Citation: TT 2014 HC 284
Title: GASPARD v. RAMSAROOP
Country: Trinidad and Tobago
Court: High Court
Suit No.: FH 504 of 2012
Judge(s): Ramkerrysingh, J.
Date: July 25, 2014
Subject: Administration of estates
Subsubject: Whether the applicant and deceased had a cohabitational relationship – Finding that applicant and deceased had a visiting relationship – Whether the Cohabitational Relationships Act and the Distribution of Estates Act made provision for the applicant – Statute intended to address inequality and injustice of cohabitants in an exclusive relationship – Deceased and his wife were living as man and wife at the time of death – Finding that applicant disentitled from claim on the deceased estate – No evidence that an asset acquired during alleged cohabitation and deceased was not separated from his wife – Section 25 (2) of Administration of Estates Act – Application dismissed.
Ms Amerelle Francis for the applicant
Mr Azeem Mohammed (instructed by Ms Karen Singh) for the respondent
- As with the vast majority of cohabitation cases where one of the purported cohabitants has died leaving a spouse, the outcome rests primarily on the facts of the case and the credibility of witnesses. If the applicant presents a persuasive case to support a cohabitational relationship and establishes that at the time of death the deceased and the surviving spouse were living separate and apart, then the Act [Administration of Estates Act Ch 9:01; s 25 (2)] clearly defines how the deceased’s estate is to be divided. On the other hand, if the applicant does not cross the first threshold, the matter ends there and the application is dismissed.
- The instant case turns more on its facts than on credibility and although I am of the view that the applicant believed that she shared a cohabitational relationship with the Deceased, it is nonetheless my judgment that she is disentitled from his estate for the reasons given in this judgment.
- Before me are the applicant who contends that she shared a cohabitational relationship with the Deceased who at the time was separated from his wife and a respondent who claims that her marriage to the Deceased continued up to the time of his death. After hearing from the parties and their Attorneys, I am satisfied that the applicant and the Deceased shared a visiting relationship that did not rise to the status of cohabitation, but one which she reasonably thought, or was led to believe was cohabitational. I am also persuaded to accept the respondent’s evidence that the marriage between her and the Deceased, subsisted until he died. I also believe that the applicant was of the genuine view that she was in an exclusive relationship with the Deceased. It is for these reasons that I am moved to write this judgment in order to analyse the facts and the law for the benefit of both parties.
THE EVIDENCE OF THE APPLICANT
- When the applicant met the Deceased in 1998, he was travelling frequently between Trinidad and Tobago and the United States where the respondent lived. The Deceased informed her that he was separated from his wife. The Deceased returned to Trinidad permanently in 2003, but in her original affidavit the applicant stated that he moved here in 2006. She deposed that the Deceased moved in with her and her two children at her home in Zircon Circular, Bon Air West, Arouca in 2006, but later changed that to 2004. She went on to describe their domestic life together and the activities and routines they shared, including bills and household chores and talked about having children.
- Whenever the respondent’s name came up during conversation, the Deceased explained that the reason they remained married was in order to avoid taxes and penalties on the assets and investments held by them jointly in the United States. The Deceased assured her that the respondent knew all about his relationship with her as he had informed her, that is the respondent, that he had moved to Trinidad to be with her (the applicant). The applicant implies that the respondent was so accepting of the relationship that in 2010 when she visited Trinidad they all had lunch together, but at trial the applicant recanted that statement. When the Deceased fell ill in 2010 the applicant nursed him back to health and he promised that he would initiate divorce proceedings against the respondent, but he never did.
- In March 2012, the Deceased was involved in a motor vehicular accident and while still at the scene he telephoned the applicant and told her to meet him at the Chaguanas Health facility. From there he was transferred to Mount Hope where she ensured that he was comfortable and had all that he needed. He died two days later.
THE EVIDENCE OF THE RESPONDENT
- The respondent’s evidence sums up a marriage, which the Deceased led her to believe was continuous and she had no reason to believe otherwise.
- The respondent and the Deceased spent the first two years of marriage in Trinidad before moving to the United States in 1989. Although she was able to work right away the Deceased remained unemployed until 1994, during which the respondent was the sole breadwinner. In 1994 they purchased a house in Washington, which was later sold and the proceeds used to open a business. Unfortunately the business did not survive and the Deceased’s employment contract came to an end in 2002, leaving him depressed.
- They discussed returning to Trinidad where he stood a better chance of being employed and agreed that the Deceased would return first, locate a place for them to live and the applicant would follow. From 2002 when the Deceased left the United States, to 2009, he travelled continuously between the two countries and they spoke often on the phone when they were apart. He kept her updated on events happening in Trinidad for example, the inheritance of the family’s Princes Town home and his employment as the Legal Adviser of the Trinidad and Tobago Bureau of Standards. Whenever he was in the States he stayed with her at their Washington residence.
- The respondent also travelled between the two countries during the period, at the respondent’s expense, but stayed with her father in Bonne Aventure, because the Deceased was evasive about where he lived and gave her excuses why she could not live with him when she visited Trinidad. All he would say was that he was renting in Arouca. When she was in Trinidad the Deceased lived with her at her father’s Bonne Aventure home and paid all her expenses during her stay. He also purchased foodstuff and gave her money otherwise. After she had returned to Trinidad for good and eventually moved to an apartment in lere Village with her sister, he visited her frequently sleeping over on many occasions.
- When in 2004 while still in the United States the respondent landed a better paying job the respondent encouraged her to delay her return to Trinidad and save towards acquiring a home in Trinidad, despite her insistence that she no longer wanted to live in the United States and wished to return home. Eventually her persistence paid off and the Deceased travelled to America to help her pack up all their belongings and relocate to Trinidad. She arrived to live permanently in February 2010 and initially stayed with her father.
- The year 2010 also marked the year when her suspicions got the better of her and she stumbled upon the Deceased and the applicant at the latter’s Zircon Avenue residence. This, after two failed attempts to locate him at the address he had given her, purporting to be the address at which he lived, but which turned out to be false. When she confronted him and asked whether he and the applicant were in a relationship he denied it, but begged for forgiveness.
- When the applicant moved in with her sister the Deceased paid for relocating her there and paid her share of the rent. In 2011 they discussed renovating the Princes Town property which included plans to build rental apartments on the ground floor, one of which was to be reserved for the applicant’s sister, but the Deceased became ill before the renovations could begin. They continued to be with each other and were committed to their marriage. They went out together and attended family outings and gatherings and he visited her often. Many times after work he would pass by have a meal and relax and oftentimes spent the night.
- On the night of the accident the applicant had been expecting the Deceased to visit in order to bring the rent money and additional funds. When she did not see him she called him and he said that he would call her later, which he did, and informed her of the accident, but said that she was not to worry. He called her the following day to say that he was being kept at Mount Hope for observation. The next day she called him to arrange a visit at Mount Hope but he promised to pass by upon his discharge the next morning. When the Deceased’s sister called to tell her that the Deceased had died, she arrived at Mount Hope at about the same time that the applicant was about to sign the forms authorising an autopsy.
WEIGHING THE EVIDENCE AND FINDINGS OF FACT
- Although the applicant’s evidence on the facts is not as detailed as one would have liked to meet the standard set by Delzine v Stowe [Delzine v Stowe HCA No 3007/2001], I am of the view that she nonetheless presents a meritorious case. The details of their lives together are vague and she did exhibit bits of sentimental and intimate exchanges suggestive of a close familial association. I have read the evidence and listened and observed the parties closely and I am of the view that they are both credible witnesses. The two bodies of evidence are strong, although the preponderance of the evidence favours the respondent, the applicant presents a somewhat persuasive case.
- Most damaging to the applicant’s case were the testimonies of two of her own supporting witnesses, Ena Williams and Susan Ramsaroop-Khan, sisters of the Deceased. I have analysed their evidence briefly below. It is also rather unfortunate that the applicant chose not to have her daughters or at least one of them, file evidence to amplify hers, as to the living and sleeping arrangements at Zircon Avenue. That notwithstanding, I believe the applicant when she says that the Deceased informed her that he and the respondent were estranged and that she (the respondent) was aware of her relationship with the Deceased.
- That having been said, I also believe the respondent when she said that the marriage continued without interruption up to the Deceased’s death. Further, I believe that the respondent simply accepted as true, the Deceased’s reasons and the excuses for not being able to live with him in Arouca. It is my finding that the Deceased deliberately gave the respondent an incorrect address to throw her off the trail for fear that she would ferret out the truth of his deception. It is also my finding that the Deceased took advantage of the respondent’s absence from Trinidad to enjoy the best of two worlds, that is enjoying the companionship of the applicant, while maintaining his marriage to the respondent and being careful to keep the two spheres of his life separate.
- The applicant was unable to obtain supporting evidence from members of the Deceased’s family as he kept the truth from them as well. She sought in this regard to bring Ena Williams and Susan Khan, the Deceased’s sisters to testify on her behalf, but far from being unhelpful to the Court as Mr Mohammed submits, their testimonies gave meat to my conclusion that the Deceased kept his relationship with the applicant hidden from members of his family, to promote his duplicity.
- In her Examination-in-Chief Ms Williams said that she only met the applicant twice before and was introduced to her by the Deceased as ‘a friend’. Like other close members of the Deceased’s family, she did not know where he lived in Trinidad and was not aware if he lived with anyone. This concerned her she said, as she felt that she would be unable to care for him if he fell ill. She knew the Deceased to be married to the respondent.
- When she was cross-questioned by Ms Francis, Ms Williams said that the Deceased and the respondent visited her about three or four times a year, but the visits lessened after his death. She also said that the Deceased told her in the absence of the respondent that he and the respondent were separated. At the same time she affirmed that he did not indicate to her if he lived alone. Ms Ramsaroop-Khan had never met the applicant before the funeral and described the respondent as ‘my brother’s wife.’ She too did not know where the Deceased lived, nor if he lived with anyone. She also did not know whether or not he was separated from the respondent.
- These two witnesses, as well as several others who knew him personally, described the Deceased as a private person who did not discuss his personal affairs. Ms Khan also confirmed that she and her siblings arranged had and paid for the Deceased’s funeral without any assistance from the applicant, who also played no part in the arrangements. In fact Ms Ramsaroop-Khan observed at the funeral that unlike the applicant, the respondent interacted with relatives and friends whom she knew and was well acquainted with; a strong indicator that the Deceased did not treat the applicant as a common-law wife to those closest to him. This treatment of the applicant is of much significance, for if the applicant’s case is that the Deceased and the respondent had been separated and that the latter knew of her relationship, and accordingly, that he had moved on with his life in an exclusive relationship with her for eight years, then he was free to introduce the applicant to the world at large as his cohabitant. He would have had nothing fear from a jealous respondent or inquisitive relatives loyal her. But his conduct and obvious attempts to conceal his relationship, are very much in keeping with an adulterous husband trying to hide an extra-marital affair from his wife and close relatives.
- Yet another family member of the Deceased’s nephew, Ronald Ramsaroop, swore that he knew nothing about the applicant, and did not know that he was in a relationship with her. Like other members of the Deceased’s family he regarded the respondent as the Deceased’s wife and was unaware whether they were separated. The respondent’s nephew Quincy George and her sister Karole George-Drue gave similar evidence. None of these family members knew where the Deceased lived.
- By his line of questioning Mr Mohammed quite cleverly, stressed that because the Deceased and the respondent must be considered as having lived separate and apart, because they did not live at the same address. I have dealt with this is more detail later in the judgment [See pan 33 et al], but I disagree with that suggestion primarily because the circumstances as given by the respondent living arrangements between her and the Deceased are reasonable and plausibly explained. The evidence is that the respondent questioned the Deceased on more than one occasion as to the reason(s) why she could not live with him. She also asked him for his address on a number of occasions. She accepted his reason why they could not live together, and when he eventually gave in, he gave her the wrong address. When she discovered that the Deceased stayed at the applicant’s address and she confronted him, her evidence is that he begged for forgiveness. In her mind and, it is my finding, in his as well, the marriage was very much alive, but the Deceased could not live with the respondent without arousing the applicant’s suspicions of his true intentions toward her, and he could not disclose his proper address to the respondent without also risking the revelation of his affair with the applicant.
- Another bit of this enigmatic puzzle is the unwillingness of the Deceased to have the respondent visit him at Mount Hope after the accident. He kept her at arm’s length promising to visit her when he was discharged, while the applicant’s evidence was that she visited him everyday and took care of him. He clearly wanted to avoid the inevitable encounter between the two parties, if he had allowed the respondent to visit.
- What cements my conclusion that the Deceased was an unfaithful husband having an affair with the applicant and not a cohabitant living separate from his wife, was the fact that he was an Attorney possessed of legal knowledge and training to be acutely aware of the consequences of his actions. He had eight years to put things in place to protect the applicant if he desired. Instead, he did nothing at all to provide for her. He made no will. He did not name her as a beneficiary for his National Insurance. He did not convey any interest in the Princes Town property, or any other asset to her. And he did nothing that could bind them in any way. The applicant referred to an Agreement for Sale for land in Cumuto, entered into by herself, her two daughters and the Deceased as purchasers, but she provided no details of the transaction, nor did she produce a copy of the Agreement.
- As a legal expert the Deceased would have been aware of the challenges the applicant would have faced to establish cohabitation in the event of his death, particularly as he had not divorced the respondent. If it were his intention that the applicant should be recognised as his common-law spouse he would have ensured that arrangements were put in place to protect her status. Above all, he would have understood the ramifications of his marriage on entitlement to his estate if he had died intestate, and the up-hill battle the applicant would have faced if he had not divorced the respondent, or prepared a will. Mr Mohammed casually submits that the fact that the Deceased did not obtain a divorce does not detract from the cohabitation, but this is a very significant non-step for the Deceased as an Attorney-at-Law, in these circumstances. It signifies to me that he did not want to disturb the natural result that would occur in the event of his death as a married man, intestate. In other words if he desired the applicant to share in his estate as a cohabitant and to be recognised as such during their joint lives, he was, professionally, well-positioned and certainly had the time, to put his affairs in order.
SUMMARY OF FINDINGS
- It is my finding that the Deceased carefully orchestrated his life so that he could enjoy the companionship of the applicant while maintaining his marriage. He planned it so that the respondent and his family members would have no suspicions about his illicit affair, by not divulging to any of them where he lived, or inviting them to his home. He sent the respondent on a wild goose chase before she discovered on her own where he lived. He encouraged her to stay longer than she wanted in the United States so that he could prolong his affair and upon her return gave her a number of reasons why she could not live with him why she could not, just to keep his affair going. The Deceased continued to treat the respondent as his wife throughout. They communicated frequently by email and visited each other here and in America. He maintained her fully whenever she visited Trinidad and sent money for her in America and when she returned permanently to Trinidad, he paid her bills and met her personal needs and expenses.
- I find that the Deceased’s treatment of the parties was deliberately calculated to keep them both in his life. I rather think that Mr Mohammed agrees with that position, when he submitted that the respondent’s ‘description of her relationship with Victor Ramsaroop is not dissimilar to that of Halima Gaspard. [Submissions on behalf of the applicant; filed 22/05/14; p. 8]
APPLICATION OF THE LAW
- The Cohabitational Relationships Act and by extension the Distribution of Estates Act 2000, which amends the Administration of Estates Act and the Succession Act were not intended to provide for cohabitants of married persons. They were meant only to address the inequality and injustice of cohabitants of an exclusive relationship. In other words, the various statutes recognise one relationship at a time. As it relates to intestacy, this means (i) a spouse alone or (ii) a cohabitant alone, or (iii) if the Deceased died leaving both a spouse and a cohabitant surviving him or her, the cohabitant is recognised if the Deceased and the spouse were living separate and apart at the time of death. It does not provide for a spouse and a cohabitant if the Deceased and the spouse were still living as man and wife at the time of death. Of course children are always recognised under any circumstances.
- The 1996 law reform Green Paper on Cohabitational Relationships at paragraph 7.8 considered various scenarios in making recommendations for legislative changes in the area of intestacy:
‘If the rules of intestacy are to be extended so as to enable a cohabitant to share in the intestate’s estate, then consideration must be given to those situations where a deceased person is survived by both a legal and a de facto spouse or with children from either one or both relationships or even with children from other relationships.’
- The Green Paper recommended inter alia at paragraph 7.10:
‘… that upon intestacy legislation should reflect the following guidelines:-
- Where the deceased person leaves both a legal spouse and a de facto spouse with whom he has cohabited continuously for a period exceeding five (5) years, then the de facto spouse should be entitled equally with the legal spouse to a share in the estate of the deceased.’
The above recommendation received only partial blessing from the legislators, which in its final form, was varied in two major respects and introduced two new features. Firstly, section 25 (2) of the AEA [Distribution of Estates Act 2000 s.3 (c); Administration of Estates Act Ch 9:01 s. 25 (2)] prohibits a cohabitant from claiming any interest in the Deceased’s estate unless the Deceased and the surviving spouse were living separate and apart at the time of the death. Secondly, the section limits the estate in which a cohabitant could lay a claim, to items acquired during the period of cohabitation only, subject to the rights of the surviving spouse and any issue.
Section 25 (2) of the AEA provides that:
‘Notwithstanding section 24, where an intestate dies leaving a spouse and a cohabitant and the intestate and his spouse were AT THE TIME OF HIS DEATH LIVING SEPARATE AND APART [My emphasis] from one another, ONLY SUCH PART OF THE ESTATE AS WAS ACQUIRED DURING THE PERIOD OF COHABITATION’ SHALL BE DISTRIBUTED TO THE COHABITANT, [My emphasis] subject to the rights of a surviving spouse and any issue of the intestate.’
- I do not agree with Mr Mohammed when he submitted that so long as the Court finds that the applicant and the Deceased cohabited for at least five years, whether or not he kept it hidden from the respondent, that that is the end of the matter and the cohabitation prevails. The statute is clear that for the applicant to successfully claim an interest in the Deceased’s estate, he and the respondent must have been living separate and apart when he died.
- Mr Mohammed has argued that the Deceased and the respondent were separated since his return to Trinidad in 2006, and that he was cohabiting with the applicant exclusively from that time. But what is the evidence before me? I have found that the Deceased lived a double-life so to speak; portraying on to the respondent, and to the important persons in his life, that his marriage continued, while at the same time leading the applicant to believe that the marriage was over and that he was in an exclusive relationship with her.
- It is my judgment that the Deceased and the respondent continued in their marriage, but lived at different addresses at the Deceased’s behest to conceal his infidelity. He went to great lengths to keep his association with the applicant a secret. If he considered his marriage over, why would he go through the trouble? I can only infer from his conduct that he wanted to keep his marriage intact as far as practicable.
- The Deceased never communicated to the respondent during all the time they were living in Trinidad and the United States respectively, and then finally in Trinidad, that the marriage had ended. Indeed they operated in a manner to suggest quite the opposite. Does that qualify as living separate and apart? The learning in Rayden [Rayden on Divorce; Vol I; 13th Edn; Joseph Jackson, C. F. Turner, Margaret Booth, G. J. Maple] says that it does not:
‘Living apart does not exist so long as both parties bona fide recognise the marriage relationship as continuing even though the husband and the wife are separated; so the relationship does not end by reason of a separation brought about by the pressure of external circumstances such as absence of professional or business pursuits … [Supra p. 294; pan. 111; See also Santos v Santos  2 All E.R. 246, 251]
Lord Justice Turner said at page 924 of the N. Z. L. R.  in the case of Sullivan v Sullivan  NZLR 912:
‘Mere physical separation can never … constitute living apart, even if long continued. There must also be demonstrated, on the part of one or both of the spouses, a mental attitude averse to cohabitation … It may be that in some cases the state of living apart comes about from the mere indifference of the spouses — that they ‘drift apart’ and that by a process of which mere apathy is the main constituent, they ultimately begin to ‘live apart’. To such a suggestion my answer must be that (the parties having already physically separated) the state of living apart does not begin to exist until that date at which, if the spouse in question were compellingly asked to define his or her attitude to cohabitation, he (or she) would express an attitude averse to it. Until this state is reached, cohabitation is not, in my opinion, broken. When it is reached, living apart begins.’
- What the respondent describes of the manner in which the Deceased treated her during the period before and after her return to Trinidad certainly does not amount to indifference on either of their parts. On the contrary she describes a marriage very much in existence and of the
Deceased treating her very much as a wife; maintaining her, meeting her expenses and spending time with her. He paid and assisted with her relocation, and when she asked why they could not live together he did not respond ‘because our marriage is over’, instead he proceeded to give her excuses about proximity to work and the like. In his eyes and in the eyes of his relatives the respondent was his wife. They all spoke about what a private person he was, but throughout it all they regarded the respondent as his wife and none of them associated the applicant with the Deceased.
CONCLUSION AND ORDER
- The evidence points strongly to an extra-marital affair between the applicant and the Deceased of which the respondent was totally unaware until she stumbled upon her discovery in 2010. I find and it is my judgment that both the Deceased and the respondent treated the marriage as continuing up to the time of his death and I hold that they were not living separate and apart.
- Even if the applicant were to establish her status as a cohabitant, she still falls short in surmounting another important aspect of this case, which relates to the two main items that comprise the estate. The applicant mentioned only two items that made up the Deceased’s estate to wit:
- A parcel of land in Cumuto;
- Property inherited in Princes Town.
Neither of these properties was acquired during the alleged cohabitation. With respect to the land in Cumuto, I have no evidence that the transaction went beyond the contract stage and no evidence that either the Deceased or the applicant or both of them jointly acquired this property. In relation to the Princes Town property, this was inherited by the Deceased and his siblings in 2002 and subsequently conveyed to the Deceased after he purchased his siblings’ shares in 2010. One might say that the purchase having been completed in 2010, places it during the time of the purported cohabitation, but the applicant produces nothing to show when and if so, by what means the Princes Town property was conveyed to the Deceased. Where is the Deed of Assent or other Instrument of transfer to the Deceased? None has been provided.
- In applying the formula as provided by section 25 (2) of the AEA I hold that the applicant is disentitled from any claim on the Deceased’s estate for two main reasons. First, she may have been living with the Deceased at the time of his death, but I hold that the Deceased and the respondent were not living separate and apart from each other at the time of death. Secondly, there is no evidence of any asset acquired during the alleged cohabitation, which is all the applicant would have been entitled to share if the evidence proved that the Deceased and the respondent were separated when he died. Accordingly, the respondent is the only one entitled to the estate. The Application is dismissed.
- Based on my findings above, particularly in light of my finding of the Deceased’s duplicitous attitude towards both parties I will say that there shall be no order as to costs.
Dated the 25th day of July 2014