James v Assoon

Citation:           TT 2014 HC 134

Title:                 JAMES v. ASSOON

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH 366 of 2010

Judge(s):          Mohammed, J.

Date:                March 21, 2014

Subject:           Family law

Subsubject:      Co-habitational relationship – Application for financial relief – Adjustment Order – Whether the applicant was entitled to an adjustment order in relation to the portion of the property to which respondent had an interest – Co-habitational Relationships Act, section 10(1) – Rent free accommodation.

 

Appearances:

Mr. Patrick Godson-Phillips for the applicant.

Ms. Melanie Abdulah-Devenish for the respondent.

 

MOHAMMED, J.:

INTRODUCTION

  1. The applicant and respondent were involved in a cohabitational relationship for a significant number of years, the exact number being in dispute It is the applicant’s case that cohabitation commenced in or around 1976 shortly after the parties met and that during the early years of the relationship the parties moved between rented accommodation on two (2) occasions from Mt. D’Or Road, Champ Fleurs to Esperanza Drive, Champ Fleurs from 1980 to 1984, followed by a next move to another apartment in Esperanza Drive between 1984 to 1992.

 

  1. In 1992 the parties moved into the respondent’s home at No. 16 Cactus Street, Macoya Gardens, Tunapuna, which was formerly the matrimonial home of the respondent and his former wife, Beulah Assoon. There the parties resided until the termination of the relationship. This property is the subject matter of the Application before the Court. The exact time of the commencement and termination of the cohabitational relationship is in dispute by the parties. It is the applicant’s evidence that the period of cohabitation came to an end sometime in 2009. It is the respondent’s case that the cohabitational relationship commenced in August 1992 when the parties moved into a portion of the Macoya Gardens home and ended in late 2007 or earlier 2008 when he began his relationship with his present married wife, Erica Harry.

 

  1. On or around the 3rd August, 2009 the applicant was evicted from the Macoya Gardens home by the respondent and all her personal belongings were placed outside on the pavement. The applicant now lives in rented accommodation at 61 Stephenville, Laventille. The respondent got remarried to his present wife, Erica sometime in September, 2009. On or about the 9th September, 2009 the respondent sold the Macoya Gardens property for the sum of $520,000.00 as deposed to in his affidavit of the 23rd September, 2010 and as evidenced by a copy of the Memorandum of Transfer dated the 9th September, 2009 annexed to the said affidavit as exhibit “IA2”.

 

 

THE APPLICATION

  1. The applicant’s original Application for Financial Relief was filed on the 26th February, 2010 but omitted to seek a declaration that the parties shared a cohabitational relationship upon which the relief for an adjustment order was based. Pursuant to an order of this Court made on the 19th April, 2010 an amended Application for Financial Relief was filed on 6th May, 2010 wherein the applicant sought the following relief:

 

(a)  A declaration that the applicant and the respondent shared a cohabitational relationship between the year 1976 to the year 2009;

 

(b)  Transfer and/or settlement by the respondent to the applicant of the whole of her legal and/or beneficial interest in the property situate at No. 16 Cactus Street, Macoya Gardens, Tunapuna;

 

(c)  Such further and/or other relief;

 

(d)  That the respondent pays the costs of the Application;

 

(e)  That there be liberty to apply.

 

 

THE EVIDENCE

In support of the Application and amended Application the applicant filed her Form 8 Financial Position questionnaire affidavit on the 26th February, 2010, narrative affidavit on the 6th May, 2010, further narrative affidavit on the 5th August, 2010, a supplemental affidavit on the 6th August, 2010 and a reply affidavit filed on the 8th October, 2010 (but erroneously stamped 11th October, 2010). The respondent filed his Evidence of Financial Position questionnaire affidavit in Form 9 and his narrative response affidavit on the 23td September, 2010.

 

Both parties were cross-examined on their respective affidavit evidence which stood as their evidence-in-chief. Written closing submissions were filed on behalf of both parties. The written submissions filed by Counsel for the respondent were indeed commendable and were of tremendous assistance to the Court, notwithstanding that the facts of the case weighed heavier in favour of the applicant.

 

 

ISSUES FOR DETERMINATION

  1. The issues which arise for determination having regard to the evidence in this case are as follows:

 

(a)  Whether the applicant was a cohabitant within the meaning of the Cohabitational Relationships Act, Chap 45:55 (hereinafter referred to as “the Act”)?

 

(b)  Whether the applicant is caught within the statutory timeframe for bringing an Application for a Property Adjustment Order within the meaning of section 8(1) of the Act?

 

(c)  In the event that the Court finds that the applicant did bring her application within the statutory timeframe, whether the applicant made any direct or indirect financial contributions to the improvement of the property and financial resources of the parties?

 

(d)  Whether the applicant made any contributions in the capacity of homemaker or other contribution to the welfare of the family?

 

(e)  Whether the Court can make a property adjustment order in cases where the property was sold prior to the making of the Application? (1) What portion, if any, of the subject property is the applicant entitled to?

 

 

THE APPLICABLE LAW

  1. The applicant’s amended Application dated 6th May, 2010 is for the transfer and/or settlement by the respondent to the applicant of the whole of her legal and/or beneficial interest in the property situate at No. 16 Cactus Street, Macoya Gardens, Tunapuna. This in effect, is seeking an adjustment order.

 

  1. The jurisdiction of the Court to make an adjustment order is derived from section 4(1) of the Act while section 6 of the Act empowers the High Court to grant orders for property adjustment and maintenance. Section 7 of the Act stipulates the prerequisites which an Applicant must satisfy before the Court can make such order. Section 7 provides inter alia:

 

“The Court shall not make an order under section 6 unless it is satisfied that –

 

(a)  the applicant lived in a cohabitational relationship with the respondent for a period of not less than five years; or

 

(b)  the applicant has a child arising out of the cohabitational relationship; or

 

(c)  the applicant has made substantial contributions of the kind referred to in section 10,

 

and that failure to make an order would result in grave injustice to the applicant ”

 

It is important to state that the provisions of section 7, namely (a), (b) and (c) are all disjunctive and thus satisfaction of any one of the three provisions would entitle the Applicant to seek relief. The Court must therefore ascertain on which one (or more) of the provisions of section 7 is the Applicant relying to establish her entitlement to relief.

 

 

WHETHER THE APPLICANT WAS A COHABITANT WITHIN THE MEANING OF THE COHABITATIONAL RELATIONSHIPS ACT, CHAP 45:55

  1. The word “cohabitant” is defined in the Act as meaning: “in relation to a man, a woman who is living or has lived with a man as his wife in a cohabitational relationship; and in relation to a woman, a man who is living with or has lived with a woman as her husband in a cohabitational relationship”.

 

  1. Before one can determine whether the applicant was a cohabitant of the respondent, the onus rests on the applicant to establish that she was living with the Respondent as man and wife in a cohabitational relationship within the meaning of the Act. Section 2 of 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.”

 

  1. Although the exact dates of the commencement and termination of the cohabitational relationship between the parties are heavily disputed by them, they both admit that they have lived together for a considerable number of years. The applicant claims that the relationship lasted for 33 years while the Respondent on the other hand has vehemently denied this by stating that:

 

“I deny that the applicant and I have cohabited for 33 years. We shared a common law relationship for approximately 15 years, which began in 1992 and ended in or around 2007 although we continued to occupy the same premises until March, 2009.”

 

  1. The respondent has agreed that the parties shared a cohabitational relationship for 15 years but has queried the start date and the alleged end date. For the purposes of ascertaining whether the applicant has filed her Application within the statutory timeframe therefore, only the end date will be material.

 

  1. It is the applicant’s evidence that prior to their move into the Macoya Gardens Property, they were already living together as man and wife. This she said was back in 1976 when the respondent moved into the two-bedroom house situate at Mount D’Or Road being rented by the applicant at that time. The parties lived there from 1976 to 1980 after which time they moved to another rented house in Esperanza Drive, Champ Fleurs where they lived until 1984. When pressed by the Court, the respondent in answer to the Court described the relationship as a ‘visiting relationship’ which he portrayed as one where he visited the applicant three to four times per week, cohabiting, assisting her financially, making her comfortable, paying her rent, he was her protector and it was his expectation that she would have no other relationship with anyone else.

 

  1. This, in the Court’s mind, possessed all the resemblance of a “bona domestic relationship” regardless of whatever interpretation or tag the respondent may wish to place on it. His responses corroborated the evidence of the applicant and the Court is prepared to find, from their evidence, that a cohabitational relationship did commence between them when the applicant moved into the rented accommodation at Mount D’Or Road, Champ Fleurs.

 

 

WHETHER THE APPLICANT IS CAUGHT WITHIN THE STATUTORY TIMEFRAME FOR BRINGING AN APPLICATION FOR A PROPERTY ADJUSTMENT ORDER WITHIN THE MEANING OF SECTION 8(1) OF THE ACT?

  1. There is grave contention between the parties as to when the relationship between them came to an end. It is the applicant’s case that the relationship came to an end in or around March, 2009. The respondent on the other hand contends that the relationship ended in late 2007/early 2008. Should the Court accept the respondent’s version, then the applicant’s Application would have been brought outside the two-year period set out in section 8 (1) of the Act which stipulates:

 

“8.(1) Where cohabitants have ceased to live together as husband and wife on a bona fide domestic basis, an application under this Part shall be made within two years after the day on which they so ceased to live.”

 

  1. Although it was admitted by both parties that they shared a cohabitational relationship for more than five (5) years, the respondent has objected to the application on the ground that the applicant is not entitled to the relief sought because according to him her application was not made within two (2) years after the day on which they ceased to live on a bona fide domestic basis.

 

  1. As in all civil matters the burden of proof rests on the applicant to show on a balance of probabilities that she has brought her application within the statutory timeframe. The applicant has sought to prove that the relationship did not come to an end until sometime between December, 2008 and March 2009 in which case her application would have been filed within the statutory timeframe. It is then for the respondent to disprove the applicant’s assertion by showing evidence that the relationship came to an end sometime in late 2007 or early 2008 as the respondent has alleged. However, I am of the view that the applicant has shown on a balance of probabilities that the relationship between the parties did continue in every regard as she has testified save and except in a sexual manner because by then the respondent had moved on to another partner who is now his lawful wife.

 

  1. Throughout these proceedings the applicant has maintained that it was in August 2008 that the relationship between the parties started to breakdown when she suspected the respondent of having an affair with another woman.

 

  1. Further, it is the applicant’s case that the respondent left the jurisdiction on 215t December, 2008 to visit his children in the United States of America and returned to Trinidad in January, 2009. While the respondent visited his children there was no communication between the parties save and except a text message which he sent to her on Christmas day. It was at this point that the applicant realized that the relationship between them had ‘virtually broken down’ and in January 2009 the respondent requested that the applicant vacate the premises and offered to pay her the sum of forty thousand dollars ($40,000.00) together with the contents of the home in full and final settlement to compensate her for the time she had spent with him in the relationship. The respondent’s offer was rejected.

 

  1. Around March of 2009 the respondent vacated the subject property and moved in with his present lawful wife in Enterprise, Chaguanas with whom he had started a relationship, as he said, sometime in 2007.

 

  1. The respondent when pressed under cross-examination as to the alleged termination of the relationship was at pains to explain the circumstances surrounding the separation of the parties. He explained as in his affidavit filed on 23’d September, 2010 that the parties even though they were still sleeping in the same bedroom on the same bed, they were sleeping in the ‘head and tail’ position and that the applicant had stopped doing anything for him relative to a relationship. However, from the answers that he provided under cross-examination it seems to me that his main reason for saying that the relationship was at an end was because the parties were now sleeping head and tail and not engaging in sexual relations. But the evidence suggests a different scenario. They were still living in the same house, she continued to take him to work, took him to the airport even though he was already involved in an intimate relationship with his present wife who had a car at the time and with whom he claimed he had already informed the applicant he was having a relationship.

 

  1. Moreover, it is the respondent’s evidence that during August, 1992 to sometime in mid-2007, the applicant cooked and washed for him. The respondent has led me to believe that he deemed the relationship to be at an end for three (3) reasons:

 

  1. a) Although they were living in the same house and sleeping on the same bed they were sleeping head and tail;

 

  1. b) The applicant stopped cooking, washing, and ironing for him on a regular basis; and

 

  1. c) The respondent had moved on to another intimate relationship with his now wife.

 

  1. In considering the question “whether a cohabitational relationship exists” the Court is to bring its own practical knowledge and experience to bear on the exercise. The factors as contained in section 4(2) of the Property (Relationships) Act, 1984 of New South Wales are useful in determining whether the relationship exists. However, it should be remembered that the factors as contained in section 4(2) are not an exhaustive list. This approach was endorsed by Mendonça, J. (as he then was) in Anthony Delzine v. Judy Stowe HCA 3007 of 2001 where he said:

 

“I however do not think that a rejection of the normal physical relationship coupled with an absence of affection for each other are in themselves necessarily sufficient to come to the conclusion that the relationship had ended All the circumstances of the relationship must be taken into account which include the matters specifically outlined in section 4(2) of the New South Wales Act”

 

  1. Section 4(2)-(3) of the Property (Relationships) Act, 1984 of New South Wales states:

 

“In determining whether two persons are in a de facto relationship [cohabitational relationship], all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

 

(a)  The duration of the relationship;

 

(b)  The nature and extent of common residence;

 

(c)  Whether or not a sexual relationship exists;

 

(d)  The degree of financial dependence or interdependence, and any arrangements for financial support between the parties;

 

(e)  The ownership, use and acquisition of the property;

 

(f)   The degree of mutual commitment to a shared life;

 

(g)  The care and support of children;

 

(h)  The performance of household duties;

 

(i)   The reputation and public aspects of the relationship.”

 

(3)  No finding in respect of any of the mailers mentioned in subsection (2)(a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a Court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.”

 

  1. That being said, it is to be noted that while cooking, washing, ironing and sexual intimacy are integral factors in founding the existence of a cohabitational relationship, they are not the only circumstances to which the Court must have regard.

 

  1. Similarly, in FH01038 of 2007 between Sharon Valadere v. Kieron Marcus Gill this very Court in finding that the applicant of a cohabitational relationship of some nine (9) years was not debarred from applying under the Act for relief endorsed and applied the dicta of Madam Justice Warner, J.A. in Mohammed v. Albert C.A. No. 165 of 2004 when she said:

 

“One may legitimately enquire whether or not cohabitation implies physically living together under the same roof. The intention of Parliament may therefore be sought in the statute itself. The phrase `on a bona fide domestic basis’ which appears in the same section does provide the key. It connotes ties pertaining to home, household and family affairs. Crucial factors would be society, support and protection. These are the hallmarks of domesticity … I therefore conclude that there is no requirement that the parties physically live together under the same roof once those elements are present.”

 

  1. An examination of the respondent’s evidence reveals that while he claimed on the one hand that the applicant had stopped washing, ironing, and cooking for him, those duties were not completely stopped. He states at paragraph 40 that “she stopped doing it on a regular basis” which I took to mean that while she may have performed those duties less frequently she did not stop altogether. As a matter of fact, the respondent has stated both on affidavit and under cross-examination that whenever the applicant was finished cooking she would inform him that there was food and invite him to part take in same but he would refuse. Further, he continued to travel to work with her, and returned to the subject property following his return from the United States in 2009, lived in the same house, slept on the same bed and while intimate relations ‘decreased’ between them they did not stop altogether. There is nothing on the evidence to suggest that society viewed the relationship as being at an end. The performance of housework, payment of bills, arrangements of travel to work and so on, continued after the alleged breakdown of the relationship.

 

  1. While I accept that by late 2007 to 2008 the relationship may have been going through some amount of turbulence which may be attributed to the respondent’s interest in his now wife, I do not find that the relationship came to an end at that stage since in my opinion many aspects of the “hallmarks of domesticity” were still attendant on the relationship. It seems to me that by December 2008 (over the Christmas season) the applicant would have been fearful that the relationship was nearing its end and that such fears would have come to her full realization on 20th January, 2009 when the respondent requested her to vacate the property and offered to pay her a sum of money together with all the contents of the home in “full and final settlement” of whatever interest she may have acquired from the relationship.

 

  1. I hold therefore that the relationship came to an end on or about the 2e January, 2009 and that since the applicant had filed her original Application for Financial Relief on the 26th February, 2010 she would have been well within the statutory time limit for bringing such action. In fact, she would have been within time once she had filed by the 20th January, 2011.

 

 

CAN THE COURT MAKE A PROPERTY ADJUSTMENT ORDER IN CASES WHERE THE SUBJECT PROPERTY HAS BEEN SOLD BEFORE THE MAKING OF THE APPLICATION?

  1. Counsel for the respondent, in her written closing submissions, questioned whether the Court has the power to make an adjustment order in relation to property where the Application for such order was made after the subject property has been sold. As mentioned earlier, the applicant’s Application was made on the 26th February, 2010 and the subject property was sold on the 9th September, 2009.

 

  1. Before the advent of the Cohabitational Relationships Act 1998, parties involved in a de facto relationship seeking to establish any interest in property held by the other party had to rely on trust law, more particularly, the constructive or resulting trust, when proffering evidence of contribution to the acquisition of, and/or improvements to, the said property. The concept of the trust is really an equitable remedy employed by the Courts to satisfy the demands of justice and good conscience without reference to any presumed intention of the parties.

 

  1. In this regard the Court will seek, first and foremost, to resolve the fundamental question as to whether there was any agreement, arrangement or understanding reached between the parties that the property is to be shared beneficially. Where there is no evidence to support a finding of an express agreement or arrangement to share, then the Court will rely on the conduct of the parties both as to the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. The onus of discharging such burden rests on the applicant who must also go on to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the express or inferred common intention of the parties that the beneficial interest of the property will be shared. Once this can be established then it gives rise to a constructive trust or a proprietary estoppel. [See the cases of: Lloyds Bank Plc. v. Rossett [1990] U.K.H.L. 14 per Lord Bridge of Harwick; Jones v. Kernott [2011] 3 W.L.R. 112P Geary v. Rankine [2012] E.W.C.A. Civ. 555 per Lewinson, L.J..

 

  1. Once the applicant can establish a constructive trust or proprietary estoppel then it matters not whether the Application for an adjustment order is made before or after the subject property has been sold. If sold, then once the Court has determined the proportion of the parties’ interests then the applicant will be entitled to that proportion in the proceeds of sale of the said property.

 

  1. Consequently, the question raised by counsel for the respondent in her written closing submissions as to whether the Court has the power to make an adjustment order where the subject property was sold prior to the making of the application can be answered in the affirmative once the above criteria can be established to the satisfaction of the Court. To determine whether such criteria can be established the Court must consider all the evidence including the contributions made by the applicant to the subject property and to the relationship as a whole. This Court also notes that the applicant had originally filed her Application seeking the same relief in previous proceedings FH01319 of 2009. This previous Application was filed on the 22nd July, 2009, the month before the subject property was sold but was withdrawn and fresh proceedings were filed commencing this instant matter.

 

  1. Having regard to the above findings the Court must now go on to ascertain whether the applicant is entitled to the other relief for which she has prayed in her amended Application filed on the 6th May, 2010 principally for an adjustment order.

 

 

CONSIDERATION OF THE SECTION 10 CRITERIA

  1. Being satisfied that the applicant has established the criteria stipulated in section 7 of the Act, I turn now to consider the relief sought by the applicant in accordance with section 10 of the Act.

 

  1. Section 10(1) provides: “On an application for an adjustment order, the High Court may make any such order as is just and equitable, having regard to –

 

(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

 

(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;

 

(c)  the right, title, interest or claim of a legal spouse in the property.”

 

 

WHETHER THE APPLICANT MADE ANY DIRECT OR INDIRECT FINANCIAL CONTRIBUTIONS TO THE ACQUISITION OR IMPROVEMENT OF THE PROPERTY AND FINANCIAL RESOURCES OF THE PARTIES? – [SECTION 10(1)(A)]

  1. It was agreed at the outset of the trial that the respondent was the owner of ⅔ share of the subject property, the property having been shared between himself and his ex-wife pursuant to a consent order of the Honourable Madam Justice J. Permanand made on 26th July, 1983 which ordered inter alia that the ex-wife and the children of the family occupy the eastern portion of the subject property while the husband (the respondent) occupy the western portion thereof.

 

  1. The applicant makes no claim to the contribution towards the acquisition of the subject property.

 

39 Suffice it to say that the parties lived together as a couple at the Macoya Gardens home from 1992 to 2009 (at least over 17 years), furnished and improved the house together, had intrinsically linked financial arrangements, socialised and, in a myriad of other ways, lived a co-dependent life.

 

  1. In or around the year 1992 the applicant, at the suggestion of the respondent, mortgaged her then motor vehicle to the Caribbean Finance Company Limited in order to obtain a loan to finance alterations and improvements to the subject property. These alterations included an addition and extension of the kitchen area, an upstairs bedroom, one bathroom, a kitchen, washroom, living room and dining area, a front porch and back porch. Although it was the applicant’s motor vehicle that was used to secure the loan it was the respondent who repaid same.

 

  1. In 1992 the parties hired the applicant’s brother who was an electrician to wire both the eastern and western portions of the property to facilitate the installation of meters, free of charge. Again this is a contribution made by the applicant through her brother of which the respondent derived a benefit.

 

  1. In 1994 the applicant bought a Fame water heater and a bell for the front gate which she again secured the services of her brother to install. Additionally, her brother installed the wiring of the laundry room to accommodate a 220 voltage plug for an electric dryer. Later in that same year the applicant purchased tiles for the kitchen floor which was installed by the respondent. She also claimed to have purchased and installed an aluminum frame for the bathroom door.

 

  1. Then in 1996 the applicant purchased ceramic tiles for the purpose of setting and laying on the floor of the back porch which the respondent laid himself and in 2007 she assisted the respondent financially to purchase material to construct and install kitchen cupboards. She claims that her contribution towards this venture was in the sum of two thousand dollars ($2,000.00). The respondent admits the applicant’s contribution in this regard but however disputes this figure alleging it to have been in the vicinity of one thousand one hundred dollars ($1,100.00). Whatever the sum contributed towards the purchase price, the fact remains that it was a contribution which she made towards the improvement of the respondent’s property.

 

  1. It seems that in relation to the house in which the parties resided they operated an arrangement which redound to the economic advantage of the respondent since it enabled him to carry out substantial improvements to the house which appreciated its value. The respondent enjoyed a capital gain thereby which he otherwise would have been unable to achieve on his own. That economic advantage was derived to a significant extent from overall financial contributions made by the applicant both directly and indirectly.

 

 

CONTRIBUTIONS MADE UNDER SECTION 10(1)(b) OF THE ACT – [“HOMEMAKER CONTRIBUTIONS”]

  1. The homemaker contribution refers to the support which one cohabitant provides in aid of the family unit. Madam Justice Warner, J.A. in Mohammed v. Albert (supra) in her discussion concerning the contribution in the capacity of homemaker explained that –

 

“As I understand “the homemaker contribution” it embraces not only “housekeeping” and taking care of the other household responsibilities, but it extends to providing the necessary support to maintain the family as a whole unit”

 

  1. It was admitted by the respondent that the applicant washed, ironed and cooked for him. According to his affidavit evidence the applicant also made curtains for the home which were sewn by her. It was not stated nor is it clear whether the other household chores were shared between them.

 

  1. The monthly outgoings were also shared between the parties. The applicant paid the electricity (every two months), telephone and Internet bills each month. She also bought cooking gas, and fruits and vegetables from the market on a weekly basis. She admits that the respondent also contributed to the household expenses on a regular basis. His expenditure was generally restricted to such items as groceries, electricity, land and building taxes, WASA rates and home insurance. He admitted that the applicant paid the telephone bill. They both bought groceries and he contributed monetarily towards market supplies at times.

 

  1. The applicant established and developed a kitchen garden behind the subject property in which she planted vegetables such as spinach, chive, lettuce, patchoi, tomatoes and sweet peppers. She also planted flowers which enhanced the surroundings of the property. The respondent has not denied this.

 

 

THE RIGHT, TITLE, INTEREST OR CLAIM OF A LEGAL SPOUSE IN THE PROPERTY – [SECTION 10(1)(c) OF THE ACT]

  1. As mentioned earlier it was agreed between the parties and Attorneys-at-law that the respondent was only entitled to ⅔ share, title and interest in the Macoya Gardens property by virtue of the order of Permanand, J. dated the 26th July, 1983. Accordingly, the applicant can only make a claim for a share or interest in the respondent’s ⅔ since the other ⅓ share is vested in the ex-wife of the respondent, Beulah Assoon.

 

 

ARRIVING AT WHAT IS LUST AND EQUITABLE

  1. Although the respondent has sought to deny the extent of the contributions made by the applicant towards the improvement of the subject property, I have found that she did make substantial contributions of the kind referred to in section 10(1)(a) and (b) of the Act. The property which the applicant seeks adjustment of is the subject property situate at No. 16 Cactus Street, Macoya Gardens, Tunapuna. That being said, it is important for the Court to make an order which is just and equitable having regard the contributions of the applicant and respondent within the meaning of section 10(1) of the Act.

 

  1. While the Act is silent on what is just and equitable, over the years the Courts have arrived at a formula to determine what the Court ought to consider when making such a determination. Those cases have listed the following factors as relevant to the assessment of the contributions of the parties:

 

1)   Whether the contributions have been sufficiently recognised and compensated;

 

2)   The needs and means of the parties;

 

3)   The length of the relationship;

 

4)   Any promise or expectation of marriage;

 

5)   Lost opportunities by the applicant.

 

  1. The above list is not intended to be exhaustive as circumstances vary from case to case and other factors may be considered at the Court’s discretion from time to time. In this regard the dicta of Hodgson, J. in Dwyer v. Kallo [1987] 11 Fam L.R. 785 at page 793 is worth mentioning. There the learned judge stated:-

 

“In my view, if one considers the plaintiff’s contributions and nothing else, this cannot conceivably lead to any view on what is just and equitable in the circumstances. However, it seems to me that the other factors can have no independent bearing on, what is just and equitable. Their relevance is only by reason of such relevance as they may have to the question: what is just and equitable having regard to the plaintiff’s contributions?”

 

  1. The Mendonça, J. in Delzine v. Stowe (supra), in accepting that there are other factors which are relevant in the determination of what is just and equitable said –

 

“What is clear from the authorities referred to above is that even where factors other than the contributions of the parties are taken into consideration the contributions of the parties are considered fundamental. They are the focal points by reference to which the Court in the exercise of its discretion may make an order under the Act. But to disregard the context in which the contributions were made, may lead the Court into misconstruing the significance of the contributions. It is therefore necessary for the Court to have regard to the context in which the contributions were made, or, as is said, the contributions should not be considered in isolation from the nature and the incidents of the relationship as a whole.”

 

  1. Having established the importance of considering other factors to assist in arriving at what is just and equitable I will now consider these factors in turn.

 

 

WHETHER THE APPLICANT’S CONTRIBUTIONS WERE SUFFICIENTLY RECOGNIZED AND ALREADY COMPENSATED

  1. It is undisputed between the parties that the applicant continued to reside in the subject property for six (6) months after the termination of the relationship and even after the respondent had moved out of the premises and started living with his now wife, and after being served with formal notice to vacate the premises. The respondent in his bid to compensate the applicant for her contributions during the term of the relationship also conferred upon her the contents of the cohabitational home. The list of items that were conferred upon her are however disputed.

 

  1. Counsel for the respondent has submitted that in light of the rent-free accommodation which the applicant has received along with the contents of the home, that the applicant has been compensated for her contributions. Counsel for the respondent in referring to the issue of recognition and compensation has submitted that –

 

“In the present case there are no children and I ask the Court to find that accordingly, this would tend to put on an even footing (for want of a better phrase) the non-financial contributions of both parties, since in most cases it is the mother who contributes extensively to the welfare of the family as a whole by looking after the children. The Court can also consider the its the applicant admitted receiving namely the rotisserie oven, food processor and the fruit dryer, in addition to the time she spent in exclusive possession of the premises after the respondent left, and the items of furniture and appliances she has retained”

 

  1. The applicant while under cross-examination said that when she vacated the subject property she took the following items with her: 1 bed, I freezer, 1 television, small appliances like the microwave oven, rotisserie oven, blender, toaster and so on.

 

  1. Counsel for the respondent has asked this Court to view these items as a part of the applicant’s compensation. While I agree with her, I cannot accept that part of counsel’s submission which states that –

 

“In the present case there are no children and I ask the Court to find that accordingly, this would tend to put on an even footing (for want of a better phrase) the non-financial contributions of both parties, since in most cases it is the mother who contributes extensively to the welfare of the family as a whole by looking after the children.”

 

  1. It cannot be said that because the union between the parties produced no children and because the applicant had no children to care for that her contributions must be viewed as being on equal footing. That’s a very narrow view of the homemaker contribution and one which I cannot accept. During the existence of the relationship the applicant exercised two capacities: one as homemaker and one as an independent woman, earning money which was used in more ways than one towards the family and the improvement of the subject property.

 

  1. Further, counsel has submitted that the Court should also consider the gifts which the applicant admitted receiving, namely, the rotisserie oven, food processor and the fruit dryer. This too is an unacceptable submission because a gift is just what it is: a gift, and ought not to be taken into account when deciding this matter. Were such submission to be accepted then the Court will find itself setting a very dangerous precedent whereby cohabitants who would have showered their partners with gifts and presents would be entitled to come before the Court, at the termination of the relationship, seeking the return of those gifts or the Court’s indulgence to have those very gifts considered as compensation already received.

 

  1. While I accept that receipt of the contents of the subject property and the rent-free accommodation, even after being served with eviction notice, amount to some form of compensation, I do not find that the applicant was sufficiently compensated for her contributions as homemaker for over 17 years cohabitation at the Macoya Gardens home; nor were her financial contributions towards the improvement of the subject property. It is common for the Court to take into account the fact that the party seeking an adjustment order had lived “rent-free” after the termination of the relationship.

 

  1. However, where the applicant continues to reside rent-free as a result of a child of the family, i.e. where it was solely for the benefit of a child of the family and not the applicant then the Courts would be less likely to consider it as being applied as compensation. For example, in a recent case from South Australia, H v. G [2005] 34 Fam L.R. 35; DFC 95-325; [2005] SASC 344, the submission that “free” accommodation should be taken into account after the relationship ended was rejected by the Court of Appeal. In that case, the female plaintiff and child remained living in the relationship property for four (4) years after separation. When the male partner argued that any adjustment in favour of the female partner should be “off-set” against this benefit, the Court responded by finding that the accommodation was not solely for the benefit of the plaintiff, but also for the child and therefore also of benefit to the defendant through providing a familiar and stable environment for his child.

 

  1. Similarly, in Sharon Valadere v. Kieron Marcus Gill (supra) on dealing with the issue of rent-free accommodation I said –

 

“The undisputed facts on this aspect of the evidence show that the applicant together with the respondent and the child, Stephanie, moved to the townhouse in July, 2010. They all resided there together until the respondent was excluded by Court order sometime in July, 2004. It is safe to say, therefore, that the respondent provided rent-free housing from July, 2000 to July, 2004. In my view it can hardly be said that this was in recognition of and compensation for her contribution under section 10(1). This was not a benefit conferred on the applicant personally.”

 

  1. Unlike H v. G and Sharon Valadere v. Kieron Marcus Gill the applicant continued to occupy the premises even after she was served with eviction notice. There are no children of the family to consider here and as such it can be said that it was a benefit which she received in her personal capacity.

 

  1. The applicant in her affidavit filed on 5th August, 2010 at paragraph 38 said that the reason why she was unable to vacate the property on 3`d July, 2009 was because she could not find suitable accommodation at that time and that she was very hesitant to move to another property because she felt that once the subject property was sold, she would not have received from the proceeds of sale, a fair share of her interest in the subject property.

 

  1. These reasons for not vacating the subject property seem to me to be reasonable and understandable. But to alleviate such fears, the applicant’s then attorney-at-law could simply have filed a lis pendens against the subject property pending the outcome of this Application. I am therefore minded to make a finding that the applicant enjoyed rent-free accommodation from March, 2009 (when the respondent vacated the premises) to 3rd August, 2009 (when she was evicted from the said premises). I also find that an appropriate portion of any adjustment order the Court may seek to make ought to be a set-off against the period of rent-free accommodation which I will calculate in accordance with the two valuation reports marked “1A4” and “IA5” annexed to the affidavit of the respondent filed on the 23rd September, 2010.

 

 

THE NEEDS AND MEANS OF THE PARTIES

  1. The applicant and the respondent are both mature individuals. The respondent is 74 years old while the applicant is 64 years old. It is the respondent’s submission that since the filing of his affidavit and Form 9 he has retired and receives a monthly pension from the Police Service in the sum of $1,641.50. Prior to that he was employed as a Clerk by Presidential Insurance Company Limited earning a total of $4,200.00 per month. While the respondent has submitted to the Court that he is renting, a perusal of his Form 9 Evidence of Financial Position reveals that he resides in a home owned by his present wife. In any event he did not disclose his alleged monthly rent. At the time of the filing of his Form 9 he was indebted to Scotiabank Limited in the sum of $59,000.00 and the Insurance Industry Credit Union in the sum of $26,001.25. Undoubtedly these sums would have diminished, if not liquidated, since the filing of his Form 9 and since the trial.

 

  1. At present the respondent’s total monthly expenditure is $2,550.00. This sum does not include the cost of travelling to work as he is no longer employed.

 

  1. The applicant on the other hand is self-employed as a taxi driver and plies the St. James to Port of Spain route. She earns approximately $6,000.00 per month and an additional sum of about $300.00 to $500.00 per day which she receives from taxi service she provides to the Tourist Transport, situate at the Cruise Ship Complex, between the months of October to April. She explained that during this six-month period she does not work every day but only on those days when ships dock at the Cruise Ship Complex.

 

  1. The applicant’s total monthly expenditure at the time of the filing her Form 8 was $3,108.00. She is not indebted to any financial institution. However, she has shares in the now defunct Hindu Credit Union, and savings in Republic Bank Limited.

 

 

THE LENGTH OF THE RELATIONSHIP:

71.1 have found that the relationship between the parties lasted for a period of about 32 years, although the respondent is adamant that it lasted for about 15 years. Either way, the relationship was a long one by any calculation. In my assessment of her claim I must have regard to the length of time she has been contributing to the welfare and support of the family unit as a whole.

 

 

ANY PROMISE OR EXPECTATION OF MARRIAGE

  1. There is nothing on the evidence which suggests that the respondent had promised the applicant to marry her. However, it is undisputed that the applicant wanted to get married and harboured such expectation only to be turned down by the respondent. Her own evidence reveals that while she may have contemplated or expressed some concern about the prospect of the respondent marrying her, all such prospects were put on hold in 1992 when she asked him whether it was time for them to get married and he responded by saying that he did not want anyone to rush him into anything.

 

 

LOST OPPORTUNITIES BY THE APPLICANT

  1. There is nothing on the evidence which suggests that the applicant has suffered any loss of opportunities for social, academic or career advancement as a result of the failed relationship. It may, however, be argued that the applicant was serious about marriage and has thus lost the opportunity for a happy married life which she expected when she approached the respondent with proposal for marriage in 1992.

 

 

CONCLUSION AND ORDERS

  1. Having considered the evidence in totality and the written closing submissions by attorneys-at-law for the respective parties; and having considered the applicant’s contributions under section 10 of the Act and the factors which assist the Court in arriving at a solution which is just and equitable, I have formed the view that the applicant is entitled to an adjustment order in relation to that portion of the subject property to which the respondent has an interest “and that failure to make an order would result in grave injustice to the applicant’: The subject property having been sold, the applicant will be entitled to share in the proceeds of the sale in accordance with the award the Court proposes to make in her favour.

 

  1. The entire property was valued by Mr. Roy Gumansingh of Royce Realty in February 2009 at $600,000.00. A copy of this valuation report is exhibited as “IA4” annexed to the affidavit of the respondent filed on the 23rd September, 2010. By request of the respondent, a subsequent report was done by Mr. Gumansingh identifying separately the value of the eastern portion of the house previously occupied by the respondent’s ex-wife and the value of the western potion previously occupied by the parties. This subsequent report is dated the 15th May, 2009 and is exhibited to the respondent’s said affidavit as “IAS”. I have noted from the applicant’s evidence that she had accepted the valuations included in the said two reports.

 

  1. This Court is of the view that the applicant would have been entitled to 35% share, title and interest in the respondent’s ⅔ share, title and interest in the Macoya Gardens Property. The valuation report exhibited as “IAS” apportioned the values of the land and building as follows: (1) the land – $240,000.00; (2) the western portion of the house occupied by the parties – $235,000.00; and (3) the eastern portion – $125,000.00.

 

  1. The evidence is that the entire property was sold by the respondent for the sum of $520,000.00 from which the respondent paid his ex-wife, Beulah Assoon the sum of $120,000.00 on the 22nd September, 2009 representing her ⅓ share in the property as shown by exhibit “IA11” annexed to the respondent’s said affidavit. The respondent therefore received for himself the sum of $400,000.00 representative of his ⅔ share in the said property. It follows therefore that the applicant’s entitlement of 35% in the respondent’s ⅔ share in the proceeds of the said sale is in the sum of $140,000.00.

 

  1. However, I have already decided that the applicant derived a benefit personal to her by living rent-free in the said home for a period of 5 months after the relationship came to an end and the respondent had moved out. The valuation report exhibited as “1A4” put the rental of the entire home (unfurnished) at the monthly sum of $5,000.00. Since the applicant was only occupying the western portion of the building, an appropriate rental value would be in the vicinity of $3,000.00 per month which would have been commensurate with the respondent’s ⅔ share of the property. The value of the 5 months rent-free accommodation would be in the sum of $15,000.00 which shall be deducted from the $140,000.00 as compensation already received by the applicant. The applicant will thus be entitled to the sum of $125,000.00 together with the contents of the home which in this Court’s view will be just and equitable to sufficiently compensate her for her contribution to the improvement of the said property in general and for her homemaker contribution in relation to the home and family unit.

 

  1. Accordingly, the order of the Court is as follows:

 

 

ORDER

  1. This Court declares that a cohabitational relationship existed between the applicant and the respondent within the meaning of the Cohabitational Relationships Act, 1998 Chapter 45:55 from about 1976 to 2009.

 

  1. This Court further declares that applicant has acquired and is entitled to 35% of the respondent’s ⅔ share, title and interest in the property situate at No. 16 Cactus Street, Macoya Gardens, Tunapuna (the subject property).

 

  1. The subject property having been sold, the respondent shall pay to the applicant the sum of $125,000.00 determined by this Court to be a sum which is just and equitable to represent her entitlement in the proceeds of sale of the said property.

 

  1. The respondent shall pay to the applicant the said sum of $125,000.00 mentioned in paragraph (3) on or before 30th June, 2014.

 

  1. The applicant shall retain all the contents of the home which were conferred unto her by the respondent.

 

  1. The respondent shall pay to the applicant 50% of her costs of pursuing this Application for Financial Relief to be taxed in default of agreement.

 

Robin N. Mohammed

Judge

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