The institution of marriage is still strongly embedded in our society – although the high incidence of broken-down relationships resulting in rocketing divorces would have us believe otherwise.
In parallel, extra marital relationships are still sanctioned by society and the law.
The loosening of moral standards has in the meantime allowed a relaxation of stigmatized relationships such as those between persons of the same sex and those who cohabit out of wedlock.
One such situation arose when a couple having divorced, continued to live together . Their relationship as mere cohabitees was not recognized as one having any legal existence in a judgment delivered by the Court of Civil Appeal in 2019.
The issue was originally brought to be determined by a single Judge of the Supreme Court, when upon the death of a man, his concubine sought to obtain damages in medical negligence against the Ministry of Health and Quality of Life.
A preliminary objection was raised alleging that the concubine could not sue as a plaintiff in such a case as she had no locus standi to do so.
The Judge upheld the objection and set aside the plaint quoad the concubine as plaintiff.
On appeal, it was argued on behalf of the appellant that the Judge had been wrong in adopting a restrictive approach of the existing case law on the subject. Indeed , precedents going back as far as 1933 established that a concubine had no locus standi in civil claims – this reasoning has been consistently applied over the years and as recently as 2007, the Supreme Court had maintained that a concubine had no legal rights and therefore could not sue for damages on account of the death of a concubine.
The appellant made a case for a common-sense approach to be adopted in line with changing moral standards and an evolution of society’s acceptance of relationships which may exist outside those formally acknowledged by the law.
The Court of Civil Appeal upheld the judgment of the trial Judge and confirmed the legal position on the subject in the following terms :
“In resumé, unlike what has been stated by Counsel for the appellant, the rationale behind the non-entitlement of a concubine to damages , in Mauritius, is the lack of a legal right and not based on the alleged immorality of the relationship.”
The judgment cannot be faulted as it faithfully applies the doctrine of stare decisis, and attempts to maintain a coherent approach in relation to past decisions of the same nature. Furthermore, since the law on the matter has never been amended in Mauritius, to align the rights of concubines with those of adulterous children or parties to a religious marriage with civil effect, it was not up to the Court to bring in an interpretation of the law that had not been spelled out.
However, the end-result is that a concubine is deprived of a right to legal redress in damages, simply because the relationship is not one that is legally recognized. Arguably, in this day and age, this outcome would appear regressive – if not anachronistic.
The Court of Civil Appeal was conscious of the implications of its decision and adopted the reasoning of the Supreme Court in 1913, in the case of Moutou v/s Mauritius Railways, when it chose not to follow the cue of the French Cour de Cassation in similar cases.:
“In Mauritius however, the Court in Moutou (supra) considered that the position in law as stated by la Cour de Cassation in 1913 was the proper one for the local context, namely to be able to bring an action in damages there has to be “un lien de caractere juridique”.
Justices Leconte and Noel stated that –
“ 14. […] We have the greatest respect for the decisions of the Court of Cassation, but as we had occasion to state in the case of Gabriel Suzanne v. R. [1931 MR 13] when on any given question that Court adopts now one theory now another, we must of necessity make our choice, and, needless to add, we must adopt what appears to us to be the sounder view.
- We consider that although Article 1382 of the Civil Code does not say so expressly, before a party can bring an action in damages thereunder, he must show that his legal right has been invaded; the old maxim “Damnum absque injuria is not actionable” is the basis of all actions in tort. […]
If the law were otherwise, then the hairdresser, the tailor and all the purveyors of Plaintiff’s late paramour, might sue the Railway Department for the loss they have sustained by the untimely death of their customer.”
[…]
We do note that Pertrides CJ, whilst agreeing with the two other judges, went further. In addition to the necessity of having to establish a “lien of juridical nature”, he also stated –
“ … in view of the conclusion I have come to that an action does not lie under Article 1382 by reason of the termination of a ‘pacte immoral’ such as that of concubinage.”
In view of the above, the debate of legality v/s morality still appears to be a live one as regards concubinage and its legal non-existence. It will now be up to our law makers to decide whether the moral argument should still continue to trump the legal one in the 21st century.
Case: Lingel Roy v/s The State of Mauritius and Ors 2019 SCJ 103
