Citation: TT 2012 CA 19
Title: NARINE v. CHUNE ET AL
Country: Trinidad and Tobago
Court: Court of Appeal
Suit No.: Family Appeal 11 of 2009
Judge(s): Jamadar, J.A.; Bereaux, J.A.; Smith, J.A.
Date: October 17, 2012
Subject: Family Law
Subsubject: Cohabitation relationship – Right of cohabitant to inherit property on intestacy.
Mr. M. Montrose for the appellant.
Mr. R. Doodnath for the respondents.
- JAMADAR, J.A.: This appeal involves the narrow issue of the rights of a cohabitant to inherit property on intestacy. However, it also raises the broader issue of the legal status and recognition of cohabitants in Trinidad and Tobago.
- The appellant had lived with the deceased for over five years, in a bona fide domestic relationship prior to his death in 2007. The deceased died intestate. Two of his children survived and they are the respondents. The appellant claimed a declaration that she was living in a cohabitational relationship with the deceased at the time of his death and that she was therefore entitled to a one-half share in his estate (pursuant to the Administration of Estates Act). The trial judge made the first declaration sought, but refused to make the second. It is against this refusal that the appellant appeals.
- In my opinion the trial judge was wrong in the circumstances of this case to refuse to make the second declaration sought. In my opinion, under sections 23, 24 and 25 of the Administration of Estates Act (as amended by Act No. 28 of 2000) the appellant is entitled to a one-half share in the estate of the deceased.
- The idea of giving legal recognition to and conferring rights upon cohabitants has had and continues to have a somewhat tortured history in Trinidad and Tobago. As in most, if not all, religiously influenced common law jurisdictions, the idea of giving recognition to parties who cohabited outside of marriage was considered anathema. In Trinidad and Tobago it has been no different.
- Sociologically, bona fide domestic relationships between a man and a woman living together as ‘husband and wife’ while not married, have formed part of the historical social reality of Trinidad and Tobago from the very beginning of the colonial experience. To facilitate the plantation economy that was built on the back of slavery and that operated in the West Indies, formalized unions amongst the African (slave) population were not encouraged [See, 1996 Green Paper on Cohabitational Relationships]. And, even after the abolition of slavery and emancipation, East Indian immigrants brought to Trinidad as plantation labour suffered a similar discrimination. Hindu and Muslim marriages were not recognized until long after those immigrants had first arrived here in 1845 [See, the Hindu and Muslim Marriage Ordinances, Chapter 29 Nos. 4 and 5, 1950 Laws of Trinidad and Tobago. Muslim marriages were only recognized in 1936 and Hindu marriages in 1946]. Indeed, Orisha marriages were not legally recognized until 1999 [See the Orisha Marriage Act, No. 22 of 1999]. Thus, in a context where the only valid marriages were Christian marriages, from the arrival of African slaves and Indian immigrants to these shores, men and women have lived together as ‘man and wife’ in bona fide cohabitational relationships. In the eyes of the law and consequently also in the eyes of society, the social and psychological experience of cohabitants has been one of displacement — belonging and not yet belonging, alienation — acceptance and yet not accepted, and marginalization — recognized and yet without any legal status or rights. In fact legal recognition and acceptance have come slowly for cohabitants and cohabitational relationships.
- Some examples of legislative interventions that have given recognition to cohabitants and cohabitational relationships are as follows:
(i) The Workmen’s Compensation Act. Section 5 authorizes payment of compensation to the dependants of a workman. A dependant female is defined as “a woman who for not less than twelve (12) months immediately before the date on which the workman died or was incapacitated … although not legally married to him, lived with him as his wife and was dependent wholly or in part upon his earnings” [See section 2(1) of the Workmen’s Compensation Act, Chap. 88:05. This section was introduced by the Status of Children Act, 1981 (Act No. 17 of 1981), in the schedule to section 20 (2). The Act was assented to on the 24th July, 1981.].
(ii) The National Insurance Act. For the purpose of extending benefits under this Act, a single woman or man who was living with a single man or woman as his wife or husband (respectively) at the date of his/her death was to be treated as if she/he was the widow or widower (respectively) of the deceased (provided the woman or man had been nominated as beneficiary of the deceased) [See section 2(2) (a) (i) of the National Insurance Act, Chap. 32:01. This section was introduced by the National Insurance Act, 1971, which was assented to on the 10th November, 1971.].
(iii) The Domestic Violence Act. For the purpose of the protections afforded under this Act, ‘spouse’ is defined as: “includes a former spouse, a cohabitant or former cohabitant”. And, a ‘cohabitant’ is also specifically defined as: “a person who has lived with or is living with a person of the opposite sex as a husband or wife although not legally married to that person” [See section 3 of the Act. This Act came into force in 1999.].
(iv) The Succession Act 1981. Passed and assented to in 1981, but not proclaimed until 2000, and then only partially (Part VIII, sections 94 to 116, as amended by Act No. 28 of 2000) by Legal Notice 27 of 2000 (with effect from the 6’11 November, 2000). This Act originally defined a ‘spouse’ as including a single man living together with a single woman as husband and wife for a period of not less than five years [See section 2(3) of the Act. This definition was subsequently changed by Act No 28 of 2000.].
(v) The Cohabitational Relationships Act, No. 30 of 1998. This Act became effective on the 23rd November, 1998. It gave for the first time broad recognition to the status of cohabitants and cohabitational relationships. It also conferred specific rights and obligations on cohabitants and gave the Courts jurisdiction with respect to finding and declaring interests in property and making orders for maintenance, and also for the creation and enforcement of cohabitation agreements. Significantly, ‘cohabitant’ is defined as meaning [See section 2 of the Act.]:
- In relation to a man, a woman who is living with or has lived with a man as his wife in a cohabitational relationship; and
- In relation to a woman, a man who is living with or has lived with a woman as her husband in a cohabitational relationship.
And, ‘cohabitational relationship’ is defined as meaning: ‘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’.
JUDICIAL RECOGNITION OF THE COHABITANT/COHABITATIONAL RELATIONSHIP
- In additional to legislation, judges have also recognized the status of cohabitants and cohabitational relationships, particularly in the areas of matrimonial and trust law. For example, Bernard, J., in Jack v. Jack H.C.A. No. 474 of 1974 stated (in the case of a married couple):
“I reject the submission of counsel for the respondent that the period of association prior to the marriage is of no importance to this case. In my view, to agree with counsel would be to behave like the proverbial ostrich! … If this could be the approach in England far more in Trinidad and Tobago where the concubinal association is an accepted institution of life of its society.”
- Also, in Francia Villarouel v. Joseph Clarke H.C.A. No. 1048 of 1973 Deyalsingh, J. commented as follows (in the case of an unmarried couple):
“All I can say is that this development of the law is long overdue especially more so in this country as not an insubstantial number of people participate in what is called “common law” marriages, setting up a “matrimonial home” and raising a family almost akin to a legitimate marriage.”
- Finally, Sharma, J. in Harrinarine v. Aziz H.C.A. No. 1992 of 1982 made the following observations (in the case of an unmarried couple):
“In my judgment, we must look at our own society, in order to determine whether a common intention can be so inferred. In our society, the common law marriage has been institutionalised and even Parliament has recognized its importance and existence. [H.C.A. No. 1992 of 1982, page 21]”
“I am prepared to hold that in our jurisdiction, the living together in a common law relationship over an extended period … constitute prima facie evidence of a common intention that she should have a beneficial interest in the property which is solely in the name of the common law husband. This in my judgment will be a common intention inferred by reason of the unique position of the common law marriage in our society. [H.C.A. No. 1992 of 1982, page 23]”
“It is now time for growth and creativity, and there could be no better starting point than to recognize the role of the common law wife in our society, by acknowledging that she too, like the married woman also has rights. [H.C.A. No. 1992 of 1982, page 23]”
- It is against this general background that the legislative intent questioned in this appeal must be viewed. In February and March 2000 the Attorney General piloted a Bill in the Senate entitled the Distribution of Estates (No. 2) Bill. It was amended and passed in the Senate with the support of the Independent Senators. The amended Bill was then read and passed in the House of Representatives with the support of the Opposition (on the 4th May, 2000). Act No. 28 of 2000 is the result: ‘An Act to amend the law relating to the distribution of the estates of deceased persons’. Clearly this legislation received bi-partisan support in both Houses.
- This Distribution of Estates Act, 2000 amended Part VIII of the 1981 Succession Act and certain sections of the Administration of Estates Ordinance, now the Administration of Estates Act (AE Act). It is the amendments to the AE Act which are of concern in this appeal.
- One singular purpose of the Distribution of Estates Act was to extend the provisions of the 1981 Succession Act and to amend the AE Act, so as to include a broader category of cohabitants and cohabitational relationships. This was achieved by bringing the relevant provisions of these two Acts in line with the definitions of these categories as provided for in the pre-existing 1998 Cohabitational Relationships Act [The Distribution of Estates Act also provided for rules of distribution in the event of an intestacy].
- Thus, whereas in the 1981 Succession Act a cohabitant was limited to ‘single’ men and women living together, in the Distribution of Estates Act cohabitant was defined as follows:
(I) For the purposes of the Succession Act [See section 2 of Act No. 28 of 2000]:
‘Cohabitant’ or ‘cohabiting partner’ means –
(a) In relation to a man, a woman who has been living with or who has lived together with a man in a bona fide domestic relationship for a period of not less than five years immediately preceding the date of his death.
(b) In relation to a woman, a man who has been living with or has lived together with a woman in a bona fide domestic relationship for a period of not less than five years immediately preceding the date of her death.
(II) For the purposes of the Administration of Estates Ordinance [See section 3 of Act No. 28 of 2000]:
‘cohabitant’ means a person of the opposite sex who, while not married to the intestate, continuously cohabited in a bona fide domestic relationship with the intestate for a period of not less than five years immediately preceding the death of the intestate.
- The key change was the removal of the requirement for either of the cohabitants to be single, thus broadening the category to include married persons. This was the clear and unequivocal legislative intention, to be discerned from the text itself and from the relevant changes made to the 1981 Succession Act. This was therefore an overt public policy change introduced and made by the legislature.
- It is against this particular legislative history that the new sections introduced by the Distribution of Estates Act, dealing with distribution of an estate on intestacy, fall to be interpreted. For the purpose of this appeal, the relevant provisions are sections 23, 24 and 25 of the AE Act (as amended). These are as follows:
- An estate or interest to which a deceased person was entitled on his death in respect of which he dies intestate shall, after all payment of debts, duties and expenses be distributed or held on trust amongst the same persons being kin or next of kin in accordance with sections 24, 25, 26 and 26A.
- (1) Where an intestate dies leaving a surviving spouse but no issue, his estate shall be distributed to or held on trust for the surviving spouse absolutely.
(2) Where an intestate dies leaving issue, but no spouse, his estate shall be distributed per stirpes among the issue.
(3) Where an intestate dies leaving a spouse and one child, the surviving spouse shall take one-half of the estate absolutely and the other half shall be distributed to or held on trust for the child.
(4) Where the intestate dies leaving a spouse and more than one child, the surviving spouse shall take one-half the estate absolutely and the remaining one-half shall be distributed to or held on trust for the children.
25 (1) Notwithstanding section 24, where an intestate dies leaving no surviving spouse, but dies leaving a surviving cohabitant, the cohabitant shall be treated for the purposes of this Ordinance as if he or she were a surviving spouse of the intestate.
(2) Notwithstanding section 24, where an intestate dies leaving a spouse and a cohabitant and the intestate and his spouse were at the time of his death living separate and apart from one another, only such part of the estate as was acquired during the period of cohabitation shall be distributed to the cohabitant, subject to the rights of a surviving spouse and any issue of the intestate.
(3) A surviving cohabitant claiming a share of the estate of an intestate under this section shall, within twenty-eight days of the death of the intestate, file with the Registrar of the Supreme Court a notification of interest as the surviving cohabitant and, within three months thereafter or such other time as the Court considers appropriate having regard to all the circumstances, obtain an Order from the Court affirming the cohabitational relationship with the intestate and stating the quantum of the share of the estate to which the cohabitant is entitled.
(4) The Rules Committee shall make rules for matters arising under this section.
- From these provisions there can be no doubt that the intention of Parliament was to provide for cohabitants on intestacy as prescribed in section 25. There can also be no uncertainty that section 25(1) equates a cohabitant with a surviving spouse of an intestate where a deceased cohabitant dies leaving no surviving spouse. This is to be contrasted against the situation where an intestate leaves a spouse and a cohabitant. In this latter case a cohabitant can only seek a claim to such part of the estate that was acquired during the period of cohabitation subject to the rights of a surviving spouse and any will of the intestate.
- The unchallenged facts and findings in this matter are as follows:
(i) The deceased died intestate.
(ii) The appellant and the deceased shared a cohabitational relationship as defined by section 2 of the AE Act. In fact the judge found that the cohabitational relationship lasted for seven (7) years from December 1999 to the death of the intestate in June 2007 [See paragraph 11 of the trial judge’s judgment].
(iii) The deceased, though previously married, was divorced from his wife at the time of his death (the deceased and his wife had separated in 1993 and the decree nisi was made absolute on the 25th January, 2000). The appellant had also been married and was also divorced from her husband. In light of this, at the time of his death the deceased had no surviving spouse [See paragraph 16 of the trial judge’s judgment. And see, Executors, Administrators and Probate, Williams, Mortimer and Sunnucks, 19th ed., at paragraph 19-02, “Divorce: A person who has been divorced has no statutory beneficial interest in the former spouse’s estate”.].
(iv) The deceased died leaving issue, being two children, a son and daughter.
- In these circumstances, where the deceased died intestate leaving no surviving spouse, but leaving a surviving cohabitant (the appellant), the cohabitant is to be treated as if she was a spouse [See section 25(1) of the Administration of Estates Act (as amended).]. Section 24 (4) of the AE Act therefore applies. The appellant is therefore entitled to a one-half share in the estate of the deceased and his two children are entitled to the remaining one-half share in his estate.
- The trial judge came to this very conclusion, but in the face of it stated: “… but that result does not sit well with me” [See paragraph 25 of the trial judge’s judgment.]. The trial judge then proceeded to undertake an inquiry into the contributions of the appellant (cohabitant) and the issue of the deceased toward the estate of the deceased as would have been permissible under section 25(2) of the AE Act. The trial judge fell into error in proceeding upon this inquiry [See paragraphs 19, 21, 22, 25 and 28 of the trial judge’s judgment.] in light of the clear and manifest intention of Parliament revealed in the plain language of this statute.
- Section 25(2) of the AE Act can only be invoked where there is an intestacy, a surviving spouse and a cohabitant (and the intestate and his spouse were living separate and apart at the time of death). These pre-conditions simply do not exist in this case.
- In so far as the trial judge had resort to section 25(2) of the AE Act [See paragraphs 30, 31 and 33 of the trial judge’s judgment.], to justify the orders that she made for an inquiry into the contributions made by the appellant to the deceased’s estate, so as to permit her to determine the part of the estate acquired during the period of cohabitation to be shared and distributed among the appellant and the issue of the deceased on that basis, she clearly had no legal warrant to do so.
- Furthermore, section 25(3) of the AE Act applies to both subsections 25(1) and (2). In the case of section 25(1), the Court is bound to state the quantum of the share of the estate to which the cohabitant is entitled in accordance with section 24(4), namely one-half of the estate. It is only in cases under section 25(2) where there is both a surviving spouse and a cohabitant that an inquiry into the estate acquired during cohabitation can be undertaken by the Court. This is simply not such a case.
- In any event, if the trial judge had considered that the relevant sections were somehow ambiguous, unclear or absurd, she could have considered invoking the rule in Pepper v. Hart  3 W.L.R. 1032. Specifically, she would have looked at the speeches of the proposer of the Bill. This would have revealed that in relation to section 25(1) of the AE Act, exactly what is provided for was intended and agreed to in both the Senate and the House of Representatives, and that the inquiry under section 25(2) of the AE Act is only to be undertaken in the case of an intestacy where there is both a surviving spouse and a cohabitant.
- In these circumstances, we allowed the appeal in this matter on the 6th July, 2012 and set aside the orders and directions of the trial judge made on the 5th June, 2009 (except the declaration as to cohabitational status). Thus we upheld the declaration affirming the existence of a cohabitational relationship between the appellant and the intestate for a period of five years prior to his death. We also made a declaration that the appellant cohabitant was entitled to a one-half share in the estate of the intestate (pursuant to sections 24(4) and 25(1) of the AE Act). After hearing counsel, each party agreed to bear their own costs of the appeal and below, and we entered an order for costs in those terms.
- In conclusion, it is to be noted that the intention of Parliament in prescribing rules of intestacy does not undermine the primacy of a person’s entitlement to dispose of his/her estate by will. Indeed, once this is done, all things being equal, the law generally upholds the testator’s or testatrix’s wishes, and can only intervene in limited ways [See for example sections 95 to 114 of the Succession Act, as amended by the Distribution of Estates Act, 2000 (Act No. 28 of 2000).]. However, where a person dies leaving no will, Parliament has intervened by prescribing rules of intestacy. These rules of distribution can only always be general and broad in nature. Therefore they will at times be unable to accommodate all the hopes and expectations of the family and dependants of a deceased person. These hopes and expectations ought to be addressed in properly considered and made wills. This is the responsibility of a testator and testatrix; to make proper testamentary dispositions of their property and estate. The rules of intestacy, duly agreed on and ratified by Parliament, cannot be adjudged unfair or unjust simply because they do not cater for the idiosyncrasies of every family context. It is to be noted that section 95 of the Succession Act (as amended by Act No. 28 of 2000) makes ample provision for those who wish, either in relation to testacy or intestacy, to apply to the Courts for reasonable financial provision to be made for them out of a deceased’s estate.
Justice of Appeal
I have read the judgment of Jamadar, J.A. and I agree with the analysis of the case as contained in paragraphs 10 to 25 of the judgment. I agree that the appeal should be allowed and that the declarations which the appellant sought should be granted (see paragraphs 2 and 3 of the judgment of Jamadar, J.A.)
Justice of Appeal