Pancham v Cayenne

Citation:           TT 2013 HC 245

Title:                 PANCHAM v. CAYENNE

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH2249 of 2010

Judge(s):          Mohammed, J.

Date:                November 20, 2013

Subject:           Family Law

Subsubject:      Co-habitational Relationship – Property settlement order – Whether the applicant was entitled to an interest in either of the properties – Whether the applicant was entitled to a lump sum payment – Whether the applicant was entitled to further relief – Finding that applicant made a significant financial contribution to the properties – Applicant awarded interest in both properties – Applicant entitled to lump sum payment representing her interest in properties – Co-habitational Relationships Act, Chap 45:55.

 

Appearances

Mr. Roy V. Holford for the applicant

Ms. Deborah Peake S.C. for the respondent

 

MOHAMMED, J.:

INTRODUCTION AND APPLICATION

  1. By way of Notice of Application filed on the 25th November 2010, the applicant sought a property settlement order in respect of two parcels of land described in the Appendix attached to this judgment, a lump sum payment, costs and such further and or other relief. In support of this Notice of Application, the applicant filed an affidavit along with her Form 8 questionnaire on the 25th November, 2010.

 

  1. At the first directions hearing on the 14th March, 2011 Counsel for the respondent gave oral notice of her intention to raise a preliminary point that the said Notice of Application had been filed more than 2 years after the date on which the parties had ceased to live as husband and wife on a bona fide domestic basis, contrary to section 8(1) of the Cohabitational Relationships Act, Chap. 45:55 (hereinafter referred to as “the Act”). Counsel further stated that no application was made to extend time for the filing of the said application in accordance with section 8(2) of the Act and that there was no evidence that undue hardship would be caused if time was not extended.

 

  1. On the 17th June 2011, pursuant to permission granted by the Court on the 1st June, 2011, the applicant filed an Amended Notice of Application seeking the following forms of relief:

 

(1) An order affirming that the applicant and the respondent shared a cohabitational relationship from 1991 to February 2011 and that the applicant be declared a cohabitant pursuant to the Cohabitational Relationships Act, 1998;

 

(2) An order that the applicant is entitled to one half share and/or interest in all those two (2) parcels of land described therein as shown in the portion coloured pink in the copy of the survey plan hereto attached and marked “A” and more particularly described and referred to as part of exhibits M.P.1 and M.P.2;

 

(3) Lump sum payment;

 

(4) Costs;

 

(5) Such further and other relief.

 

  1. On the 27th July, 2011, the respondent filed his affidavit in opposition together with his Evidence of Financial Position in questionnaire Form 9. The said affidavit in opposition was filed without prejudice to preliminary and/or other submissions which may be made under the provisions of the Act.

 

  1. The applicant filed an affidavit in reply on the 15th September, 2011 followed by a further affidavit in reply on the 16th September 2011. Following submissions by Attorneys for both parties on the 16th January, 2012 and the 30th January, 2012 in relation to the validity of the affidavits of September 15th 2011 and September 16th 2011, an order of the Court striking out the said affidavits was made on the 29th February 2012. It was agreed that it would be procedurally prudent to deal with the preliminary objection in relation to the section 8 point as part of the substantive matter and that Counsel for the respondent would address the issue further in her closing submissions.

 

  1. The trial of the matter began on the 21st March, 2012 and continued on the 23rd and 26th of March, 2012. Both parties were cross-examined on their affidavits and the Court issued directions for the filing of written submissions. In her written submissions filed on the 17th April, 2012 Attorney for the respondent alluded to the preliminary point, arguing with respect to the parties’ relationship that 2002 was “the beginning of the end” and by 2005 the bona fide domestic relationship between the parties was at an end [Paragraphs 12 and 16 of the Written Submissions of the respondent filed on the 17th April, 2012.] Attorney for the respondent submitted that there is no satisfactory evidence that up to 24th November 2008 (that is, two years before the making of the application) the parties were living together as man and wife on a bona fide domestic basis. Attorney for the respondent further submitted that the application should be refused on the ground that it was made three years too late and there is no evidence that undue hardship would be caused to the applicant if leave is not granted to make the application, no good reason having been advanced for the Court to do so.

 

  1. In his submissions filed on the 30th April, 2012, Attorney for the applicant submitted that up to the moment of filing of the Application on the 25th November, 2010, the parties lived together as husband and wife on a bona fide domestic basis and the proceedings are not caught by the 2 year restriction set out in section 8 of the Cohabitational Relationships Act No. 30 of 1998. Attorney for the respondent went on to submit that in the alternative, if the Court is of the view that leave is required, refusing leave would cause undue hardship to the applicant in this matter.

 

 

THE APPLICANT’S CASE

  1. According to the applicant, she has been a Public Servant for the past 35 years [As deposed in her Affidavit filed on the 25th November 2010.]. On the 28th August 1988, she was transferred to the Elections and Boundaries Commission (“EBC”) as an Acting Clerk III. It was there that she met the respondent who worked as a Research Officer. She says that he introduced himself to her, would sit at her desk and chat with her and over time, a platonic relationship developed between them.

 

  1. As the relationship between them grew stronger, on the respondent’s advice and insistence, the applicant obtained permission from the Head of Department to work from 7 a.m. to 3 p.m. each day instead of from 8 a.m. to 4 p.m. The parties travelled together in the respondent’s car from Port-of-Spain after which the applicant would travel by other transport to her home at Balmain, Couva where she resided with her family. It is her contention that before long, they were having lunch and going out together.
  2. During the period 1988 to 1991, the respondent would travel abroad on business and they would call each other during his time away. According to her, in 1991, on realizing that they were getting close to each other, the parties decided to live with each other as man and wife which necessitated that she move from her home into his home at Esperance Village, Diamond, San Fernando.

 

  1. At the time, the applicant was 37 years old and lived with her parents. The respondent was 39 years old. In her own words, “needless to say, my parents were not quite happy with my decision but I was advancing in age and had to decide my future.”

 

  1. According to the applicant, on the 14th June, 1991, after 3 years of knowing the respondent, she entered into a common law relationship with him. She washed both of their clothes, cooked, cleaned the home and “made groceries”. Together, they made decisions concerning the management of the household and the purchasing of items for the home and how to achieve same. She contends that the respondent promised that both of them would travel to London, England and get married in a cathedral that he had always liked.

 

  1. The applicant says that the accommodation at Esperance Village was modest. It was a downstairs apartment and comprised three rooms with a library, living room, kitchen, toilet and bath and utility room. The respondent’s relatives occupied the upstairs portion of the building. She says that their accommodation was fitted with a single bed, a stove with one functioning burner, a living room set and a small refrigerator which did not function properly. There were no cupboards in the kitchen or in the bedroom. She says that they put their clothes on the single bed which was not then in use as she brought her bed with her which they slept on. She also brought her television set, electric iron, ironing board and all kitchen utensils along with other personal items.

 

14.According to the applicant, at that time the respondent was in the process of paying off a loan which he had and so the parties agreed that she would be responsible for all groceries as well as putting gas in the respondent’s car so that they could get to and from work. According to her, they were comfortable with this arrangement because they knew and expected that things would get better one day.

 

  1. She contends that in order to make their living accommodation more habitable, it was decided that she would take a loan from Rhand Credit Union of which she is a member. The said loan was to be taken to outfit their apartment with cupboards for both the bedroom and kitchen. Accordingly, she obtained a loan of $4,950.00 from the said Credit Union in October 1991 for that purpose. She contends that the parties agreed that the respondent would pay his loan, the electricity bill and telephone and that she would pay the loan to Rhand Credit Union.

 

  1. In September 1992, they decided to replace the one burner stove at the apartment and due to the respondent’s financially strapped position, she tried to purchase same on hire purchase from Standard Distributors Limited at San Fernando. However, she discovered that she could not obtain credit as she did not have a utility bill. Therefore, she had to pay cash in the sum of $2,628.90. Later that year, she purchased a vacuum cleaner from Lux (Trinidad Limited).

 

  1. The use of the washing machine by both families often was inconvenient and so the parties decided to purchase one on hire purchase at a cost of $5,868.00. On the 26th January, 1994, the washing machine was bought in the respondent’s name with the agreement that she would pay instalments due to the fact that she did not have a utility bill. She says that she saw no problem with this arrangement as the parties were living together.

 

  1. In the meantime, another loan of $25,000.00 was taken by the respondent from First Citizens Bank to do his MBA at the University of the West Indies. Thus, it was even more imperative and understandable that her contribution towards the home would increase tremendously.

 

  1. According to the applicant, as the parties continued in their relationship, it was always their desire to make their living accommodation as comfortable as possible. As a consequence, they agreed to and made the necessary purchases for achieving this. In 1994, a dining room set was purchased for $5,868.00 in the respondent’s name with the usual arrangement that she would pay the instalments again due to the utility bill problem coupled with the respondent’s indebtedness of loan commitments.

 

  1. The applicant says that in December, 1994 the respondent raised with her the issue of extending a pre-existing concrete portion of the downstairs apartment in which they lived since he felt that sometime in the future he would get the property. She says that she strongly objected to this idea on the basis that such an arrangement would not provide any security for them. According to her, it was against that background that they then decided to look for a big piece of land in Central Trinidad which they would purchase and establish a more permanent home for themselves.

 

  1. She says that in 1994, she started acting in a travelling position in her job and the respondent took a loan of $15,000.00 from Rhand Credit Union to purchase a car in her name so that she could do her fieldwork and claim travelling allowances in order to alleviate their financial position. She says that on the 15th January, 1996, she took another loan of $12,644.25 after discussing same with the respondent. With this loan, they purchased a living room suite, a refrigerator, coffee table, juicer, pedestal fan and a chair at the cost of $10,956.05. According to the applicant, this payment was made with a cheque issued by Rhand Credit Union in her name directly to Standard Distributors. She says that the repayment of this and other loans from her Credit Union were done by way of deductions from her salary

 

  1. In 1997, the applicant and her aunt went to do business at First Citizens Bank in Gulf City. While there she saw an advertisement for the sale of a parcel of land at Freeport. On returning home that day, she discussed her observation with the respondent. Thereafter, the parties went to see the land and decided to purchase same. According to the applicant, at that time the respondent was banking with Nova Scotia, High Street, San Fernando. She says that several attempts were made by the respondent to acquire a loan from his bankers to purchase the land but he was unsuccessful.

 

  1. The applicant says that she discussed with the respondent her knowledge of one Mr. Bholai Singh, Manager at First Citizens Bank in San Fernando and it was agreed that she should approach him for them to obtain the loan This she did and an appointment was made with the Manager. After their interview, the said Manager advised that they qualified for the loan. Eventually, the loan was approved to purchase the parcel of land [Set out at paragraph (a) of the Appendix hereto attached] for $160,000.00. The applicant says that during the discussion she was of the view that she was part of the process. According to her, the respondent made comments along the lines of “when we get our land”, cementing her view that this was so. Due to their agreement, their relationship and their discussed desire, she could not and did not think otherwise.

 

  1. The applicant claims that on the day appointed to meet with the lawyers to sign the deed, she was ready to go when she received the shock of her life. The respondent told her that she did not have to accompany him to sign the deed as it was only made out in his name. Further, he told her that she did not have to worry that it was done that way as he had done so in order to avoid combining both of their salaries.

 

  1. Notwithstanding that his net salary was then approximately $4,000.00, he would pay the instalments of $3,104.77 and she would continue to take care of the household. It was further agreed that they would both make this sacrifice and pay off the loan within 7 years when both of them would be able to retire at the age of 50 years. In order to give effect to their arrangement, they had to make the additional sacrifice of using one car between them to go to and from work, leaving the other car at home. According to the applicant, she would drop the respondent in Port-of-Spain where he was attached to the EBC office on Frederick Street and then drive to Arima where she was stationed. On afternoons, she would drive back to Port-of-Spain and collect him whereupon both parties would return home. She said that on occasions, when he needed the car for personal use, she would disembark at Mount Hope on the bus route and travel via public transport to Arima. On her return trip, the respondent would pick her up at the same location. These arrangements, she said, were always at her cost.

 

  1. According to the applicant, since the inception of their relationship, the respondent was always paying off a loan. As soon as he repays one, he takes another. In September of 1988, the respondent took another loan of $10,000.00 from First Citizens Bank and in September of 1999, a further loan of $30,000.00. She says that this meant that the instalment on all three loans inclusive of the property loan when combined amounted to $4,596.44 monthly. This she claims was in excess of his net salary which at the time was $3,847.62. Effectively, the respondent was required to deposit into the bank to meet this shortfall which was sourced from his upkeep allowance of $1,100.00 for the use of his motor car as a travelling officer.

 

  1. According to the applicant, the aforementioned loans depleted his salary and the respondent paid the telephone and electricity bills from his upkeep allowance. She says that it was therefore her duty to ensure that all other expenses were met. She alleges that there were occasions when she had to purchase clothes for the respondent to go to work as he had little or no disposable income. She says that this continued until all his loans were paid off.

 

  1. After the land was purchased, the parties remained at the respondent’s residence at Esperance Village. During that time they purchased a dishwasher and a range hood from Standard. She paid the instalments on the dishwasher even though the receipts are in the respondent’s name. She also paid for the range hood. During 1997 and 1998, they purchased new cars through Government loans as Travelling Officers. Her car was a Datsun Blue Bird and his was a Sentra B13. It was agreed that due to his senior position, he would drive the Blue Bird which was a “more executive looking” car and she drove his Sentra which was smaller. However, she paid the bigger instalment for the Blue Bird which he drove as he could not afford any large instalment at that time.

 

  1. At the end of 1999, a small concrete structure comprising 2 small rooms, a toilet and bath, a small kitchen and a living room was built on the land in Freeport and the parties moved there in December, 1999. As was the norm, in order to outfit the new accommodation, they both went to Standard and bought a dryer. This was done with the same arrangement in place whereby she paid the instalments while the item was registered in his name because of the utility bill situation. At no time was either party forced to go and make this or any purchase for their convenience. She says that they went willingly as a couple, even when the transaction was done in cash she would pay and the item would only then be in her name. In January and February 2000, they visited Patrick Young Sing and purchased kitchen cupboards at a cost of $5,094.99. On those occasions, those items were in her name as she paid cash for same.

 

  1. According to the applicant, up until early 2000, their relationship remained superb. As a couple, as discussed and agreed, they were still on course to retiring at 50 or thereabout and to enjoying their investments made. Around March 2000, however, the relationship started to disintegrate. To the applicant’s astonishment, she learnt that the respondent was seeing another woman whom she knew. The respondent began denying that there was any agreement between them, her contributions to the relationship and voiced that she should leave the home with only the things bought as reflected in her name. She claims that following a particular discovery made around July, 2000 regarding the respondent’s infidelity, the respondent got on his knees and begged her for forgiveness saying that it will not happen again. She believed him and said nothing about the incident for over two months until a picture of the woman in contention fell out the pocket of his pants while she (the applicant) was washing his clothes. A quarrel ensued and the respondent destroyed the said picture.

 

  1. According to the applicant, the respondent’s behaviour caused his brother to speak to both parties. She says that pursuant to that discovery, the respondent communicated with her sparsely, only speaking when he felt like. He began to wash his clothes and cook his own food while she cooked for herself. She said that that “flip flop” state of affairs continued for about two years until the respondent relented and asked that she cook and wash his clothes again. She says that she thought of leaving him on many occasions but on contemplating her financial and other commitment in the relationship and the fact that she was not getting any younger, she continued to think that things would work out.

 

  1. She says that she sought solace in agreeing with him, among other things, to cultivate the land. According to her, both of them would stay up late at nights, sometimes past midnight, setting seeds or transplanting seedlings. She says that on most occasions, their efforts would not be successful unless she went “all the way” to help. They planted a variety of crops. She claims that when she returned home from work, she would change her clothes, put on her boots and go out onto the land and work. She did the mulching, watering, reaping, found people to buy and would take the produce to them. She says that she took no money from the sales but rather, would give it to the respondent who in turn used it for the house or to replenish crops for planting.

 

  1. The applicant asserts that notwithstanding the incidents concerning the respondent’s infidelity, she remained steadfast in her commitment to the relationship. In 2002 a television set and a refrigerator costing $20,616.00 and $24,898.00 respectively were bought with the usual arrangement in place. The items were put in the respondent’s name and she paid the bills. She says that it became possible for her to make this expenditure because of her overtime salary payments resulting from the many elections which were held in Trinidad at that time

 

  1. In December 2002, the applicant decided to spend Christmas abroad in the United States of America with her sister. The respondent said that he would like to go to visit his uncle who also resided in the USA but she would have to sponsor him. According to her, at this point she still felt that things would improve between them and so she agreed to take him. The trip cost approximately $20,000.00 which she again paid for from her election windfall. Prior to embarking upon the trip, the applicant says that the payment of $1,132.75 each for car search facility for the parties’ cars came up. She asserts that the respondent was unable to make that payment and she had to make the payments for both herself and the respondent on the 9th December 2002. On the 24th February, 2003, the outstanding balance in the sum of $4,274.80 for both their cars was again paid by her.

 

  1. According to the applicant, in October 2003, the owner of the adjoining parcel of land [Described at paragraph (b) of the Appendix hereto attached] offered to sell same to them for $33,000.00. She claims that with their joint efforts in juggling their finances and taking loans, the offer was accepted and the land was paid for on the 31st October, 2003. She says that again, as expected, she had to support the house in whatever way to achieve that.

 

  1. In March, 2004 they purchased a freezer for $5,430.00. She asserts that part of the money to purchase same was derived from the sale of the pigeon peas crop and the rest was paid for by her. According to the applicant, from 2004, the respondent was able to pay off his major loans with her assistance and was in a better financial position. However, the relationship did not get any better. She claims that he told her on numerous occasions that she did not pay any bills and that he did everything himself. He has also asked her on several occasions to leave and to take with her only what she brought into the relationship at the beginning. She told him that the relationship involved more than taking her things and leaving. The plan was to get married, invest in a parcel of land, pay for it, build a house, retire at 50 and cultivate the land. Further, she says that when the land was purchased, approval had already been granted by Town and Country Planning to subdivide same into nine-residential/agricultural lots which was an additional factor influencing their investment decision.

 

  1. From 1991 to the time of filing of her affidavit, the applicant claims that she was unable to have any substantial savings but says that she felt relieved that she participated in achieving the parties’ objective in part by investing their efforts and income in the land and house, still hoping to retire at sometime but for the fact that the respondent now asks her to leave, saying she has made no contribution to the relationship.

 

38.Referring to a $100,000.00 loan taken by the respondent on the 12th February, 2003, along with the various other loans taken by him over the years from 1994 to 2003 as mentioned above, the applicant says that these loans when combined took over 10 years to repay with her assistance.

 

  1. According to the applicant, from the inception of and during the course of the relationship every furnishing – the stove, refrigerator, coffee table, juicer, pedestal fan, dishwasher, washing machine, dining room set, living room set, dryer, vacuum cleaner, cupboards for the kitchen and bedroom – was paid for by her. She also asserts that the cost of holiday travel, as well as the purchasing of food items and an air-conditioning unit for $6,000.00 was covered by her.

 

  1. It is the applicant’s contention that over the years, the parties’ relationship was premised on the expectation that they will one day get married and it was towards this end that she aimed. She says that she freely shared in the activities of contributing financially and otherwise on various occasions and in the manner aforesaid. This she did with a view to allowing the respondent a greater capacity to build assets towards their retirement and to free him of the necessity of meeting day-to-day household expenses so as to achieve their retirement at 50 years of age. She says that she presently [As of the date of filing her affidavit on the 25th November, 2010] does the cooking and cleaning and “makes groceries” together with the respondent. She claims that there is no longer “the two pots” relationship or separate purchase of groceries which previously existed. She says that “but for the fact that we occupy the same space, the relationship between us is virtually at an end. The respondent and I continued a sexual relationship after the incident in 2000 but he has refrained from having any sexual contact with me from about 2005 up to the present time”.

 

 

THE RESPONDENT’S CASE

  1. With respect to the parcels of land referred to by the applicant [As described at paragraphs (a) and (b) of the attached Appendix], the respondent says that the said parcels were purchased by him in 1997 and 2003 respectively. In both instances, he paid the down payments himself and took loans from First Citizens Bank Limited to pay the balance of the purchase price.

 

  1. He asserts that at all material times since 1988, the applicant was an officer junior to him at the EBC where he has been permanently employed since 1984. The respondent says that he recalls greeting the applicant and chatting with her from time to time. Though he did not advise or insist that she change her working hours so that they could travel together, she did travel in his car from time to time to the Couva Flyover.

 

  1. Concerning the circumstances surrounding the commencement of living together, the respondent contends that it was the applicant who requested that she move in with him. He never asked her to live with him. He said that the request took him by surprise and it was not a development that he anticipated. He had been a bachelor and was quite happy and settled in his way of life. The applicant voluntarily decided to move out of her home in Couva to move in with him. The respondent said that the applicant never shared with him her parents’ reaction to her decision as had she done so he would have insisted that she remain at home. He says that her request to be allowed to live with him was prompted by her concern for her advancing age.

 

  1. Sometime in 1991 the applicant moved in with him. At the time, she was a Clerk III at the EBC and he was Acting Assistant Chief Election Officer. At no time did he and the applicant ever discuss marrying each other though they did discuss his two younger brothers getting married.

 

  1. According to the respondent, prior to the applicant moving in with him, cooking never posed a problem as he would eat by his aunt, mother or sisters despite the fact that he had a stove, fridge, cupboards and so forth. He would, at most, make coffee or oats for himself. Every morning, before leaving home, he would collect his lunch from his aunt on his way to work. He was very comfortable with these arrangements.

 

  1. After the applicant moved in, she did the cooking washing and cleaning but this was never done at the respondent’s request. He claims that he did his own ironing and also cleaned. Prior to the applicant moving in he had never done any cooking yet all his meals were taken care of and he never did grocery shopping and this was a matter of choice. Important decisions regarding the household were made by him. His accommodation at Esperance Village was suited to his needs. The applicant walked with her household items since he had not planned for or made any provision for her to move in with him.

 

  1. Before being appointed Assistant Chief Election Officer in August, 1991 the respondent acted in the post. Prior to the applicant “coming onto the scene”, he used to drive to work every day from his home in San Fernando. He disputes the applicant’s suggestion that he was unable to manage without her and says that he did not need her assistance to travel to work or eat. According to him, it was the applicant who wished to purchase groceries and not him. Without the applicant he was more than able to afford getting to work and eating all of his meals. He says that she came into his apartment which was comfortable and convenient for him and met it as is. It was the applicant who desired to have certain amenities and was prepared to borrow money to pay for them. She wanted a full kitchen and cupboards. He never asked or agreed that she should take a loan nor did he suggest that she purchase anything. He says that he cannot recall any discussion or agreement as the applicant suggests.

 

  1. Regarding the loan that he had around the time that the applicant borrowed her loan from Rhand Credit Union in 1991, the respondent contends that he had that loan before the parties met and it never hampered his eating or driving around. Further, he always paid the electricity and telephone bills and that never changed. The respondent disputes the applicant’s contention that he was ever financially strapped. Rather, he says that his needs are few and he does not spend money on unnecessary things just for the sake of having them. No decision was made by himself and the applicant to buy or replace household items. It was the applicant who wanted these things and bought them. In 1992, the applicant was earning approximately $35,000.00 per year as compared to his $57,000.00. The respondent claims that whatever the applicant purchased was not for him or his convenience but because she wanted to have them and as a working woman felt that she could have afforded them.

 

  1. According to the respondent, he was never and is still not interested in material things. He says that his priority was to improve his qualifications by doing an MBA. By 1994, he was already Acting Chief Election Officer and it was so for most of 1995. Thus, in both years, his salary was double that of the applicant’s: in 1994 and 1995 she earned $34,764.00 and $34,669.00 respectively while in turn he earned $69,461.00 and $87,114.00 respectively. There was no question of her contribution towards the home increasing tremendously or at all because of his loan and it did not. The respondent claims that he was more than capable of paying for appliances but the applicant never thought to ask as she knew these were her priorities and not his. He was appointed to the post of Chief Election Officer in 1997.

 

  1. The respondent denies that there was any agreement to purchase household furniture “to make their living accommodation as comfortable as possible”. On the contrary, he was very comfortable with what he had. He reiterates that it was the applicant who wanted to purchase furniture and not him and she was prepared to pay for it. According to the respondent, his loans did not render him indigent or unable to pay his bills The respondent does not recall ever raising any issue of extending on a portion of the property at Esperance Village He asserts that he had always been interested in agriculture and it had always been his ambition since he left Canada in 1983 to own and cultivate some land. Long before meeting the applicant, he had approached his own father for help in that area. Further, he and his brother met with a realtor and an acre was purchased in his name in 1990 but he, the respondent, was of the view that the land was too small. He claims that prior to meeting the applicant, he visited various properties with a view to purchasing them. He denies that he and the applicant made any decision to purchase a big piece of land in Central Trinidad to establish a more permanent home for themselves as she claims.

 

  1. He disputes the applicant’s version of events concerning the purchasing of the land. According to the respondent, the applicant was well aware of his interest in purchasing land when she informed him of an advertisement that she saw concerning land available for sale in Freeport. He claims that it was he who decided to purchase the land, not both of them as the applicant claims. According to him, she raised no objection to his plan to purchase the land nor did she attempt to raise a loan to finance the purchase.

 

52.1t is the respondent’s contention that he purchased the land after negotiations with First Citizens Bank. The applicant, he says, took no part in those negotiations nor did she ask to do so. He says that Scotiabank’s difficulty in granting the loan had nothing to do with his financial ability to pay the loan but concerned whether the land was agricultural land or residential land. According to him, First Citizens Bank, whose subsidiary owned the land, had no problem financing the purchase as it was satisfied that he had the ability to service the loan. The applicant had nothing to do with either the Scotiabank arrangement or the First Citizens Bank arrangement.

 

  1. According to the respondent “there was never a question of “us” approaching the bank to obtain a loan or of me saying “when we get our land”. As the applicant was not the purchaser of the property, no question arose regarding the signing of the deed. The respondent contends that the down payment and mortgage instalments were paid by him. According to him, in 1997, the applicant’s salary was less than half of his at the time and it is untrue that he was incapable of acquiring anything without the applicant’s assistance. The land was purchased in his name and financed by him because that was his priority. No agreement was made between them to pay off the loan in 7 years to enable them to retire at 50, though such a target goal for retirement was his desire. He claims that the applicant never expressed any such desire to him.

 

  1. Regarding the travel arrangements, the respondent says that the arrangements made were common sense arrangements. Such arrangements, done over 15 years ago, took place without much thought or planning. He contends that the applicant now seeks to put her own twist upon those events so as to distort the facts. Referring to the car that he purchased for the applicant, the respondent contends that he paid $25,000.00 for same and not $15,000.00 as the applicant asserts and says that the purpose of the car was not for her to claim travelling allowance to alleviate their financial position. According to the respondent, he was able to afford loans to pursue higher education and purchase a car rather than being cash strapped and so on as the applicant claims.

 

  1. He says that he organized his financial affairs as he saw fit and so did the applicant. She purchased whatever she pleased without let or hindrance from him. He was capable of supporting himself at all times and she was equally capable of supporting herself.

 

  1. With respect to the purchasing of items, the respondent claims that the purchasing in 1996 of a 3 piece living room suite, an 18 cubic feet refrigerator and coffee table, along with a juicer, fan and chairs, was done by him via cheque. They did not purchase a dishwasher and rangehood together as the applicant suggests. Rather, she purchased such items as the acquisition of appliances and furniture was her priority. Contrary to the applicant’s assertions, he maintains that his loans did not deplete his salary. He paid the electricity and telephone bills and no duty rested with the applicant to ensure that all other expenses were met. According to him, the applicant’s suggestion that she bought clothes for him because he was unable to is false.

 

  1. Regarding the purchasing of new cars for themselves during 1997 and 1998, the respondent asserts that he paid the $30,000.00 tax on the applicant’s foreign-used Bluebird during that period. This car was used by the applicant as the one that she previously had was giving trouble. He also bought three engines for the said vehicle and paid for all repairs and maintenance in relation to same. He bought a B-13 Sunny for himself and paid the $20,000.00 tax on that vehicle as well. According to the respondent, the larger car was more costly to maintain and as his driving was simply to work and back, he used it. The smaller Sunny B13, which was a more rugged vehicle, was used by the applicant for her field work. The only thing the applicant ever put in any of the vehicles was gas. The respondent claims that the B-13, which he is sure is still in his name, is presently [At the time of filing of his affidavit on the 27th July, 2011.] in the possession of the applicant’s brother.

 

  1. The respondent says that in 1997, in addition to the cars, he paid the down payment of $40,000.00 to purchase the first parcel of land which cost him $200,000.00. Regarding the concrete house constructed on the land, he asserts that this was paid for by him. No contribution or assistance, whether physically, financially or otherwise was made by the applicant towards the construction of the house. According to him, the applicant moved into the structure with him in December 1999 in the same way that she moved into his home in San Fernando. Again, all purchases of appliances and kitchen cupboards were solely at the applicant’s behest. As with the dishwasher, the items purchased from Patrick Young Sing remain unused.

 

  1. Contrary to the applicant’s contentions, the respondent says that their relationship was never superb. Rather, he asserts that they are quite incompatible and are two very different people with different priorities and values. He contends that it is only as a result of his very compromising nature that the parties have remained living in the same house together for years. This he said was done by him just for the sake of peace. He says that he is by nature a very peaceful, even docile person. He claims that on the other hand, the applicant is a very argumentative and ill-tempered person. There was no question of them “enjoying their investments made” as she alleges. The relationship, he says, was a rocky one even before they moved to Freeport. As the compromiser and one who strove for peace, the respondent contends that he always did what he could to ensure that she stayed peaceful.

 

  1. However, by 2002, the relationship was effectively over. According to him, in 2002 (not in 2000 as the applicant claims), she confronted him, stating that he was in a relationship with another woman and made quite a scene. In any event, he says that by this time in 2002, the relationship had broken down irretrievably and a parting of the ways was inevitable. It was simply a matter of when the applicant would move out.

 

  1. His brother never had any cause to speak to the applicant and himself as she alleges. He contends that from 2002, he and the applicant rarely spoke to each other and they lived separate lives. Contrary to her assertions, he never asked her to cook or wash for him. Rather, she cooked for herself and would on the odd occasion leave food for him if she cooked in excess. They did not agree to cultivate the land as she alleges. He asserts that when he finally began to live on the land in December 1999, he attempted to embark upon paw paw production with his brother. Though the respondent really worked at the venture in 2001, the elections of 2000, 2001 and 2002 and the Commission of Enquiry in 2002 severely curtailed those efforts as he held the office of Chief Election Officer. According to him, the applicant’s input in the cultivation venture was slight and erratic. In 2001, she may have assisted but it was not on a continuous basis. She assisted with the sale of pawpaw on a few occasions when persons carne to buy retail if he had available for sale. She was not a full time participant in the planting of the land and the sale of produce. He says that it was he who attended agricultural courses, obtained farmers’ badges and tried in his spare time to do some agriculture. It was he who had a love for the land and liked to plant it. He contends that his brother assisted him and whatever income he earned from the land was ploughed back into the land. It was he who organized the larger sales. He also assisted in the planting of string beans, peppers, melongene, pigeon peas and sorrel though it was done on a small scale

 

  1. Regarding the purchase of the television set and refrigerator in 2002, the respondent contends that he made substantial contributions towards the purchase of those items. In December 2002, though the relationship between the parties was clearly at an end, the respondent contends that the applicant kept insisting that he accompany her on her trip to the United States. He says that he generally likes staying at home and passes up opportunities to travel abroad because he cannot be bothered with the hassles of travelling. He contends that he made the trip to the United States only at the applicant’s insistence and in order to make peace, not because of any desire on his part. He says that the applicant was quite aware that since she was the one insisting that he accompany her she would have to purchase the ticket and make all the arrangements which she did without any input from him.

 

  1. Regarding the car search, he says that all payments for the cars were made by him for years. The applicant made two payments. She never paid taxes on the cars or the purchase price of the car which she used. With respect to the second parcel of land, the respondent says that the applicant was strongly opposed to and incensed at the thought of him acquiring the parcel of land adjoining the land purchased in 1997. She was of the view that he should sell a piece of the land that he already owned and build a house rather than buy more land. The purchase of the second parcel of land was not a joint venture as the applicant suggests. She was at all times very hostile to his idea and remained opposed to that purchase by him (which he did with his own funds) until the filing of her application in court.

 

  1. The respondent says that since 2002, it became clear that the parties need to be in premises separate and apart from each other rather than sharing a house in mutual hostility. He says that the applicant repeatedly threatened to leave, even proposing on one occasion that he pay rent for an apartment for her to live in and even offered to pay him a monthly rent for any time that she stayed at the house. She also proposed that she move back in with her parents before they passed away in 2003. He says that after one particularly loud and physically threatening episode from her one night, he asked her to leave which in turn resulted in a letter from her attorney dated 6th October 2005. Correspondence took place between the parties’ attorneys on 3 occasions thereafter during the year 2005.

 

65.The respondent claims that he would like the applicant to leave despite her unwillingness to do so because their relationship is at an end and it is very uncomfortable living in the same house with her as she throws words and generally makes his life unpleasant. The atmosphere in the house is very uncomfortable as she is erratic and hostile.

 

  1. The respondent contends that she did not pay for every furnishing as she claims. The only travel that the applicant paid for was the trip to the United States where she forced him to go. He says he also paid for food and the air conditioning unit despite the fact that the receipt is in her name. He maintains that he never made any promise or commitment to marry the applicant and she harboured such expectations falsely. Whatever the applicant did was geared towards trapping him into a long-term relationship with her with the ultimate objective if that failed of making a claim on his property. She is unwilling to accept that the relationship came to an end in 2002 and that she should leave. He asserts that he has no desire to be in any relationship with her or to live in the same house with or in proximity to her. Since 2002, he and the applicant had limited sexual contact which was always initiated by her. Sexual contact between them came to an end in 2005.

 

  1. Following the service of these proceedings on him in March 2011, the respondent says that a series of incidents occurred which have made living in the same house as the applicant even more uncomfortable and unbearable whereby she has made embarrassing comments to third parties. Further, he and the applicant work at the same organization and since the commencement of these proceedings she has become more difficult to work with. The respondent contends that living in close contact with the applicant is unhealthy and stressful for him. They do not have any children together and she has always held a pensionable position in the public service. However, he is of the view that she is behaving as though they are a married couple, had children and she is a homemaker without a paying job. This is far removed from reality.

 

  1. Accordingly, the respondent seeks to have the applicant’s Amended Notice of Application, filed on the 17th June, 2011, wherein she seeks half of all his property, dismissed. He says that he is approaching retirement [As at the time of filing of his affidavit of the 27th July, 2011] and would like to live his last years in peace and tranquillity cultivating his land without hindrance from the applicant.

 

 

PRELIMINARY POINT

  1. In her Form 8 filed on the 25th November, 2010, the applicant stated that the length of cohabitation was 19 years. By way of her amended Notice of Application filed on the 17th June 2011, the applicant seeks inter alia, an order affirming that the parties shared a cohabitational relationship from 1991 to February 2011. On the other hand, in his Form 9, the respondent stated that the parties cohabited for 11 years, from 1991- 2002, but still live in the same house. In her written submissions filed on the 17th April, 2012, Attorney for the respondent submitted that 2002 was the beginning of the end of the parties’ relationship and by 2005 the relationship was at an end. Accordingly, Attorney for the respondent submitted that the applicant’s Notice of Application was filed out of time and should be refused.

 

  1. Section 8 of the Act states as follows:

 

(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.

 

(2) The Court may grant leave to a cohabitant to apply for an order after the expiration of the period referred to in subsection (1) if the Court is satisfied that not to do so would cause undue hardship to the cohabitant or a child of the cohabitational relationship.

 

In Section 2(1) of the Act, the term “cohabitational relationship” is defined 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. Thus, section 8(1) stipulates a time limit within which the application by the cohabitant may be brought, that is, within 2 years from that date on which the parties ceased to live together as husband and wife on a bona fide domestic basis. Failure to bring the application within the stipulated time frame does not necessarily preclude the party from bringing the application. Rather, another avenue is available in the event that the application is not brought within the time frame set out in section 8(1) but certain steps must be taken.

 

72.As is set out in section 8(2) of the Act, the cohabitant must apply for leave to make the application out of time and it is then at the discretion of the Court to grant leave if it is satisfied that undue hardship would be suffered by the cohabitant in the absence of such leave being granted. As can be seen, provided the application is brought within two years of the day on which the parties ceased to live together as husband and wife on a bona fide domestic basis, the application can be proceeded with and the need to consider the application of section 8(2) is negated.

 

  1. Accordingly, the preliminary point to be determined by this Court in the instant matter is the point in time when the parties ceased living together as husband and wife on a bona fide domestic basis. The applicant has contended that the relationship ended around 2010 or early 2011, depending on whether one is relying on the facts as stated in her Form 8 or her Amended Notice of Application. In any event, either date relied upon by the applicant, should it be deemed accurate, would bring the Application within the stipulated time frame and thus be in compliance with section 8(1) of the Act.

 

  1. On the other hand, the respondent has contended that the relationship ended in 2002 or 2005, depending on whether one is relying on the facts as stated in his Form 9 or in written submissions filed on his behalf on the 17th April, 2012. Again, the accuracy of either date would mean that the original application, filed on the 25th November 2010 and the amended application filed on the 17th June, 2011 were made out of time.

 

  1. Though section 8(1) of the Act refers to the parties ceasing to live together on a “bona fide domestic basis” and the definition of a “cohabitational relationship” set out in section 2(1) of the Act again makes reference to the term “bona fide domestic basis” in stating that the phrase “cohabitational relationship” refers to “the relationship between cohabitants who not being married to each other are living or have lived together on a bona fide domestic basis”, it is noteworthy that nowhere in the Act is the term “bona fide domestic basis” defined.

 

  1. In the well-known and oft-cited case of Delzine v. Stowe HCA 3007 of 2001, Mendonca J., (as he then was), embarked upon an examination of the phrase “living together on a bona fide domestic basis” in light of the facts of the case before him. Mendonca J. was of the view that the New South Wales Property (Relationships) Act 1984 (“NSW Act”) bore some similarity to the Trinidad and Tobago Act and drew reference to Section 4(2) of the former which states that in determining whether two persons are in a de facto relationship, all of 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-

 

  1. The duration of the relationship,

 

  1. The nature and extent of common residence,

 

  1. Whether or not a sexual relationship exists,

 

  1. The degree of financial dependence or interdependence, and any arrangements for financial support between the parties,

 

  1. The ownership, use and acquisition of property,

 

  1. The degree of mutual commitment to shared life,

 

  1. The care and support of children,

 

  1. The performance of household duties,

 

  1. The reputation and public aspects of the relationship.

 

Section 4(3) of the NSW Act provides that no finding in respect of any of the matters mentioned in (a) to (i) or in respect of any combination of them is to be regarded as necessary for the existence of a de facto relationship and the Court in 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

77.Having acknowledged that no similar provision to that highlighted above may be found in the Trinidad and Tobago legislation, Mendonca J., opined that the Court in this jurisdiction may regard the approach taken in Australia as being of practical utility in determining the existence of a cohabitational relationship, while still bringing its own practical knowledge and experience to bear. It was eventually held on the facts of that case that a cohabitational relationship continued not until 1997 as the Plaintiff alleged but until 2000 as claimed by the Defendant therein. In coming to his decision, the learned judge appeared to bear in mind, inter alia, the fact that even though the relationship deteriorated by 1997, the Defendant continued to live in the family home. There, his meals were prepared and his laundry done along with the rest of the family. He was allowed to use the Coastal drive property as his own and when he left in October 2000, he left with a vehicle registered in both parties’ names. Further, before that, a vehicle registered in the Defendant’s name was sold and the Plaintiff received part of the proceeds. Mendonca J., found that in the circumstances, while from 1997 he accepted that the parties stopped having a sexual relationship and the relationship deteriorated he was not prepared to say that it ceased and thus concluded that the cohabitational relationship between them continued up until October 2000 when the Plaintiff left the family home as a result of a protection order obtained by the Defendant.

 

  1. I turn now to the facts of the case before me. Both parties made reference to a particular occasion on which the applicant confronted the respondent with allegations of infidelity. According to the applicant, this incident occurred in 2000. The respondent disputes this, saying the said incident occurred in 2002. In either case, what transpired after in terms of how the parties interacted with each other and conducted their lives is of importance in determining whether they lived together as husband and wife on a bona fide domestic basis beyond that point and if so, for how long.

 

  1. The applicant says that after that event, communication with the respondent became sparse and he began to do his laundry himself and cook for himself while she would cook for her herself. She claims that this state of affairs continued for two years until the respondent relented and asked that she cook and wash his clothes again. The respondent for his part claims that from 2002 onwards he and the applicant hardly spoke and they lived separate lives. He denies ever asking her to cook and wash for him. Attorney for the respondent submitted in her written closing submissions that although there was no alteration in the living arrangements, that is, the parties continued to live in the same house, 2002 was the beginning of the end and by 2005 the relationship was at an end. Much weight is placed by the respondent’s Attorney on the letter dated 6th October 2005 from the applicant’s Attorney at Law which stated that “it is with regret that our client after some fifteen years of this relationship has to endure your complaints of differences in the relationship to the extent that you have arbiturally (sic) decided and requested her to leave the premises. Our client is prepared to accede to your request…”. Further reference is made to the response to that letter from the respondent’s attorney which stated, inter alia, that “the relationship is at an end and it is simply a question of the parties parting amicably”. Counsel goes on to state that the applicant’s Attorney’s response to that letter does not deny that the relationship was at an end.

 

  1. In support of her arguments, Counsel for the respondent drew reference to the case of Irwin Mohammed v. Jasmin Albert CA 165 of 2004 wherein Warner JA., at paragraph (24) noted that the phrase “bona fide domestic basis” connotes “ties pertaining to home, household and family affairs. Crucial factors would be society, support and protection. These are the hallmarks of domesticity”. Attorney for the respondent noted that in that case, the fact that the parties did not live together under the same roof did not preclude a finding that the parties were in a cohabitational relationship and thus submitted that so too, the fact that the parties in the instant matter live under the same roof does not automatically mean that they are still in a cohabitational relationship, that is living together as husband and wife on a bona fide domestic basis.

 

81.I agree with Attorney for the respondent to the extent that living together under the same roof does not automatically lead to the conclusion that the parties are living together as husband and wife on a bona fide domestic basis. All of the circumstances of the case must be taken into account and as Warner JA., stated in Mohammed v. Albert “each case must be determined upon its own peculiar facts”.

 

  1. The fact that the parties in the instant matter continue living together under the same roof is but one factor to be taken into account when considering the totality of the evidence. The respondent has sought to explain the fact that the parties continue to live under the same roof despite his alleged desire to have the respondent vacate the premises by saying that he is a non-confrontational and even docile person. He stated under cross-examination that once a person is not violent or so forth, he is not the type to force someone out of the house. While this may well be so, it indeed appears a bit odd that though the respondent complains of the applicant’s erratic behaviour and embarrassing ways and refers to her intention to make his life a living hell he has made no attempt to evict her from the premises. In fact, regarding what preceded the 2005 first letter from her attorney to him, the respondent stated that the applicant constantly threatened to leave and after one particularly loud and physically threatening episode he asked her to leave which resulted in a letter from her attorney. He also said that he remembers telling her that she should stop threatening and leave. The impression that is conveyed to me, however, is that these remarks which were to the effect that she should leave were not proactive steps taken on his part, but rather emotive responses on occasions when they argued. This impression is further confirmed by the fact that it appears that despite the back and forth letters of their respective attorneys on four occasions in 2005, nothing seemed to have come out of the correspondence and the parties continued living together.

 

  1. As was said before, living together under the same roof is but one factor to be considered in determining whether the parties continued to be involved in a cohabitational relationship as defined in section 2(1) of the Act. It was further revealed, however, on cross-examination that the parties do not merely still live under the same roof but also still sleep in the same bed. The respondent contends that he and the applicant had limited sexual contact which he says she always initiated but this came to an end completely by 2005. However, when asked whether he had sexual contact with her after her return from a trip in 2010, the respondent said that he was unable to recall whether this was so. He went on to admit that it could have happened. He was, however, able to recall that when she returned on that occasion she came to the house with his brother and that he may have assisted her with her bags. It is somewhat curious to me that he would be able to recall such minor events of that day but yet have his memory fail him with respect to whether or not the parties engaged in sexual activity upon her return. In this regard, I believe that the respondent was skirting around the truth in relation to this issue and accept the applicant’s contention that they did in fact engage in sexual intercourse upon her return. That being said, while I accept that one incident of sexual contact by no means lends itself to the existence of a cohabitational relationship between the parties, I also note that the cessation of a sexual relationship between the parties does not necessarily result in the conclusion that the cohabitational relationship between the parties is at an end. [See Delzine v. Stowe (supra).] As was said before, all the circumstances of the case must be considered.

 

  1. The respondent stated in his affidavit evidence that from 2002 onwards, the parties hardly spoke to each other and that they lived separate lives. The applicant on the other hand, at the time of filing her affidavit on the 25th November, 2010 stated in her concluding paragraph that there “is no longer the two pots relationship or separate purchase of groceries which previously existed” but she herself goes on to say that “but for the fact that we occupy the same space, our relationship between us is virtually at an end”. Reliance was placed by the respondent’s Attorney on that last statement in support of her contentions regarding the date of termination of the cohabitational relationship. However, one must be mindful that the court is concerned with whether the totality of the evidence indicates that the parties lived together as husband and wife on a bona fide domestic basis.

 

  1. Statements made by the parties are but one factor to consider and may very well contradict the actual manner in which the parties related to each other. Such statements may belie the true nature of the relationship as gleaned from the facts. Despite stating that the relationship ended in 2002 and that they live separate lives, in cross-examination when asked about their attending work functions together, the respondent indicated that their jobs required them to attend the same functions. When questioned as to whether he would drive both of them to the functions, he was unable to recall whether this was so. The applicant, however, was very clear that they both attended work related and public functions together and that the respondent would drive.
  2. Though the applicant contends that she cooks and cleans and does grocery shopping with the respondent, the respondent says that he cooks for himself. He said that on one occasion he recalls buying two hams and asking her to bake them as it was Christmas time. He also admitted that she cooked for herself and would sometimes leave leftovers for him, giving the distinct impression that he would eat sometimes from what she cooked. These actions fly in the face of the respondent’s contention that the parties were living separate lives, particularly when combined with the fact that they continued sleeping in the same bed. On the evidence, I prefer the applicant’s version of events that she resumed cooking and cleaning for both parties.

 

  1. The applicant also made reference to a trip taken with the respondent to the United States in December, 2002. According to the respondent’s Form 9 and affidavit evidence, the relationship was at an end in 2002. The applicant’s evidence is that she had decided to spend Christmas abroad with her sister and the respondent said that he would like to visit his uncle in the USA but that she, the applicant, would have to pay for him. The respondent admitted to going abroad with the applicant but stated that she kept insisting that he accompany her on the trip and that he only went at her insistence and in order to make peace and not because of any desire on his part. He says that he only went because the applicant forced him to go [See paragraph 42 of the respondent’s affidavit of the 276 July, 2011.].

 

88.Even if I were to accept the respondent’s contention that he is docile in nature, it is difficult to see how the applicant could have forced the respondent, a grown man in his fifties, to go abroad on a trip with her, unless it was in the nature of a wife convincing or insisting that her husband goes along. Even if it is true that she insisted that he accompany her, this does not change the fact that he did so of his own free will. Moreover, not only did he accompany her abroad, the parties stayed with his relative for a few days, then with the applicant’s and then back again with his relatives.

 

  1. Under cross-examination, the respondent also admitted to purchasing health insurance in 2004/2005 for both of them. He also admitted that he may have used her card to withdraw money on an occasion in 2009 and stated that this was done at the applicant’s behest. In 2007, the applicant’s brother died and he assisted her financially with the expenses associated with same and read the scripture at the funeral. Then there was the cultivation of the land. Both parties agree that the applicant assisted. The respondent, however, confined her assistance to transplanting seedling and sometimes selling produce and insisted that her assistance was sporadic. According to the applicant, they attended events together and he would drive. The respondent again was unable to recall if he would drive them there or if he went with her as she said but explained their attendance by way of knowing the same people. On the evidence, I prefer the evidence of the applicant when she says that they attended various functions together and he would drive.

 

  1. Having had the benefit of observing the witnesses under cross-examination, I found the applicant generally to be forthright with her answers and she did not waver in her version of events. On the other hand, in response to questions asked of him, the respondent often stated that he was unable to recall and appeared to be relying on ignorance as a means of denying the applicant’s version of events. He also appeared on occasions to be looking to the applicant for answers prior to answering what was asked of him.

 

  1. I am of the view that the evidence supports the conclusion that the parties did in fact live together as husband and wife on a bona fide domestic basis at least up until the filing of the original application of the 25th November, 2010. Subsequent to 2002, the parties continued living together under the same roof and they slept in the same bed. It was the respondent himself who claimed in his affidavit evidence that since 2002, it became clear that the parties needed to be in premises separate and apart from each other, rather than sharing a house in mutual hostility. If this is indeed the case, it is very difficult to comprehend how even the most docile of persons would continue living together for almost a decade longer and moreover, share the same bed. The circumstances could not have been as unpalatable as the respondent suggests and I am of the view that such a statement was made as part of a concerted attempt to portray the cohabitational relationship as being at end. The applicant cooked food for him and cleaned and would go to the grocery with the respondent. In 2004/2005 he took out health insurance for both of them. They attended events together and spent Christmas of 2010 abroad together with both his relatives and hers.

 

  1. As with most relationships, theirs was not without problems, and it may be said that the relationship was set back for a while around the time when the applicant confronted the respondent about his infidelity, where thereafter there was a lack of communication between them and the respondent began to cook and do his own laundry. This is not uncommon even with married couples but it does not necessarily mean that the relationship comes to an end. However, I accept the applicant’s evidence that this state of affairs did not continue indefinitely and she resumed cooking and doing his laundry after sometime

 

  1. The question raised here is whether periods of temporary separation bring the cohabitational relationship to an end. This issue was considered in the case of Greenwood v. Merkel 120041 NSWSC 43 where the New South Wales Supreme Court held that a 6 year relationship in which the parties maintained separate residences, but spent most nights of the week together at one or the other of them (with the exception of a 6-month period in which the female partner stayed in the male partner’s residence) was a de facto relationship. The Court held that “they lived together as husband and wife on a bona fide domestic basis in the way that suited them, and such breaks as there were, were too brief to destroy the continuity of their de facto relationship within the meaning of the statute. Many a normal marriage may suffer the disturbance of similar intermissions”. [See also the case of Howland v. Ellis 120011 NSWCA 456 for a similar finding].

 

  1. Regarding the significance of the Attorneys’ letters in 2005, it is not unfathomable that cohabitants may fall out and resort to legal mechanisms without any real intention of following through with same. This appears to have been the case here, for though the letters were written in 2005, the parties continued residing together (with him taking insurance out for her in 2006) and it was not until some 5 years later did the applicant file her Notice of Application. I find that many of the factors mentioned in section 4(2) of the NSW Act which Mendonca J., found to be of useful guidance in this jurisdiction were present in this relationship until at least the filing of the first application in November, 2010. In light of all of the aforementioned, I find that the cohabitational relationship between the parties did not come to an end in 2002 or 2005 as the respondent alleges, but rather, it existed up until the filing of the Notice of Application on the 25th November, 2010. Accordingly, the application was filed on time and thus was in compliance with section 8(1) of the Act. The preliminary objection raised by Counsel for the respondent is therefore overruled.

 

 

ISSUES FOR DETERMINATION AT TRIAL

  1. Having determined that the application was filed on time, I move now to a consideration of the thrust of the applicant’s Amended Notice of Application. As was said earlier, the applicant is seeking an order that she is entitled to one half share and/or interest in two (2) parcels of land described in the Appendix attached hereto, a lump sum payment, costs and such further and other relief. As such, the issues that arise for determination are as follows:

 

(a) Whether the applicant is entitled to an interest in either or both of the parcels of land described in the Appendix attached hereto;

 

(b) If so, what share in the said parcel or parcels of land is the applicant entitled to;

 

(c) Whether the applicant is also entitled to a lump sum payment and if so, what is the quantum of such lump sum;

 

(d) Whether the applicant is entitled to any further relief and if so, what further relief is she entitled to.

 

 

The Law and Applicable Legal Principles

  1. Section 6 of the Cohabitational Relationships Act Chap 45:55 (“the Act) provides that a cohabitant may apply to the High Court for the granting of an adjustment of property order or maintenance order. Section 7 of the Act sets out certain prerequisites, the satisfaction of any one of which would entitle a cohabitant to seek relief under section 6. Section 7 requires that the Court must be 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 the order would result in grave injustice to the applicant.

 

97.Where the Court is satisfied that the applicant has established the criteria laid down in section 7 of the Act the Court may, pursuant to Section 10(1) of the Act, make any adjustment order that appears to the Court to be “just and equitable”. In doing so, the Court must have 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;

 

(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.

 

98.A comparative reading of the Act and the Matrimonial Proceedings and Property Act Chap. 45:51 (“MPPA”) indicates that cohabitants and spouses are not regarded in law as being on equal footing. Indeed, section 10 of the Act contains limiting factors which circumscribe the circumstances under which an adjustment order may be made. On the other hand, the MPPA does not contain such limiting factors. Moreover, under the Act, the financial contribution of the parties is the focal point. As was aptly put by Ramkerrysingh J., in Paula Lutchman v. Joseph Callender FH001058 of 2009 –

 

“By section 10 it is not enough for the applicant to show a contribution to the relationship. The division of property is influenced very much by financial contribution to the property or financial resources and future needs do not play a part. While some consideration is given to nonfinancial and parenting contributions, it is not given the same weight as in a formal marriage. Financial contribution takes centre stage and it is for the court to determine what weight to give to the non-financial contribution”.

 

Expanding further, Ramkerrysingh J., goes on to state that –

 

“In order to be awarded a beneficial interest in property, the applicant must first show a financial contribution, direct or indirect to the property at issue. A mere contribution to the relationship is not sufficient unless it is also a contribution to the acquisition or improvement of that property. Subsection 1(b) goes on to provide some qualifying contributions which make subsection 1 (a) not as restrictive as first appears but still does not open the door wide enough to allow contributions that would otherwise be accepted under marital situations”.

 

  1. In terms of the differing considerations that apply to married persons as opposed to cohabitants, Mendonca J., in Delzine v. Stowe [Supra] had this to say:

 

“…it must be recognized that it was not the intention of Parliament to accord to cohabitants the same status as a married couple… great caution should be exercised before importing into a cohabitational relationship context any matter which would be of importance in an inquiry in a marital context such as the needs of the parties or the standard of living enjoyed during the relationship. The need for caution is emphasized when it is noted that in the green paper despite drawing specific reference to certain matters which the Court takes into account under the Matrimonial Proceedings and Property Act Chap. 45:51 such as the financial needs, obligations and responsibilities of each party it was only recommended in the case of a cohabitational relationship that the Court should have regard to financial and other contributions of the parties. This recommendation seems to have found favour in Section 10 of the Act which mentions only the question of contributions and the right, title, interest or claim of a legal spouse in the property in dispute.”

 

  1. Bearing in mind the aforementioned dicta, I return to a consideration of the facts before me. It is the applicant’s case that she made financial contributions to the household, from the purchasing of groceries and clothing, to the paying of car search facilities, to the purchasing of an array of appliances and furnishings which in turn enabled the respondent to pay off the various loans which he had taken out over the years that they were together. She contends that the loans left him with little disposable income and so it was agreed between them that she would cover other various costs thereby giving him the financial latitude to meet the loan payments. While the respondent admits to taking out various loans, he denies ever having any such agreement with the applicant and contends that whatever she did was done on her own. Further, he says that he also made financial contributions towards the purchase of items for the home and maintains that the parcels of land in question were purchased by him without any financial input from the applicant. He denies ever being financially incapable of supporting himself as the applicant suggests.

 

  1. With respect to her financial contributions, the applicant contends that when she first met the respondent, he was in the process of paying off a loan and so it was agreed between them that she would be responsible for all the groceries which at the time amounted to $1,000.00 per month and the putting of gas in his car which amounted to $400.00 per month. The respondent denies ever having such an arrangement with the applicant. While asserting that he never needed her assistance as suggested, I note that he does not deny that she in fact covered those costs claimed by her.

 

  1. She also claims that she took out a loan of $4,950.00 from Rhand Credit Union to facilitate the outfitting of their apartment with cupboards for the kitchen and bedroom. According to her it was agreed that the respondent would pay his loan, the electricity bill and telephone bill while she would pay the loan to Rhand Credit Union and take care of the groceries and gas for them to go to work. She also claimed to have purchased a stove for $2,628.90 in 1992 as well as a vacuum cleaner. She says that it was agreed between them that they would purchase a washing machine and so in 1994, it was purchased for $5,868.00. According to her the arrangement was that it was bought in the respondent’s name as she had no utility bill in her name but that she would pay the instalments. For the sake of convenience I shall hereafter refer to this arrangement as “the payment arrangement”.

 

  1. In the meantime the respondent took out a further loan of $25,000.00 to do his MBA. According to her, in an attempt to fulfil their desire to make their living accommodation as comfortable as possible they agreed to make the necessary purchases to achieve this. She says that in 1994 a dining room set was purchased for $5,868.00 using the payment arrangement partly due to his indebtedness of loan commitments. In 1996 after discussing it with the respondent, she says that she took out another loan of $12,644.25 with which they bought a living room suite, a refrigerator, coffee table, juicier, pedestal fan and a chair for $10,956.05. She says that this payment was made with a cheque issued by Rhand Credit Union in her name directly to Standard Distributors. According to her, the repayment of this and other loans were done by means of deductions from her salary.

 

  1. According to her, due to the depletion of his salary by the various loans, she had the responsibility of meeting other expenses. There were occasions, she said, when she would buy clothes for the respondent to go to work as he had little disposable income. This continued until all his loans were paid off. By way of the payment arrangement, they purchased a dishwasher. She also purchased a rangehood. When they bought their new cars, she said that she paid the bigger instalment for the Bluebird which he drove as he could not afford to do same at the time. After they moved to the Freeport Property, a dryer was bought using the payment arrangement. She purchased kitchen cupboards in 2000 for $5,094.99. According to her, in 2002, a television set was purchased for $20,616.00 and a refrigerator was purchased for $24,898.00 by way of the payment arrangement. She also paid for a trip abroad which included the respondent, a trip which amounted to $20,000.00. She says that she also paid for car search facility for his car for $1,132.75 and in 2003 paid the outstanding balance for their cars in the sum of $4,274.80. According to her, in 2004, a freezer costing $5,430.00 was partially paid for by her. She also claims to have purchased an air conditioning unit for $6,000.00. In most instances, the applicant was able to support her claims with documentary evidence.

 

  1. In response to the applicant’s claims of purchasing the aforementioned items, the respondent disputes the purchase of the television set and the refrigerator in 2002 which cost $20,616.00 and $24,898.00 respectively. He says that he recalls making substantial contributions towards the purchase of same. He also disputes her claims of having purchased a 3-piece living room suite, an 18 cubic feet refrigerator, coffee table, juicer, fan and chairs, saying that he recalls paying for same by cheque. I note that the applicant, who has managed to produce receipts in relation to almost all of her claims concerning the expenditure of money, apart from producing the invoices made out in the respondent’s name, was unable to provide any proof to support her claim that a cheque was issued by Rhand Credit Union in her name directly to Standard Distributors for the items in contention. That being said, I note that apart from the invoices in his name, the respondent has provided no proof to show that he paid for the items as claimed by cheque. Bearing in mind that he did not dispute that the applicant paid instalments for items on various occasions where the invoice was issued in his name, I do not attach much weight to the fact that on this occasion, the invoice was issued in his name.

 

  1. Moreover, I note that although in his affidavit of the 27th July 2011, the respondent claims to have purchased the said items by cheque, in written submissions filed on his behalf on the 17th April, 2012, Attorney for the respondent lists the very items that the applicant claims to have purchased from Standard Distributors as being purchased by the applicant on hire purchase but on the respondent’s name in paragraph (30) of her submissions which contains “material UNDISPUTED evidence” [emphasis mine].

 

  1. Attorney for the respondent goes on to state that there is dispute between the parties regarding other purchases such as the television set and refrigerator purchased in 2002, the purchase of the freezer and the purchase of the air conditioning unit. The other items stated under paragraph 30(xi)(e) of her submissions are not mentioned. I am of the view that neither party was able to produce sufficient documentary evidence in support of his or her claim in relation to these items. However, the added discrepancy between the respondent’s affidavit evidence and his written submissions leads me to prefer the applicant’s version of events in relation to these items.

 

  1. In his evidence, the respondent disputes the applicant’s suggestion that they agreed to purchase the plethora of items, contending that he was comfortable with what he originally possessed and it was the applicant who purchased furnishings and appliances of her own volition. From his evidence, I get the distinct impression that the respondent in so claiming, is attempting to distance himself from the applicant’s purchases and belittle any such financial contributions made by her to the relationship by trying to portray such financial contributions as benefitting her alone, as such were not necessary for him While it may be so that the respondent is by nature a simple man who would not generally hassle himself with indulgences such as new furniture and appliances on his own accord and it is the applicant who places priority on such things, nonetheless, I get the impression that he was quite prepared in any event to enjoy the use of and benefit from such items and furnishings. Under cross-examination the applicant, in answer to Counsel for the respondent stated emphatically that “everything that was bought, he had the last say. Even with the colour. If he did not like that colour, we would not buy it.” And when asked whether the respondent could be described as “a placid, docile kind of fella”, she responded by saying, “In his own little way but even being so he will make sure, what he wants he get that done.” Further, when pressed that she was the one with the “dominant kind of personality”, she answered that “he is more dominant than me.” Having assessed the evidence of both parties and having seen the manner in which they gave their evidence, I am of the opinion that those statements reflect to a great extent the personalities of the parties.

 

  1. Presumably, when the applicant cooked, cleaned and did his laundry, the very appliances purchased would have been put to use. Though it is possible that the appliances and furnishings may have been acquired at the applicant’s behest, it is unfair of the respondent having generally benefitted from such items, to turn now and attempt to ward off such financial contributions from the applicant by essentially labelling such purchases as being within her own realm. Not once did the respondent in his affidavit or oral testimony say, for example, that he did not use the items as they were hers and so presumably, they were shared during the course of the relationship.

 

  1. The respondent himself admitted to purchasing a vehicle for the applicant, paying taxes on her car and placing her on his insurance policy during the relationship. She in turn alleges that she purchased groceries, paid for gas, paid for car search, and paid instalments on the various appliances. The parties generally did not dispute such assertions by each other (apart from the respondent claiming to also have purchased some of the appliances and food himself). There was thus some level of mutualism at play in the relationship. Accordingly, from the evidence, I do not think that even if the respondent is to be believed where he says that he and the applicant never agreed to purchase items as she claimed but rather, that they were made by her solely without his input, such items would not have been exclusively enjoyed by her during the course of the relationship but that he too would have enjoyed the use of them.

 

  1. The applicant has alleged that over the years, their relationship was premised on the expectation that they will one day get married and so she invested in it and contributed financially and otherwise. This she did with a view towards giving the respondent a greater capacity to build assets towards their retirement and freeing him of the hassles of meeting day-to-day expenses. For his part, the respondent denies ever promising to marry the applicant and says that she harboured such sentiments not as a result of anything said by him Whether or not this is so, the fact of the matter is that over the course of the approximately two decades for which the cohabitational relationship spanned, the applicant made substantial financial contributions to the home which cannot be overlooked.

 

  1. The respondent has alleged throughout his evidence that at all material times, his salary greatly exceeded that of the applicant and so it is implausible for her to suggest that he was ever financially strapped or needed her to contribute as she did. I note that under cross-examination the respondent admitted to being left at some point with little disposable income from his loans. As such, it is not unfathomable that the applicant had covered other costs during this time as she claimed. In any event, even if that financial situation of the respondent existed for a short period of time and at all other times he was never cash strapped or actually needed her to contribute, from the evidence, I get the impression that even then, he had no problem taking advantage of her willingness to pay for “niceties”, even though he contends that such were not needed.

 

  1. It is essentially the applicant’s case that the parties had formed an agreement to the effect that the respondent would pay off his loans while she would pay for other incidental costs of the household. The respondent has repeatedly denied forming such an agreement. Regardless of who is to be believed, the crux of the matter is that it is the financial contributions of the parties to the property that take centre stage in determining what award, if any, the applicant is entitled to. While she appears to have paid for the major portion of the furnishings in the home, it is the respondent who purchased the first parcel of land in 1997 for $160,000.00. No financial contribution towards the purchase price was made by the applicant.

 

  1. The respondent also contends that it was he who financed the construction of the structure in which they live on the first parcel of land. Indeed, I note that the applicant, who was able to give a detailed account of purchases made by her over the years as well as other events occurring during their relationship, mentioned that the respondent paid the loans as well as electricity and telephone bills. She appeared to gloss over the issue of who financed the construction of the structure on the first parcel of land, saying somewhat vaguely “at the end of 1999 a small concrete structure… was built on the land in Freeport and we both moved in…”. I accept the respondent’s assertion that it was he who financed the purchase of the land and construction of the home upon the said land without any financial assistance from the applicant.
  2. Regarding the second parcel of land purchased for $33,000.00, the respondent says it was he who purchased same with his own funds and that the applicant had always been strongly opposed to the idea of purchasing that piece of land as she believed that the money should have been spent otherwise to build a house. Again, I find that the applicant adopted a somewhat vague approach when addressing the purchase of the second parcel of land, stating that “with our joint efforts in juggling finances, taking loans the offer was accepted and the land was paid for on the 31.1 October, 2009.” The issue of exactly which party funded the purchase of the land is not addressed. She went on to say that “again as expected I had to support the house in whatever way to achieve this.” This latter statement leads me to believe that she was referring to the situation where she asserts that he pays off the loans while she pays the costs of other various transactions. Further, the cheque for $33,000.00 for the land was made out in the respondent’s name. Additionally, the respondent’s assertion that he paid the purchase price for the land was not challenged under cross-examination. As such, I accept the respondent’s evidence that he purchased the said parcel of land and find that, as with the first parcel of land, the applicant did not finance its acquisition. I also believe the respondent to be telling the truth when he claims that the applicant was opposed to the purchase of the second parcel of land as she believed that he should instead have constructed a house, for when questioned under cross-examination, she voiced sentiments to that effect.

 

 

CONSIDERATION OF NON- FINANCIAL CONTRIBUTIONS

  1. Having considered the financial contributions of the parties, I move now to a consideration of the non-financial contributions. The applicant contends that during the course of the relationship, she cleaned and did the respondent’s laundry. She also cooked for him and when she went abroad, she would leave labelled containers of food in the refrigerator for him. According to her, she would also purchase clothes for him. She admits that after the discovery of his infidelity, relations between them became strained and for a two year period, the respondent cooked for himself and did his own laundry. This however ceased, she says, after he asked her to resume doing such tasks.

 

  1. The respondent, for his part claims that after 2002, he cooked his own meals and cleaned as well. However, as was said earlier, I prefer the applicant’s version of events when it relates to this issue. As with her financial contributions, the respondent has contended that whatever tasks the applicant did, such as cooking and cleaning, she did by choice and they were not deemed necessary by him as he says that he was quite able to manage on his own as he had done prior to meeting her. Again, as I stated earlier in relation to her financial contributions, while this may indeed be so, the respondent nonetheless had no problem benefitting from such non-financial contributions over the course of their cohabitational relationship which spanned almost 2 decades. It appears that this is what kept them together for so long.

 

  1. The respondent in his affidavit evidence denied that the applicant assisted in any form with the construction of the house. However, under cross-examination, he conceded that she did indeed help with the puttying. In relation to the second parcel of land, the applicant says that she assisted the respondent with the cultivation of the land and selling the produce, The respondent says that he cannot recall the applicant planting but admits that she assisted with reaping. However, he says that her assistance was sporadic and most of the work was done by his brother and himself.

 

  1. Bearing in mind that it is her financial contributions to the property that are paramount in determining any adjustment order to the applicant, I nonetheless shall give due regard to her non-financial contributions which occurred over a lengthy period when arriving at my decision.

 

  1. Throughout her evidence, the applicant repeatedly stressed that her investment in the relationship, monetarily and otherwise, was based on their plans which included the respondent’s promise to marry her. The respondent for his part denies that he ever made any such promise. I believe the applicant to be telling the truth when she said that such a promise was made by the applicant and that it was on this basis that she invested her efforts and money over the course of the relationship. This is not to say that I am of the view that the respondent necessarily believed in or was genuine in terms of having any real intention to follow through with same. Having been involved in a cohabitational relationship with the applicant for almost two decades, I get the impression that the respondent was quite content with the way things were between them and was quite prepared to maintain the status quo. When asked about whether he ever raised the question of marriage with her, the respondent claims that he only did so in relation to the marriage of his brother. While I do not doubt that the respondent may have spoken with the applicant about his brother’s marriage at the same time, this does not contradict or take away from the applicant’s assertion that he promised to marry her. From a totality of the evidence the applicant’s assertion is to be believed.

 

  1. In this regard, the dicta of Mendonca JA., in Mohammed v. Albert Civ. App. 165 of 2004 serves as a useful guide. Therein, the learned judge stated that-

 

“What is clear from the authorities 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 are made, may lead to the court 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 incidents of the relationship as a whole”.

 

  1. From a totality of the evidence the applicant’s assertion that she invested her time, effort and money in the relationship because the respondent held out to her the expectation that they will one day get married is more credible and probable than the respondent’s version of the facts.

 

 

ANALYSIS AND DECISION

  1. The main assets which arise for consideration are the two parcels of land outlined in the Appendix attached. Having considered the evidence, I am of the view that the applicant did not make any direct financial contributions to the acquisition of the property. That being said, I conclude that the applicant did invest a sizeable amount of money in the improvement of the property in terms of contributing substantially to the furnishing of the premises on the first parcel of land. Other financial contributions were made by her towards the welfare of the family in terms of paying for gas, purchasing groceries and paying for car search on two occasions all of which made it easier for the respondent to honour his loans, acquire the said properties and construct the home upon the first parcel of land.

 

  1. Additionally, her contributions in terms of looking after the household by cooking, cleaning and washing shall also be taken into account. It is clear that the applicant invested much of her time, effort and finances into their lives together. Further, I find that there was a deliberate attempt on the part of the respondent to downplay her contributions be they financial or otherwise by harping on the fact that such contributions were made of her own volition when he very well knew that both parties were able to enjoy the fruits of such contributions over an extensive period of time.

 

  1. It was, however, the respondent who covered the cost of purchasing both parcels of land for the total sum of $193,000.00 [160,000+33,000=193000]. It was he who also financed the construction of a home upon the first parcel of land. The applicant claims a half share in both parcels of land but I am of the view that the parties’ financial contributions towards the properties in question do not rest on equal footing and an equal division of the said properties cannot be justified.

 

  1. In addition to seeking a half share in both of the properties in question, the applicant also seeks a lump sum payment along with further and other relief. In support of the claim for a lump sum, Attorney for the applicant has directed the Court’s attention to the fact that the respondent retires from a permanent pensionable public service position of Chief Election Officer having served over 24 years, the fact that he will be the recipient of a large monthly pension and a lump sum gratuity and that in addition to savings, he has life insurance with American Life (Algico) and Guardian Life.

 

  1. However, such considerations would be to import into a cohabitational relationship matter, considerations rightly within the realm of a matter involving married spouses, effectively equating the treatment of married persons and cohabitants which is not what the law intended and which was made clear by Mendonca J., in Delzine v Stowe. Further, on a proper construction of section 411) of the Act, an applicant is allowed to obtain either (a) an adjustment of property order; or (b) a maintenance order; or (c) an order for a lump sum payment but not more than one relief. So that the applicant will not be entitled to an adjustment order as well as an order for maintenance.

 

  1. In arriving at my decision, account was taken in particular of the following:

 

(i)   that the applicant did not contribute financially to the acquisition of two parcels of land in question; that the applicant made substantial financial contributions towards the furnishing of the home on the first parcel of land;

 

(iii)  that the applicant made other various financial contributions towards the household, as did the respondent;

 

(iv)  the contributions made by the applicant in terms of looking after the home and assisting with the cultivation of the second parcel of land;

 

(v)  That the applicant has already received some compensation over the years in the form of the vehicle purchased by the respondent for her along with payment of taxes on her car and being listed as the dependent on the respondent’s health plan. Further, the electricity and telephone bills were covered by the respondent.

 

In the circumstances, I find that it would be just and equitable to award to the applicant a 30% interest in both parcels of land. The only valuation report before the Court is that of the 2nd October 2009 which was prepared by Neville M. Libert Services at the Wife’s request. The said report was entered into evidence and marked “M.P. 17”. The value of the first property (consisting of several parcels of land) was placed at $2,905,537.00. The second property was valued at $43,230.00. As such the value of the applicant’s share in the parcels of land is calculated at $884,630.1 [2905537+ 43230=2948767 x 30%=884630.1]. I am thus of the view that the applicant is entitled to a lump sum payment of $884,630.10 representing her interest in the 2 properties described in the Appendix to this judgment.

 

 

ACCORDINGLY, THE ORDER OF THE COURT IS AS FOLLOWS –

 

  1. It is declared that a cohabitational relationship existed between the parties from 1991 to 25th November, 2010.

 

  1. It is further declared that the applicant is entitled to 30% share, title and interest in the two parcels of land described in the Appendix to this judgment as well as in the house constructed upon the first parcel.

 

  1. The respondent shall pay to the applicant a lump sum of $884,630.10 representing her 30% share, title and interest in the said properties as aforesaid within 6 months from the date of this order.

 

  1. The respondent shall bear 50% of the applicant’s costs of this Amended Application to be taxed in default of agreement.

 

Dated this 20th day of November, 2013

Robin N Mohammed

Judge

 

 

FH02249 MAUREEN PANCHAM v. HOWARD CAYENNE

APPENDIX

  1. ALL AND SINGULAR that parcel of land comprising FIVE ACRES AND THIRTY NINE PERCHES situate in the Ward of Couva in the Island of Trinidad (being portion of All those Fourteen (14) several contiguous parcels of land comprising in the aggregate One Hundred and Thirty Seven Acres Three Roods and Seventeen Perches known as “Penkin” and “Industry” Estates erroneously described in Deed dated the 14th day of June, 1956 registered as No. 10603 of 1956 as situate in the Ward of Montserrat) and abutting on the North formerly by lands of Daniel Grant now the heirs of N. Reece and partly by lot No. 8 formerly of Robert Alexander Nathaniel, Robert Frederick Nathaniel, Margaret Nathaniel and Charles Frederick Nathaniel now Razack Ali on the South upon Lot 6 formerly of the said Robert Alexander Nathaniel, Robert Frederick Nathaniel , Margaret Nathaniel and Charles Nathaniel now of Bukridan on the East partly by a Trace 20 feet wide partly by Lot 1 being on other lands of the said Robert Alexander Nathaniel, Margaret Nathaniel and Charles Frederick Nathaniel partly by Lot No. 3 formerly of the said Robert Alexander Nathaniel, Margaret Nathaniel and Charles Frederick Nathaniel now of Roslam Ali and partly by Lot No. 5 formerly of the said Robert Alexander Nathaniel Robert Fredrick Nathaniel and Charles Frederick Nathaniel now of Boodoobaccus on the West partly by Lot No. 8 aforesaid and partly by a Trace 16 feet wide and which said parcel of land is numbered “9” on the plan attached to Deed registered as No. 13249 of 1958.

 

  1. ALL AND SINGULAR that certain piece or parcel of land situate at Calcutta Road No. 2 Freeport in the Ward of Couva in the Island of Trinidad comprising SIX HUNDRED AND SIXTY NINE POINT FOUR SQUARE METRES (669.4 s.m.) (being portion of land described in the First Schedule to Deed No. 2105 of 1984) and bounded by the North by Lot No. 8b2 on the South by Lot No. 9 now or formerly Bhagwat on the East by Lot. No. 9 now or formerly Bhagwat and on the West by a Road Reserve measuring 4.88 metres wide and which said piece or parcel of land is delineated and shown coloured pink on the Plan annexed and marked “C” to Deed registered as No. DE 200301083976 and known as Lot No. 8b1.

 

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