EVERYDAY LAW: What spouse is entitled to under act

A FEW DAYS ago, I was asked to explain to a caller whether it was true that her late mother’s boyfriend could benefit from her property even though she had left her (the daughter) all her property by will.This is a matter that I had previously addressed in this column in 2006. For the benefit of that caller and the public, I will reproduce the relevant parts of that column:Under the Succession Act a “spouse” is defined to include “a single man who was living together with a single woman as her husband for a period of not less than five years immediately preceding the date of her death”.Part X of the act makes specific provision to ensure that a surviving spouse gets a share of the estate of a testator as a legal right.The effect of the provisions of Part X is that a surviving spouse’s share of the deceased’s estate takes priority over any provisions of the testator’s will.Section 93 of the Succession Act sets out the extent of the share. It reads as follows:(1) “If a testator dies leaving a spouse and a child who is a minor, or a child who is, because of some mental or physical disability, incapable of maintaining himself, the spouse shall have a right to one-quarter of the estate.(2) “If a testator dies leaving a spouse and no such child as is mentioned in subsection (1) the spouse shall have a right to one-half of the estate.”Section 94 of the act provides:“The spouse’s legal right under Section 93 shall have priority over devises bequests and shares on intestacy.”It is therefore submitted that provided that the boyfriend can establish that he was a single man living together with the deceased (who must have been “a single woman”) as her husband for a period of at least five years immediately preceding her death, he will be a spouse within the meaning of the Succession Act and therefore, on the facts, entitled to a one-half share of the deceased’s estate.It should be noted that if during the lifetime of the testator he has made permanent provision for his spouse, whether by contract or otherwise, all property which is the subject of such provision shall be taken as being given in or towards satisfaction of the share as a legal right of the surviving spouse.The Succession Act makes provision for de facto spouses and specifically speaks of a single woman living with a single man as his wife and a single man living with a single woman as her husband.The meaning of “living together as husband and wife” was considered in the Australian case of  Fagan deceased F.L.C. 90 – 821. In that case the court was considering Section 11 of the Family Relationships Act 1980 1975 which provides in part:“A person is on a certain date, the putative spouse of another if he is, on that date, cohabiting with that person as the husband or the wife de facto of that other person . . . .”In the course of his judgment in that case Jacobs J. said:“To cohabit as husband and wife means no more than to live together as husband and wife, the wife rendering wifely services to her husband, and her husband rendering husband-like services to his wife. They must live together not merely as two people living in one house, but as husband and wife.” (Wheatley vs Wheatley 1950 1 K.B. 39 at Page 43).It does not necessarily imply that they are always living together under said roof, and there may be states of cohabitation where they see as much of each other as they can, and yet are not separated because there has not been any real suspension of their ordinary conjugal relation. A man may be cohabiting with his wife even if he is away on a visit or on business because the conjugal relationship is not determined in any shape or form (Kay vs Kay (1904) P. 382 P. 389.)In my judgment the words “as husband and wife in Section 11 do no more than give this secondary meaning to the word ‘cohabit’ the primary meaning of which is simply “to dwell with, or live together”.