Brache v Aberdeen

Citation:           TT 2015 HC 111

Title:                 BRACHE v. ABERDEEN

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH 2269 of 2011

Judge(s):          Ramkerrysingh, J.

Date:                March 25, 2015

Subject:           Family Law

Subsubject:      Whether the parties lived in a co-habitational relationship – Whether the disputed property was a co-habitational home for which a property adjustment order ought to be made – Whether the applicant’s contributions entitled her to a property adjustment order.

 

Appearances:

Ms Denise Gouveia (Instructed by Ms Tiffany Hercules) for the applicant

Mrs Shelly Perryman-Jones for the respondent

 

RAMKERRYSINGH, J.:  1. The applicant seeks a property adjustment order pursuant to the Cohabitational Relationships Act 1998, in relation to property situate at 3 Twilight Close, Sunrise Park, Trincity (Twilight Close). She claims that she and the respondent lived together in a cohabitational relationship for about eleven years from June 1998 to January 2010 and that she made contributions both to Twilight Close and the family as a whole that entitle her to a one-half beneficial interest in the property. The respondent strongly resists the application on the ground that the applicant made no contribution to Twilight Close. Further, he denies her allegation that the property was bought as a home for both of them, saying that it was intended to be an inheritance for his children. In the circumstances he is asking that the application be dismissed with costs.

 

  1. The main facts of the case according to the applicant are that in June 1998 the respondent moved into her Tunapuna rental which she had been occupying with her son Christian. Although the respondent accepts that he moved into the Tunapuna flat, he contends that their cohabitation did not start until December 1998. He admits to a visiting relationship before that time. He also initially denied cohabiting with the applicant, but eventually accepted that they lived together. It is common ground that the parties lived in Tunapuna until May 1999 when they moved into Twilight Close, which was purchased by the respondent. The applicant alleged that she contributed $30,000 toward the purchase, but the respondent denies this.

 

  1. The cohabitation lasted up until December 2009 at least according to the respondent, while the applicant puts the end of the relationship as at January 2010. The parties are not far apart in estimating the length of the cohabitation which was about 11 years. If it is determined that they shared a cohabitational relationship they would have satisfied the statutory five-year period.

 

  1. The main issues in contention are:-

(i) whether or not the parties lived in a cohabitational relationship;

(ii) whether or not Twilight Close was a cohabitational home for which a property adjustment order ought to be made and

(iii) whether the contributions of the applicant, if any, entitle her to a property adjustment order; and if so, is she entitled to a 50% adjustment.

 

 

DID A COHABITATIONAL RELATIONSHIP EXIST?

  1. One of the prerequisites for a successful property adjustment [See section 4(1)(a) of the Cohabitational Relationships Act] application under section 6 of the Act is, among other things

[s 7 The court shall not make an order under section 6 unless it is satisfied that:-

  1. a) the applicant lived in a cohabitational relationship with the respondent for a period of five years; or
  2. b) the applicant has a child arising out of the cohabitational relationship; or
  3. c) the applicant has made substantial contributions of the kind referred to in section 10 and that failure to make the order would result in grave injustice to the applicant.],

to establish that a cohabitational relationship existed between the parties. The respondent challenged the fact of cohabitation stating that he only invited the applicant to live at Twilight Close in order to give her an opportunity to save to buy a house of her own. He implies that the arrangement was economic rather than domestic.

 

  1. The applicant gives partial credence to the respondent’s evidence that it was her intention to buy her own home, when she swore that her proposed Housing Development Corporation house and Twilight Close were to be used for their joint benefit. She explained that the respondent was unsure whether his tenure as an Industrial Court judge would have been renewed and they had discussed that in the event that it was not, that two properties would provide them with living accommodation and rental income respectively. I accept her evidence in this regard, but whether or not Twilight Close was intended to be the cohabitational home of the parties or a future inheritance for the respondent’s children, I am satisfied from the evidence and it is my judgment that while they lived there they did so as husband and wife.

 

  1. If I have to weigh the conflicting evidence regarding cohabitation I am leaning more in favour of the applicant. I find the respondent’s excuse for bringing the applicant to Twilight Close questionable. If the only reason for the applicant’s presence in Twilight Close was in order for her to save money, why would the respondent share a bedroom with her? Why would he join with her in doing household chores and taking care of Christian? Why above all, would he sacrifice the inconvenience and intrusion to the quiet enjoyment of his first, newly-acquired home in a respectable neighbourhood, by bringing the applicant and her son to live there, if only he meant for her to be a licensee occupier? This self-denial is incomprehensible, unless the true intention was to share his life with her, even if it was to last until she acquired her own home. There is no doubt that at the time of the move to Twilight that the respondent loved the applicant and they shared an intimate relationship. He hesitatingly but undeniably admitted it in open court. Moreover there was no arrangement between them by which she was expected to save, purchase her house and vacate Twilight Close.

 

  1. As the years passed by the applicant’s evidence suggests that her application for housing was either no longer a priority, or no longer being contemplated. The respondent on the other hand insists that it was and that it continued to be a topic of discussion for the duration of the time that they lived at Twilight Close. He said that he kept reminding the applicant about her housing application and in 2004 himself made an application to NUGFW on her behalf. It was a requirement of NUGFW that an applicant satisfy the organisation that he had the wherewithal to pay the purchase price, beginning with the down-payment. The applicant gave him a cheque for $20K to meet this requirement and when the application was turned down he returned the $20K.

 

  1. The applicant does not agree with that version of the facts. She admits writing a cheque for the $20K and giving it to the respondent to facilitate the NUGFW transaction, but insists that the application was made by him not on her behalf but on behalf of his children. Lenin, was cross-questioned on this issue at the trial and he denied that he had, or was intended to have any interest in the NUGFW house. He said that Twilight Close was his home and he always thought that it would be his home. From my observations he appeared to be telling the truth. I confess that the true position regarding the failed NUGFW application eludes me and I am unable to draw any clear conclusions, but I do not think it is a defining issue in this case. It is undisputed that the $20K given to the respondent by the applicant was repaid.

 

  1. Both parties agree that they slept in the same room, contributed to domestic expenses, albeit disproportionately, and that they shared household chores. That evidence forms the basis of my conclusion that they lived at Twilight Close in a cohabitational relationship.

 

  1. The respondent said that he and the applicant frequently exchanged the phrase ‘no strings attached’, but those words belie the evidence of both parties in describing their living arrangements. The fact that they: (i) occupied the same room; (ii) that she cooked for the family, even though he contends that it was only on a Sunday; (iii) his interaction with Christian; and (iv) Lenin’s and Cheikh’s involvement in daily chores all point to a blended family arrangement. Although it was clear that Lenin and the applicant did not get along, she nonetheless shared in the meals he cooked and he ate Sunday lunch prepared by her. It is my finding that the applicant did not play a parental role in the lives of the respondent’s children which is in contrast with the respondent, who mentored Christian and took an interest in him particularly in relation to his swimming and nutrition. I also find that he assisted the applicant generally in Christian’s care and upbringing. Like many complex family units, this one had its challenges, but they co-existed as a family unit.

 

  1. The Act defines a cohabitational relationship as: ‘the relationship between cohabitants, who not being married to each other are living or have lived together as husband and wife on a bona fide domestic basis’ [s. 2(1) Cohabitational Relationships Act 1998] In trying to understand what living on a bona fide domestic basis entails, Powell, J. set the tone for determining this concept in the case of Roy v. Sturgeon (1986) 11 NSWLR 454 when he said:-

it seems to me that to attempt to dissect the phrase “living together as husband and wife on a bona fide domestic basis” and to discreet “elements” and then to test the fact of a particular case by reference to a set of a priori rules in order to establish whether a particular “element” is, or is not present, is to ignore the fact that just as human personalities and needs vary markedly, so will the various aspects of their relationship which lead one to hold that a man and a woman are living together as husband and wife on a bona fide domestic basis vary from case to case.’

 

  1. It is my finding that although the respondent had hoped that the applicant would continue her efforts to find a place of her own, as the years passed he relaxed his pressure and settled down into family life. The need for her to get her house did not disappear completely but faded into an indefinite probability, while cohabitation continued. It was only when the relationship lay fractured and broken that he unearthed the half-buried plan. In the end the respondent’s motives for his invitation to Twilight Close and later withdrawal are irrelevant in the sense that it is the nature of the relationship and the manner in which the parties lived together and shared their lives at Twilight Close that is important. It is my judgment that they did so as cohabitants.

 

  1. The applicant deposed that the relationship ended in January 2010, but I would accept that it ended in December 2009, because from her own evidence the relationship was in trouble some time before the respondent’s departure, when she took over the master bedroom and changed the locks. She may argue that it is only when the respondent left the home that the relationship could be considered as at an end, but it must be that as long as one party has made up his mind that the relationship is ended, unless they later reconcile, that brings an end to the bond. In the case of Hibberson v. George (1989) 12 Fam LR 725 Mahoner, J.A. made the following comments in relation to the end of a cohabitational relationship:-

‘The essence of the present relationship lies, not in law, but is a de facto situation. I do not mean by this that cohabitation is essential to its continuance; holidays and the like show this. But where one party determines not to ‘live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.’

 

I find that the end preceded the respondent’s departure from Twilight Close and I take his date to mark the end of the relationship.

 

 

CONTRIBUTION GENERALLY

  1. Contributions make up the meat of this matter. Section 10 [s 10(1) On an application for an adjustment order, the High Court may make any such order as is just and equitable, having regard to:-
  2. a) the financial contributions made directly or indirectly by or on behalf of the cohabitants to the acquisition or improvement of the property and the financial resources of the partners; and
  3. b) any other contributions, including any contribution made in the capacity of homemaker or parent, made by either of the cohabitants to the welfare of the family constituted by them;
  4. c) the right, title, interest or claim of a legal spouse in the property]

provides the two areas of contribution that the court will consider: (1) direct or indirect financial contributions to the acquisition or improvement of property and financial resources and (2) contributions to the welfare of the family in the capacity of homemaker or parent. The applicant contends that she made contributions in both spheres.

 

  1. Section 7(c) of the Act outlines the level of contribution that is required, which according to that section must be substantial. During the parliamentary debate of the Cohabitational Relationships Bill in 1998, there was much discussion on the need to recognise and reward the hard work of cohabitants, especially women, who have sacrificed during the relationship to provide for their families. In her address in support of the Bill the Minister of Legal Affairs the Honourable Kamla Persad Bissessar as she then was, explained that the Bill:-

‘… seeks to … give some rights to persons who would have been in a cohabitational relationship; who would have contributed to that relationship; who would have given of their time, love and affection, who would have sacrificed, as it were, perhaps their own career in order to live in that union, allow, perhaps, a male spouse to go forward to further his career.’

 

In my view that describes the kind of contribution the legislators had in mind when creating this statute. The contribution should be sizeable and unmistakeable in the eyes of the court.

 

  1. According to the Oxford dictionary substantial means: ‘1 of considerable importance, size or worth • strongly built or made • important in material or social terms. 2 concerning the essentials of something.’ How does the court measure contribution that is substantial enough to attract a property adjustment? My approach is to examine the areas of the applicant’s contribution measured in terms of importance and worth to the acquisition and improvement of the property and to the well-being of the family unit, and reflect the significance of such contribution in any property adjustment order to be made.

 

 

CONTRIBUTION TO THE ACQUISITION OF PROPERTY

  1. Turning first to the applicant’s financial contribution to the acquisition of Twilight Close: It is her case that her first major contribution was the sum of $30,000 towards the purchase price of $395K. This sum represented her only financial contribution to the acquisition.

 

  1. Financial contribution is a material particular to the applicant’s case which she is bound to prove on a balance of probabilities. The respondent denies outright that she made any financial contribution to the purchase, and she has produced no documentary proof of this payment. She explained her inability to provide any documents by saying that she ‘believ(ed)’ that the respondent destroyed the relevant records of her payment. But this information is crucial to her case and if by her statement she implies that she would have been in a position to prove her contribution by producing bank statements, cheque books, or other financial records, then it was incumbent upon her to do so. Merely stating that they were destroyed is not good enough. There are other perhaps onerous, but nonetheless practical options open to her to produce this evidence. I appreciate the challenges that one may encounter in trying to secure financial information of some vintage, but such information is not impossible to obtain.

 

  1. Furthermore the applicant gives no details whatsoever of the $30K payment; not in terms of time, or method of payment. There is no evidence that she made any attempt to get this vital information. Twilight Close was purchased in 1999 after the down-payment was paid in two tranches in July 1998 and November 1998. How difficult would it have been for the applicant to pinpoint the year in which she made the alleged $30K contribution or the source of her funds? There is no evidence of the payment or the details of the payment before the court and her excuse that the substantiating documents were destroyed by respondent is insufficient to discharge her burden of proving that expenditure. That is not to say that she may not have paid the $30K, but this information lays the foundation for her case and lies at the heart of her claim and if she is not able to prove it satisfactorily, which I am afraid she has not, she cannot rely on it.

 

  1. There is no evidence that the parties were financially dependent, or inter-dependant on one another. They kept their finances separate and acted independently of each other in their financial dealings. And while there are many couples, both married and un-married who conduct their financial affairs in this way, taking the evidence as a whole, the independence that existed between these parties weakens rather than strengthens the applicant’s case that she was a substantial contributor.

 

 

CONTRIBUTION TO IMPROVEMENTS

  1. The respondent’s contribution to improvements far outweighs that of the applicant. He substantiated his expenses by exhibiting many receipts for furniture, appliances and improvements to Twilight Close spanning many years and while the focus is not on the respondent to show his contribution, it is an important observation that the quantum and quality of the respondent’s contribution support his contention that the applicant’s contribution in this regard was negligible. In fact there was little if anything left for her to contribute to. The applicant only managed to account for about $8000 for landscaping and plumbing, most of which was spent after the respondent left the home in January 2010. Between 1999 and 2000 the respondent spent approximately $38K on furniture and appliances, a further $34K on the installation of cupboards and tiles and $1000 on electrical work. He also spent over $230K on work done to the exterior, including fencing the property, for a grand total of $303,000.

 

  1. In comparison, the applicant spent $1700 on landscaping and for the period December 2009 to May 2011, $6250 was spent on power-washing and mowing the lawn. These expenses were primarily incurred after the relationship ended and although credit will be given for contributions made during the relationship, post-cohabitational expenses will not be treated in the same way. I find that the applicant’s contribution to the improvement of Twilight Close during the subsistence of the relationship consisted mainly of recurrent plumbing expenses and drapery. But she did not do this exclusively the respondent also purchased curtains for the home. He claimed to have reimbursed the applicant for plumbing expenses but has not shown that. The expenses for plumbing carried out during the subsistence of the relationship will be accredited to the applicant. She also paid for the internet, cable and telephone which the respondent accepts, while the other outgoings were met by him. The respondent implies that as she was the only one who benefitted from the telephone and electronic facilities, payment of those bills should not be considered a contribution to Twilight Close, but whether or not the respondent chose to make use of these utilities, they were at his disposal and at the disposal of all the occupants of the home.

 

  1. Taken together, the applicant’s expenses pale when juxtaposed against the respondent’s overall proven expenditure on improvement over the years. It is my judgment that although her contributions were small, the applicant did make contributions to the improvement during the relationship and those will be taken into account, though I am mindful that a significant portion of the plumbing and yard expenses were met after the relationship and when the respondent was not there to do these activities himself.

 

 

OTHER FINANCIAL CONTRIBUTIONS

  1. The other major contribution the applicant claims is to the food bill. Regrettably she only produced bank statements for the last quarter of 2009, which represented expenses for the tail-end of the relationship. The respondent’s statements date back only one year earlier to January 2008. Nevertheless both sets of statements were helpful in drawing a picture of what may have reasonably transpired during the relationship.

 

  1. From a thorough examination of the statements I make the following observations:-
  2. a) Both parties regularly contributed significantly to the food bill.
  3. b) They purchased food items mainly from Hi Lo (now Massy Stores), Price Smart, Food Giant Supermarket and Tru Valu in significant amounts.
  4. c) For the months of September and October 2009 each party spent on average $1500 on food for each of those months.
  5. d) There is a big disparity between the expenses of the parties occurred in December 2009, with the respondent’s expenditure being far in excess of the applicant’s. That time marks the end of the relationship which coincided roughly with Christmas.
  6. e) It is also evident that the respondent frequented Mangoes Restaurant perhaps for lunch, which would corroborate his evidence that he did not eat lunch at home.
  7. f) Both parties also bought fast food quite regularly, which may give credence to Lenin’s comment during the trial, that the applicant did not cook during the week, but instead frequently prepared microwavable meals, or provided them with fast foods. In my judgment this is not to be taken as a criticism. Many professional women are forced to do the same thing after a full day’s work.

 

  1. The above leads me to conclude that both parties habitually purchased food for the household. I also accept that Lenin purchased his own food, and cooked for himself and Cheikh and sometimes for the family.

 

  1. The parties’ capital assets were kept distinctly separate and nothing before me indicates that the applicant played any role in enhancing the capital assets owned by the respondent or vice versa.

 

 

FINANCIAL CONTRIBUTION UNDER THE ACT

  1. All in all, the respondent’s financial contribution overwhelmingly outshines that of the applicant, and while I agree with Ms Gouveia that the applicant’s contribution matched her inferior income, in my view that is of little consequence. While a divorced party may still be recognised as a fully-entitled spouse, even if her financial contribution was significantly less financially that her former partner’s, the same formula may not be applied to cohabitants, since the basis of a cohabitant’s claim rests on substantial contribution, whether financial or otherwise.

 

  1. As mentioned above at paragraph 16 the CRA specifically calls for an applicant to prove substantial contribution if he is to benefit from a property adjustment order. Unlike a spouse, the cohabitant cannot simply sit idly by whether deliberately or by design and hope to profit from property not in his name (unless there is a child involved), to which he has made no contribution. A cohabitant must earn his interest, and contribution is the key needed to unlock that door in his favour. The reasons or justification for the level of contribution is not as important as the contribution itself. Whether the cohabitant was doing the best she could, with the finances available to her does not matter. When it comes to the contribution no extra points, credit or sympathy will be given to the well-meaning, hard-working and fully-committed cohabitant who, because of his limited academic qualifications could only meet one-tenth of the domestic expenses. A small financial contribution is a small financial contribution no matter how it was conceived.

 

  1. In my view inability to contribute, is not a factor unless it was accompanied by some financial sacrifice or other sacrifice, or indirect financial assistance. For example if a cohabitant was forced to give up a well-paying job to take care of the child or children of the relationship, or had worked tirelessly in the respondent’s business without pay, or made a portion of an inheritance available for the respondent’s use. The applicant before me has made no such contribution either directly or indirectly. All she can rely on is what she actually put in.

 

 

CONTRIBUTION TO THE WELFARE OF THE FAMILY

  1. The final relevant area of contribution is to the welfare of the family [s.10 (1) (b)]. The emphasis here is qualitative, rather than quantitative. The applicant claims that she was responsible for the household chores and that she cooked the family’s meals, washed the respondent’s clothes, and parented Christian and Cheikh to some extent. When the parties met Lenin was about 23 and Cheikh was 13. When the respondent moved to Tunapuna, the respondent’s children continued to live at Never Dirty and moved into Twilight Close the following year.

 

  1. The applicant cooked for the entire family. Lenin also cooked for himself and Cheikh and sometimes the whole family including the applicant would eat. I find that the applicant prepared special meals for Christian and that during the week, prepared quick meals for the family that required little or no preparation, or purchased fast food. She also cooked on weekends, but whenever she did everyone ate. I also find that Lenin cooked meals for the family from time to time, but generally cooked for himself and Cheikh.

 

  1. Lenin was self-sufficient and Cheikh was a semi-independent teenager when they came to live at Twilight Close. Apart from Lenin’s cooking both boys laundered their clothes and cleaned their rooms. This is corroborated by the note the applicant wrote to Lenin shortly after they moved to Twilight Close, instructing him on the use of the stove and about general cleanliness in the home. She also warned Lenin not to use food purchased especially for Christian. Both parties shared the house cleaning and that they both looked after Christian. While it is evident that the applicant rendered some general domestic help in the house, it is my judgment that she did not over-extend herself to doing all or even the majority of the housework as she suggests.

 

  1. In relation to parenting the applicant concentrated her efforts on taking care of Christian. This is not meant as a condemnation of the applicant, for it is perhaps the natural order of things in blended families that one looks after one’s own above all else. But in light of the Act the applicant’s contribution to the welfare of the family as a whole would have been more greatly enhanced, if parental care were extended to Lenin and Cheikh as well, but to an extent that could be considered significant and well-meaning. I am not satisfied from the evidence that the applicant rendered any parenting assistance to the respondent’s children, whereas the opposite is true of the respondent. The evidence from both parties is that the respondent played a greater part in Christian’s life than the applicant in the lives of Lenin and Cheikh. Even the applicant’s role as homemaker towards the respondent was peripheral. It may have been deeper, but her evidence is sketchy. The respondent admitted that the applicant would wash his clothes occasionally, but he generally did his own laundry, juiced his breakfast and ate lunch at restaurants. She did not refute this. The respondent also cleaned the home, bought most if not all of the household items and together with his sons maintained the yard and the exterior parts of the house and the property.

 

  1. In summary the applicant’s evidence as it relates to her contribution to family life is weak. It is clear that she and the Aberdeen boys did not get along. In fact the note [Para. 25] mentioned earlier was written the very month that they all moved into Twilight Close. She scolded them for sitting on Christian’s bed. She labelled foodstuff bought for her son and ordered Lenin not to use them. She prevented Lenin from storing his food in the refrigerator. She admitted that she gave these instructions. These are not the actions of someone desirous of promoting the welfare of the family. Whether willingly or not, the applicant drew the lines of battle which led to much discord in the home and animosity between her and the respondent’s children. Cheikh who shared a room with Christian was close to the child, but Lenin regrets that although he would have liked to forge a relationship with Christian, and blames the applicant for this not happening, which I take to mean that her disagreeable attitude discouraged him from trying to get close to Christian. The resentment that Lenin and Cheickh felt towards the applicant was evident at trial. Each testified that the disharmony existing in the home made for an unpleasant coexistence attributable solely to the applicant. It is my judgment that the applicant’s contribution to quality family life was less than average.

 

  1. I measure the applicant’s combined direct and indirect contribution to Twilight Close and the welfare of the family to be within the nominal to basic range. Save for the fact that the relationship lasted eleven years during which she contributed as has been described in the judgment, she does not reach the 50% rung that she claims she is entitled to.

 

 

HAS THE APPLICANT BEEN ADEQUATELY COMPENSATED?

  1. Ms Perryman-Jones submits on behalf of the respondent that the applicant has already benefitted from rent-free housing during the relationship among other things and therefore her application should be dismissed. The argument for rent-free accommodation being considered by the court as adequate compensation to the weaker party has been recited for years, but I have sometimes struggled to reconcile that with the fact of cohabitation. I am not convinced that the principle holds or should hold as much significance as it has been given in the past.

 

  1. The idea of adequate compensation was introduced by Powell, J. who introduced the four-step approach in determining what is just and equitable in a property adjustment in the New South Wales case of D v. McA (1986) 11 Fam LR 214. One of the steps [The other steps include:-
  2. Identify and value the property
  3. Determine what contributions have been made by the parties
  4. Determine what order is just and equitable.]

 

was to determine whether in the circumstances the contributions had already been adequately compensated. The NSW Court of Appeal adopted this approach in the case of Evans v. Marmont (1997) 21 Fam LR 760.

  1. Since then it had become customary to use this rationale to whittle down the entitlement of a cohabitant, but I find the justification a little difficult to accept in relation to accommodation. When two persons enter a cohabitational relationship it is not with a view to sharing a home only but to sharing lives. It is usually not in the contemplation of either of them that the arrangement is purely commercial or economic. It is the respondent’s case that Twilight Close was an opportunity for the applicant to save towards her own home. He said that allowing her to remain in Twilight Close afforded her the opportunity to save the rent she would have had to pay, and consequently accumulate funds to purchase her own property. I reject that argument for reasons I have explained below.

 

  1. While staying clear from equating cohabitation with marriage, in my judgment if one is to consider the non-financial contributor in a cohabitational relationship as living in the home ‘rent-free’, then is he to be likened to a boarder, or renter instead of or at the same time as being considered a partner jointly contributing to share a home (albeit perhaps one held under sole title) and lives together? I think it is a paradox for one to be considered both a cohabitant and a boarder/renter. The Act was not intended to compensate people for living in a cohabitational relationship, but rather:-

‘to confer rights and obligations on cohabitants (sic), and (sic) to give the court’s jurisdiction to make orders with respect to interests in property and maintenance… [Cohabitational Relationships Act 1998 – Preamble]

 

  1. The concept of compensation for rent-free accommodation has been developed by case law, which I prefer to apply in a discretionary rather than mandatory sense. The relevance of this is more aptly seen after the relationship has ended, when it is clear that if as in the case before me, the non-titled cohabitant is still occupying the home, then one can truly say that the post-cohabitation occupation becomes rent-free. From the time the relationship has ended there is nothing to bind the parties together; if the untitled party remains in the home after that, he is there by the grace of the other and it is then that the rent-free compensation truly kicks in.

 

  1. Many of the newer NSW cases have deemphasised the treatment of rent-free accommodation as compensation and some courts have abandoned it altogether.

 

Some cases only consider it relevant at the end of the relationship as I have suggested above. (See Forgeard v. Shanahan 18 Fam LR 281 and H v. G (2005) 34 Fam LR 35). I am not stating that the argument for rent-free accommodation as compensation be abandoned altogether. I only suggest that practitioners re-think this issue and avoid the kneejerk response of viewing such accommodation as an automatic reward. In my view it should be confined to any relevant period after the relationship, at which time it will be most applicable, but I know that this is bound to be met by stern opposition from practitioners, hence my caution that this is a suggestion only. For now I will just advise that caution be exercised before applying the principle.

 

  1. It is the respondent’s case that the applicant’s presence at Twilight Close was to give her a chance to save by not paying a rent. So Ms. Perryman Jones’ argument is a logical one, but for the eleven years of her occupation at Twilight Close, the applicant cooked and cleaned and paid a few bills, should she have been compensated in return for those services, or is that all considered just part of what living together is all about? Where does cohabitation end and compensation begin? Or in this case where does cohabitation end and renting begin? In my view once cohabitation has been established, particularly over many years as in this case, other manifestations of the relationship melt away, if it is truly meaningful and supportive.

 

  1. If I apply the rent-free compensation argument, to this case does it mean that the applicant began as a cohabitant when the parties lived in Tunapuna, became a boarder when she moved to Twilight Close, transformed into a cohabitant when things were going well between the parties (1998 to 2009) and then reverted to a boarder the moment the relationship soured? Or did she remain a boarder of a cohabitant throughout? Or was she a boarder/cohabitant for the length of time they lived at Twilight Close?

 

  1. The respondent brought the applicant to live at Twilight Close because he loved her and they were in a committed relationship. He was prepared to share his life with her and she with him. He may have provided her with an opportunity to save to buy her house, but from the moment he obtained Twilight Close he did not hesitate to carry her there following the natural progression of the relationship.

 

  1. If it were that he was providing her with rent-free accommodation for the eleven years she lived under his roof while he enjoyed consortium, and housekeeping services and she willingly went along in the belief that theirs was a normal husband and wife relationship, at the end of which he chucks her out claiming that she had already been compensated because she had benefitted from living at Twilight Close rent-free, is that not the very situation the Act was implemented to shield against? The essence of the CRA is to protect unsuspecting non-titled applicants, who after having lived together with a respondent for many years as husband and wife, and contributing to the family found themselves suddenly without the security of a home, when the relationship ends.

 

  1. I agree only in part with Ms Perryman-Jones. I am minded to take ‘compensation’ for rent into account for the period from the end of the relationship in December 2009 until the respondent’s return to Twilight Close in April 2012.

 

 

THE CURRENT POSITION

  1. The respondent now earns about five times more than the applicant. He has very little capital assets as can be seen from the financial statements tendered in court. The only account of some worth is a savings account with a balance of $43K as at February 2014. When the applicant filed her Form 8 she received a monthly salary of $14K. During the course of the proceedings she was made redundant and now works as a Programme Manager on a part-time arrangement, at a reduced gross salary of $10K. She is also receives of rental income of $400 per month. The rent proceeds are $5000 per month but is shared with her siblings who are joint owners of the property with her. She has very little savings and no other significant assets.

 

  1. During the proceedings the respondent rather unwisely, re-mortgaged Twilight Close which until then, had recently become unencumbered, to facilitate the purchase of a Volkswagon Taureg motor vehicle. There ought to be no difficulty transferring the mortgage to the vehicle in order to free up Twilight Close and that is a matter for the respondent, but the applicant should not be deprived of any entitled interest because of this.

 

  1. Ms Gouveia submitted that the needs and means of the parties ought to be taken into account in determining what is just and equitable relying on the judgment of Delzine and Stowe [HCA 3007/2001]. In relation to the relevance of the means of parties in cohabitational relationships Justice Mendonca as he then was said at page 19 of the judgment:-

‘It seems to me that … the present financial and material circumstances of the parties, and, in particular, the present needs of the Plaintiff, should not be taken into consideration. The Court should not be diverted from the clear words of the statute. In exercising its discretion to “make such order adjusting the interests of the parties in the property as to it seems just and equitable” the Court must have regard to the contributions of the nature set forth in paragraphs (a) and (b) of the subsection. As I understand the foregoing decisions of the Court of Appeal, it is not legitimate for the Court to have regard to present or future needs of the parties, but to have regard only to contributions of the nature set forth in the subsection.’

 

He extended this to ‘means’ at page 22 when he said

‘Further I think that in most cases the needs and means of the parties will have general relevance as subsidiary factors, to the question of what is just and equitable having regard to the plaintiffs contributions. However, as indicated earlier, I accept that the needs and means of the parties has no relevance except to this question: in particular, the court cannot say that because the defendant has $11 million, and the plaintiff has something less than $50,000 for that reason it is just and equitable to make an adjustment.’

 

 

  1. I adopt that reasoning in the instant case and while I accept the argument that other circumstances may be taken into account at arriving a just and equitable outcome, in the words of Mendonca J, the limit to relevant circumstances is restricted to:-

‘… what is just and equitable having regard to the plaintiff’s contributions [Delzine v. Stowe; p22].’ So while it is true that the respondent is worth more than the applicant in terms of capital, resources and earnings that does not justify the making of a property adjustment order. The adjustment is only determined by measuring contributions.

 

  1. The respondent’s tenure at the Industrial Court has recently been renewed and he is now due to retire in 2019. At that time he will receive a little over $390K and a monthly pension of $7800 if he opts to take a reduced gratuity and pension. Otherwise he will receive a lump sum payment of approximately $510,000. Whatever may be the respondent’s choice, it is four years from now. Section 12 of the CRA gives the court to the power to adjourn the proceedings until the receipt of the respondent’s retirement benefits. The section does not stipulate a time frame for deferral, but in my view four years may be too long to do justice to the case, the least of which would be to delay the severing of the financial ties between these parties.

 

  1. The applicant’s salary has decreased by about $4000, since filing her application but that is not as a result of the relationship and neither has her earning capacity has not been adversely affected by the breakdown [See S. 15 (1)(a)]. She now pays a rent in the amount is $4000, subsidised by the respondent in the amount of $3000 by court order on the 5th April 2012. This order arose out of the injunctive proceedings. Since the filing of the application there are areas of expenditure that are no longer applicable to her.

 

For instance she no longer incurs costs for Christian to travel to school or for school uniform; her loan has been paid up, and she does not have to pay the $1000 for keeping the lawn and power-washing. She now pays about $350 per month for electricity and she has reduced her entertainment costs by half. The applicant has also had to purchase a few pieces of furniture and intends to install cupboards in the bedrooms of her rental, but these will all be one-off expenses. Although there have been some positive and negative changes since the breakdown, she is however not in dire straits.

 

  1. When this matter is determined the subsidised rental payment will have to cease as it is a form of maintenance and under the CRA there is no outright entitlement to maintenance unless certain circumstances prevail. In this case the applicant does not meet the requirements provided by section 15(1) [s 15(1) A court may make a maintenance order, where it is satisfied as to one or more of the following matters:-
  2. a) that the applicant is unable to support himself adequately by reason of having the care and control of a child of the cohabitational relationship, or a child of the respondent, being in either case, a child who is:-
  3. under the age of 12 years; or
  4. in the case of a physically disabled or mentally ill child, under the age of 18 years.
  5. b) that the applicant’s earning capacity has been adversely affected by the circumstances of the relationship, and in the opinion of the court a maintenance order would increase the applicant’s earning capacity by enabling the applicant to undertake a course or programme of training or education; and
  6. c) having regard to all the circumstances of the case, it is reasonable to make the order.]

 

that would entitle her to any form of maintenance. Christian is now about twenty years old and there is no evidence that he is physically or mentally challenged. The applicant earns a net salary of $8872, to which is added her share of rental income of $400 for a total of $9,272. Her rent and electricity bills together amount to $4350. She has no significant debts and holds capital investments in the Unit Trust Corporation and Transcorp Credit Union. She also holds a life insurance policy with TATIL and is investing in a Guardian Life annuity. In those circumstances I hold that she is not entitled to maintenance nor did she ask for this in her Application.

 

 

CONCLUSION

  1. Ms Gouveia argues for an equal division of Twilight Close between the parties, but the evidence does not support that proposition. Unlike former spouses, the contribution of former cohabitants in every facet of contribution must be ‘substantial’ in order to claim a beneficial interest in property. In my view this is discretionary and the adjustment must be commensurate with the degree of contribution if it is to be just and equitable.

 

  1. It is my judgment that the applicant’s contribution does not entitle her to the 50% adjustment in Twilight Close that she seeks. The parties lived together for the better part of eleven years and during that time the applicant’s contribution was confined to the welfare of the family and in some small part to improvement at Twilight Close. She contributed to the running of the home, to food and to other household expenses, although her contribution as a homemaker was less than desirable. She focused on the care and upbringing of Christian, while ostracising Lenin and Cheikh, which led to the deterioration of relations between her and them. The tense atmosphere she created subtracted from the quality of family life.

 

  1. The applicant was not outstanding as it pertains to her overall contribution and I do not consider it substantial enough to warrant a 50% equitable interest in Twilight Close.

 

  1. The value of the property has been given as $2.3M. Having considered all the facts and the evidence in this case, in my judgment a reasonable adjustment for the applicant’s contribution is 20% of the value of Twilight Close. That works out to $460,000. There is no evidence that the respondent has any source from which to pay the entire lump sum at this time. I do not think that it is fair that the applicant should have to wait four years when the respondent receives his gratuity for the entire lump-sum to be paid. At the same time at the end of his working life the respondent should enjoy the benefit of some part of his gratuity when that time comes. The respondent has recently encumbered Twilight Close to finance a new car. I have already said that the car could stand as its own security. I have also said that the decision to do so rests with the respondent, but it provides him with a practical option for raising cash.

 

  1. It is the order of the court that the respondent shall pay half the calculated lump-sum in the amount of $230,000 payable within six months from today and the remaining balance payable within one month from the receipt of his gratuity. He shall also pay one-third the taxed costs fit for advocate attorney in default of agreement. There shall be liberty to apply.

Allyson Ramkerrysingh

Judge

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