not socially stigmatised in modern culture, and many honourable and influential individuals are offspring of such a tradition390. These couplings are regarded as normal and, for the most part, faithfully follow the definition of marriage set down in Hyde v. Hyde. There is a minimum period of five years necessary for the validation of a cohabitation relationship. This is coupled with the physical aspect of living together and/or the requirement of Consortium Vitae (the implication of a partnership for life). These requirements, all of which need not be proven, are the duration of the relationship as prescribed by the legislation and whether a sexual relationship exists between the parties. The degree of financial dependence or independence and any arrangement for financial support between the parties is also considered. Further, the degree of mutual commitment to a shared life, the care and support of children, if any and the performance of household duties are all important. As well as the reputation and public aspects of the relationship.

On the flip side to the aforementioned, the Caribbean should consider domestic partnerships and civil unions to provide legal recognition and protections for same-sex couples. Currently, there is no legal recognition of same-sex relationships in the Caribbean, which can lead to several problems for couples, including issues with property rights, inheritance, and immigration. Domestic partnerships and civil unions would provide same-sex couples with many of the same rights and benefits that are available to opposite-sex couples, which would help to ensure equality and fairness for all couples in the region. In the meantime, as the region slowly reconsiders its stance on same-sex marriage, recognising these other types of unions may be a significant step taken in the interim to serve the needs of the current society.

VI. Maintenance and Property

When a married couple files for divorce in the United States, the court may, either based on an agreement between the parties or a ruling by the court itself, grant "alimony" or spousal support

389 “spouse” includes –

(a) a single woman who, for period of not less than five years, has cohabited with a single man as if she were in law his wife; and to one of the former spouses391. Maintenance is not usually guaranteed; rather, it is decided based on necessity. Most States have legislation that serve as a broad framework for determining alimony payments. This is handled on a case-by-case basis and is distinct from the split of marital assets. Child support payments are distinct from alimony since they can only be used for the benefit of minor children while they are under the custody of the custodial parent. By giving a lower or non-wage-earning spouse a steady income, alimony aims to reduce any unjust economic impacts of divorce. A former spouse may have opted to forgo a profession to provide for the family, therefore they need time to learn employment skills so they can support themselves. Helping a spouse maintain their quality of living during the marriage may be another reason for alimony, particularly in higher-income households.

(b) a single man who, for a period of not less than five years, has cohabited with a single woman as if he were in law her husband.

Courts have broad discretion in deciding whether to award spousal support, unlike child support, which is typically imposed in accordance with extremely precise monetary guidelines. The family law judge also determines how much and for how long if it is ordered. The Uniform Marriage and Divorce Act, which served as the model for spousal support laws in many states, advises that some considerations be taken into account by the court when determining alimony awards. These include the former spouses' age, health, mental health, and financial situation. Also, the amount of time the recipient would need to complete their education or training in order to become independent, the standard of living for the couple during their marriage and how long the marriage has lasted. The payer spouse's capacity to provide for the receiver while supporting themself is also taken into consideration.

An alimony decree often stays the same from year to year, unlike child support, which may occasionally increase to account for cost of living. Even if the ex-spouse earns a sizable raise in their taxable income or substantial bonuses at work, they won't profit from it like a kid may with an increase in support. On the other side, if the spouse who is paying alimony has a severe decline in income to the point that they are no longer able to pay it, they may ask the court to lower their alimony payment. Reviewing their tax records may persuade the family court judge to lower their alimony payments.

Judges are increasingly imposing alimony for ‘rehabilitative’ goals as a result of societal developments. That is, for just as long as it takes the recipient spouse (of either gender) to

391 ‘Find the help you need to represent yourself in NY Courts: Spousal Support’ (NY Courts 3 April 2017)

<https://nycourts.gov/courthelp/family/spousalSupport.shtml#:~:text=Spousal%20support%20is%20 mone complete the additional training required for them to become financially independent. That is not to say that a court will never issue a long-term spousal support order, mainly if one spouse is elderly, incapacitated, or ill. If there is no termination date for spousal support in the divorce decree, payments must go on until the court makes an exception. In the past, former spouses of breadwinner ex-husbands received most alimony awards. Women are seen as less dependent now that most marriages include two wage earners, and males may be the primary caregivers. Spousal support awards and courts have kept up. The number of alimony orders from an exwife to an ex-husband is increasing. The Obergefell v. Hodges ruling by the US Supreme Court, which approved same-sex unions, is modifying alimony statistics as well. It goes without saying that alimony orders in same-sex divorce proceedings call for the higher-earning spouse to support a dependent same-sex spouse financially.

In New York, the determination of spousal support is generic, with little to no special rules or unique considerations. In New Jersey, this is not the case. The decision to provide alimony in New Jersey is dependent on several variables. Unless there are extraordinary circumstances, the period of alimony for marriages or civil unions that have lasted less than 20 years will not exceed the length of the marriage or civil union 392 In New Jersey, palimony sometimes known as financial assistance for ex-partners who were never married is also acceptable. However, it can only be awarded in cases where the parties have a formal written agreement stating that one would provide the other with support. The court will consider the duration of the marriage or civil union, each party's earning potential, the tax treatment, and implications for both parties, as well as each party's contributions financial and non-financial to the marriage or civil union, when determining whether palimony should be granted.393

In the Caribbean, there exist four tests for determining whether an award of maintenance should be made. They are the ‘Reasonable Requirements’ test, the ‘Equal Sharing Yard-stick’ test, the ‘Means and Ability Towards Self-Sufficiency’ test and the ‘Means and Ability’ test. These same tests are used in the determination of the property allocation upon the dissolution of a marriage. Although not explicitly outlined as these tests, states in the US follow similar considerations, especially in awarding alimony, as outlined above. It may be helpful to formally legislate the processes followed and considerations given to maintenance provisions in states like New York and New Jersey so that, like all other areas or the practice of Family Law, more precedents can

392 New Jersey Statutes Title 2A. Administration of Civil and Criminal Justice 2A § 34-23.

393 ‘New Jersey Alimony Laws’ (FindLaw 24 May 2018) be generated to help streamline the outcome of cases with similar facts. In the writer’s opinion, the fourth test is not suitable for implementation in the US since it is not up to date with the current global socioeconomic climate.

<https://www.findlaw.com/state/new-jersey-law/new-jersey-alimony-laws.html> accessed 1 November 2022.

Trinidad and Tobago as well as other Caribbean nations can use the reasonable requirements test. The phrase ‘reasonable requirements’ was first used by Justice Ormrod in O'D v. O'D, 394 where he described the standard the court uses to determine a fair and just judgement. This test essentially follows the legislative requirements that specify the considerations to be used when determining a maintenance order, which are the last piece of legislation. These clauses direct the court to "put the parties, to the greatest extent practicable, in the financial position in which they would have been if the marriage had not irretrievably broken down and if each had dutifully discharged his or her financial obligations and responsibilities to the other party." The Equal Sharing Yardstick Test is only used when there are ‘surplus assets’, or when the parties' combined assets exceed their combined requirements. This approach only applies to high-value cases because most ancillary relief cases do not include surplus assets, making the reasonable requirements test an appropriate test for determining a fair and equitable outcome. In the case of White v. White395 it is demonstrated that applying the Equal Sharing Yardstick Test as opposed to the Reasonable Requirements Test makes a significant difference in the amount of maintenance that must be paid in ‘big money’ instances. This case demonstrates the necessity for justice and non-discrimination in situations where assets surpass both parties' financial requirements. The decision established a significant precedent for fair and equitable wealth split in divorce proceedings by focusing on equality and rejecting gender-based stereotypes. As a result, there must be equality; the wife shouldn't be limited to her requirements while the husband is left with a much bigger balance. The court's ruling in this case stressed that financial settlements should be based on each party's needs, and their contributions to the marriage financial or otherwise should be recognized equally and taken into account in the division of assets.

Only the following islands in the area are subject to the Means and Ability towards SelfSufficiency test; Antigua and Barbuda, Barbados, Jamaica, Montserrat, St. Kitts and Nevis, and Trinidad and Tobago (with respect to cohabitants). According to this standard, each spouse is now required to acquire financial independence and become self-reliant. This means that the husband is no longer solely responsible for paying spousal maintenance. Parts of this test are covered by legislation that has been passed in the area. It is helpful to consider Knowles v Knowles. In this case, the court noted that, in contrast to the previous guiding principle, which was to put the parties as closely as possible in the position they were in as if the marriage had not broken down, the current position as articulated in the Divorce Act was geared toward fostering independence after divorce. The court must "insofar as practicable, to foster the selfsufficiency of each spouse within a reasonable amount of time", according to the case. In the means and capacity test, which is applicable in Belize, Guyana, and Montserrat, the court should secure to the wife such sum as the court deems appropriate having respect to her wealth, the ability of the husband, and the behaviour of the parties while issuing the order. As a result, alimony payments are provided to the woman only, as opposed to Barbados and Jamaica, where achieving self-sufficiency or economic independence is a legislative goal.

Since New York is an ‘equitable division’ State, each spouse has the right to any assets that are registered in their sole name, as well as the income they accrued throughout the marriage. However, a court will decide on an equitable distribution of assets during a divorce, which may or may not be exactly equal but is typically a good place to start.396 Likewise, the equitable distribution system used in New Jersey entails the court allocating assets in a way that it believes to be fair and reasonable. Depending on how fairly each party's interests are represented, this may or may not include dividing the assets equally. Separate property is defined as everything obtained by one spouse prior to marriage, as a gift, or as an inheritance. After a divorce, this property remains separate, and is not considered by the court in the allocation of assets to the other spouse.

Family Courts in the Caribbean have the authority to order the transfer or settlement of property for the advantage of any party to a marriage or a child of the family. Either marital or nonmatrimonial assets and property are subject to the order. Although the sharing principle also applies to non-marital assets the so-called ‘needs principle’ dictates that assets be transferred to the other spouse only when doing so is required to fulfill that other party's requirements. This is seen in the case of Scatliffe v Scatliffe. 397 In this case, the Privy Council seized the chance to provide some direction and clarification on the legal handling of non-matrimonial property. Property obtained by just one of the spouses before to the marriage or property given to that person alone as an inheritance during the marriage is referred to as ‘non-matrimonial’ property. The Panel described the degree to which a party's non-matrimonial property may still be significant in the court's division of assets when it was found that the lower courts had improperly ignored Mr. Scatliffe's guest house, which he had received from his parents. There are several reasons why courts in the Caribbean should not consider premarital and nonmatrimonial property in the award of property in divorce. First, this property is typically acquired by one spouse prior to the marriage, and as such, it is not truly marital property. Second, premarital property is often acquired with the intention of it being used for the benefit of the family, and not just for the benefit of one spouse. Third, property owned outside of the marriage may have sentimental value to the spouse who acquired it especially if it was inherited or acquired as a gift, and this value should not be ignored in the divorce process. Finally, premarital property may be necessary for the financial security of the spouse who acquired it, and this should be considered when making an award of property in a divorce.

VII. Conclusion

There can be no doubt that the United States of America can benefit from incorporating some of the principles present in the practice of Family Law in the Commonwealth Caribbean Region and vice versa. Though both regions seem to be on par with each other as it pertains to the legal age to marry and must both improve across the board in ensuring the continued abolition of child marriage, the US can borrow from the Caribbean’s recognition of marriages outside of Christian and civil bounds. The territories of the Commonwealth Caribbean can consider the liberal acceptance of same-sex marriages in the US Conversely, prenuptial, and postnuptial agreements should be introduced in the Caribbean context. In the United States, considerations can be given to common law marriage in all States as it is a natural consequence of some intimate relationships. Consideration may be given to the formal adaptation of three of the various tests applied in the allocation of maintenance in the US. The distinction between individual and marital assets should be strictly legislated in the Caribbean.