YATIN VARMA

Rights and obligations in a marriage are contained in our French inspired 1808 Civil Code by virtue of which a concubin has no legal status in a relationship. The Code Napoléon saw concubinage as “puisque les concubins se désintéressent du droit, le droit n’a qu’à se désintéresser d’eux”. Contrary to Mauritius, the law in France has been updated to meet the requirements of evolving societal needs. Our Supreme Court delved into the matter in the cases of Mootoo v Mauritius Government Railways (1933 MR 102), Naikoo v Société Héritiers Bhogun(1972 MR 66), Jugessur & Ors v Bestel & Anor (2007 MR 151) and more recently in the case of M.J.E.M.Lingel-Roy & Ors v The State of Mauritius & Anor (2017 SCJ 411).

In the case of Naikoo (supra), it was held inter alia: “the concubine cannot recover such damages, not because concubinage is illegal or immoral but because it is not a relation protected by law……..the parties by their own choice have placed themselves outside the protection which the law offered to them within the marriage bond.” In view of changing trends and norms, should we still be bound by such legal impediments?

A concubine is not entitled to make any claim for damages following the death of her partner and vice versa under Article 1382 of the Civil Code. This was also the case in France until 1970 when a landmark decision of the Cour de Cassation in the case of Gaudras v Dangereux (arrêt Dangereux, Cour Cass. 27 Février 1970, no 68-10276) broke away with precedent by concluding that opposite sex concubines could claim compensation for their loss following the accidental death of their partners due to the actions of a third party. The legal provision for concubinage is made under article 515-8 of the French Civil Code which provides : « le concubinage est une union de fait, caractérisée par une vie commune présentant un caractère de stabilité et de continuité, entre deux personnes, de sexe différent ou de même sexe, qui vivent en couple. » In 1999, France introduced the “pacte civil de solidarité” commonly known as “P.A.C.S “. One doesn’t have the same legal rights in a P.A.C.S as in a French marriage in relation to inheritance and adoption rights, among others but such couples are able to declare joint taxes, receive tax benefits of being in a couple, transfer rental contracts between partners and employers must take P.A.C.S into account for time off work for births, deaths and holidays.

In the United Kingdom, in the case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust, the Court of Appeal held that cohabiting couples should be able to claim bereavement damages, just as a spouse or civil partner can. The fact that many couples choose to live together without formalizing their relation is also recognized by the European Union. A 2004 directive forbids EU members from denying entry or residence of partners “with whom the Union citizen has a durable relationship duly attestated”. In some jurisdictions, other terms like common law marriage are used.

This is normally a legal framework where a couple is legally considered married without that couple having formally registered their relation as a civil or religious marriage. In Australia, it is referred to as a de facto relationship, subject to certain conditions, Canada recognizes common law relationships, in the Netherlands; such a couple signs a cohabitation agreement; and in the United States, common law marriages can be contracted in eight states. Perhaps in the local context, ‘cohabitation’ instead of concubinage, whereby a couple are not married but live together would be a more appropriate term.

Interestingly, in the case of Lingel-Roy (supra), J.Benjamin G.Marie Joseph Judge held inter alia that Mootoo (supra) and Naikoo (supra) are decisions of a full bench of the Supreme Court and two judges of the same Court, respectively, exercising original jurisdiction, which have so far not been reversed by a superior Court or overruled. In application of the principle of stare decisis, these decisions constitute binding judicial precedents, unless it is shown that the present matter is distinguishable. It was further observed “(……) the approach now prevailing in France may be conveniently adopted in Mauritius being given the legislative reforms……undeniably tend towards a liberal view of the relationship of concubinage and a recognition of certain rights to their children”. The learned Judge stated that the recent French authorities referred to therein were of great interest and the arguments put forward attractive but, in a way, his hands were tied. Consequently he declared: “(……) however consistent the view taken of concubinage in our law and our society’s attitude at present could be with the French approach……it is difficult for me to follow it being given that I am bound to Mootoo (supra) and Naiko (supra) which still remain the authority on the matter in the absence of any decision emanating from a superior court reversing them”.

Whilst preserving the institution of marriage, the law cannot turn a blind eye to those who chose to live together outside the wedlock. More and more couples are opting for live-in relationships and there should be a legal framework to cater for their rights and those of their children. The rise of concubinage is normally attributed to social changes like older age at first marriage and childbearing, higher divorce rates and more births outside marriage. The Supreme Court in Lingel-Roy (supra) gave a clear signal to our legislators and the onus is now on them. During previous years, bold decisions like allowing termination of pregnancy in specific cases and the re-introduction of divorce by mutual consent were taken. These have been rare occasions when parliamentarians across party lines got engaged in a serious debate. The law has to be dynamic, catering for societal changes.

Consequently, bold decisions need to be taken. We should in no way be subject to the whims and caprices of certain pressure groups or certain trends of thought. They undoubtedly have their role to play but Government is there to see to it that the rights of all sections of the population are adequately upheld and protected. Nevertheless, any new law should have adequate safeguards and a proper balance needs to be struck between the promotion and protection of the institution of marriage and concubinage.