19 July

Alfred v Osborne

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in Family Law - Cohabitation

Citation: TT 2014 HC 30

Title: ALFRED v. OSBORNE

Country: Trinidad and Tobago

Court: High Court

Suit No.: FH 175 of 2011

Judge(s): Mohammed, J.

Date: January 15, 2014

Subject: Family Law

Subsubject: Co-habitation – Maintenance and property adjustment – Whether a co-habitational relationship existed between the parties as defined by section 2 of the Co-habitational Relationships Act, Chap. 45:55 – Contributions to the home – Whether the applicant was entitled to a share and interest in the property – Maintenance – Whether the applicant should be entitled to maintenance.

Appearances:

Mr. Darril J. Giles for the applicant

Mr. Romel Osborne (respondent) representing himself

MOHAMMED, J.: The applicant in this matter seeks an order for property adjustment with respect to property situate at No.33 Ibis Avenue, Carli Bay Road, Couva; a lump sum payment; and maintenance for herself. Her application is made pursuant to the Co-habitational Relationships Act, 1998.

On the 26th January, 2011, the applicant filed the aforementioned Application. She also filed an affidavit in support together with her Application for Financial Relief in Form 8 questionnaire of even date. On the 18th May, 2011 the respondent filed his affidavit in response. This was followed by the filing of the applicant’s affidavit in reply on the 16th June, 2011. Thereafter, on the 20th July, 2011 the respondent filed his Evidence of Financial Position in Form 9 questionnaire.

On appearing before this Court on the 11th July, 2011, the respondent was represented by Counsel, Ms. Himauty Mary Ramcharitar. On that date, it was ordered that a valuation be carried out on the property situate at No. 33 Ibis Avenue, Carli Bay Road, Couva (“the Couva property”) the costs of which were to be borne equally between the parties. The parties appeared before the Court thereafter on the 7th November, 2011. On this occasion, the respondent was again represented by Ms. Ramcharitar. It was ordered that the valuation report be amended to include the front building of the premises, there being two structures upon same. It was also ordered that any additional costs for the valuation were to be shared equally between the parties.

On the 20th March, 2012, the parties again appeared before the Court. On that occasion, Counsel for the respondent requested permission to cease acting as attorney-at-law for the respondent. She indicated that the respondent had informed her that he no longer wished her to represent him and further, she indicated that he was unwilling to heed instructions with respect to payment for the valuation report. Counsel indicated that she had even instructed him to utilize fees owing to her to comply with the Court’s order concerning payment for the valuation report. The respondent claimed not to have the funds to pay for same. He expressed that he intended to seek Legal Aid. Permission was granted for Counsel to cease acting as the respondent’s attorney-at-law and it was ordered that the respondent ensure that his share of payments for the valuation report be made and that he retain fresh legal representative as soon as possible to allow for the trial to take place on the adjourned date, that date being the 25th July, 2012.

On the 25th July, 2012, both parties appeared. The respondent was, however, unrepresented. The Court informed him that he was being given one last opportunity to be legally represented at the trial as the Court was of the opinion that more than adequate time had been offered to him to retain legal representation. Further, the respondent was advised that the Court will proceed with the trial on the next date of hearing whether or not he was legally represented.

The matter then came before this Court on the 28th September, 2012. However, the applicant was unable to attend due to injury and a medical certificate was tendered. On that occasion the respondent again appeared unrepresented. He informed the Court that he was unable to afford an attorney-at-law and that his application for Legal Aid was refused. In light of this refusal, which clearly meant that the Authority found him to be of such means as not to qualify for legal aid, this Court again advised him to seek and retain legal representation.

The trial was then fixed for the 12th March, 2013. On that date, the respondent again appeared unrepresented. This Court held the view that the respondent was advised repeatedly and was given more than sufficient time to obtain legal representation yet he failed to do so. Rule 1.1 of the Family Proceedings Rules, 1998 (“the FPR”) sets out the overriding objective of the Rules which is to deal with cases justly. Dealing with cases justly includes saving expenses and dealing with cases in ways which are proportionate to the financial position of each party, ensuring that the matter is dealt with expeditiously and allotting to it an appropriate share of the court’s resources while taking into account the need to allot resources to other cases. (See Rules 1.1(2)(c), (d), (e) and (f) of the FPR.) In the circumstances, it was determined that the trial would proceed with the respondent representing himself

THE APPLICANT’S CASE

According to the applicant, she commenced a common law relationship with the respondent in March 2001, living together as husband and wife at the Couva property. They resided there with her adopted son Anil Mahadeo and the respondent’s two children, his son Daryl and daughter Renee.

On the 2nd December 2002, the respondent was seriously injured at his workplace. As a result of that injury he was forced to retire from his job and was subsequently compensated with a payment of approximately $800,000. The applicant says that before the respondent actually received such money, she was forced to do odd jobs to assist in maintaining her family, which included the respondent. These jobs included working in the Unemployment Relief Programme (URP) in 2004, at Humming Bird Rice Mill in 2005 and at the Rumble Tumble in 2006. The respondent finally received his compensation in 2006. He thereafter stopped her from working. At this time, she says, they shared a very good relationship.

The respondent then commenced construction of a two-storey dwelling house in front of their wooden house. According to her she assisted with the manual labour involved. In or around 2007, the respondent’s son died with Tuberculosis while he was in prison. He was charged for murder. At this time she provided moral support to the respondent who was going through an emotional period.

In 2007, the parties were given legal title to the Couva property by virtue of a Grant of State Lands. The house was finally completed in 2009. It contained 8 apartments, 7 of which were rented out by the respondent for a total of approximately $10,000. She, her adopted son and the respondent occupied one of the apartments on the upper floor, his daughter having migrated to the United States to reside with her mother.

According to the applicant, the parties’ relationship began to deteriorate when the respondent started to accuse her of infidelity. She is of the view that this was a ploy on his part to get rid of her when he was in fact involved with another woman. She said that he began to treat her badly by constantly cursing and abusing her. She was forced to seek refuge by her mother who lived nearby. About two weeks later, the respondent came and asked her to return home and she obliged. She says that he took away her cell phone and forbade her from leaving the home.

On the 29th October, 2010, she held a birthday party for the respondent which was attended by some of his family and friends. After the party, the respondent went out and returned home around 3:00 am the next day intoxicated. At the time she was asleep. The respondent began to abuse her physically and accused her of flirting with his friends. When she tried to escape he threatened to kill her. He then went to sleep. She remained in the house until that evening when her mother arrived and took her to the Couva police station where she made a report. She then sought medical attention and obtained a protection order against the respondent.

THE RESPONDENT’S CASE

According to the respondent, the applicant was employed by him as his maid to cook and clean his house. He paid her $300 per week. He said that in March 2007, she informed him that she was experiencing marital problems and asked him to allow her to stay at his home for a short while as she had nowhere to go. She then moved into his house that month.

The respondent contends that their relationship only started around September, 2007 and it was then that he ceased paying her. He said that as a result of the emotional support provided by the applicant to him when his son died, their relationship commenced and they began living together as man and wife.

The respondent says that he received compensation in the sum of $550,000 for his workplace injury which occurred in December 2002 but he denies that the applicant was ever forced to work or that he stopped her from working.

With respect to the house, he says that he commenced construction of the foundation of same around 2000 but stopped when he was injured. He says that he constructed the house on his own without the help of the applicant. He utilized his compensation money to fund the construction, pay legal fees and meet household expenditure. While he admits that the property is held in both their names, he says that he only put her name on same to facilitate her getting her visa to travel to the United States. She promised to transfer the property back to him after securing same. According to the respondent, the house is still incomplete. He says that only one of the apartments is rented. Four more are unoccupied and require repairs in order to be habitable.

The respondent accuses the applicant of being unfaithful and denies that his ploy was to get rid of her. He admits the occurrence of the incident of the 29th October, 2010 but denies hitting the applicant first.

The respondent says that after his accident, he received on average $800 per fortnight from his employer. Since his accident, he says he has driven a private taxi at nights, as doing so during the day hurt his eyes. He says that he uses this money to support his children and himself.

The respondent is of the view that the applicant is not entitled to any share of the Couva property as they did not share a common law relationship for more than five years and she made no financial contributions to the said home.

ISSUES

From the evidence, the main issues which fall to be determined are as follows:

(i) Whether a co-habitational relationship existed between the applicant and the respondent for the requisite period under the Act?

(ii) If so, what were the respective contributions of the parties during the co-habitational relationship?

(iii) Whether the applicant is entitled to a share in the Couva property, and if so, what portion?

(iv) Whether the applicant is entitled to a lump sum payment, and if so, what ought to be the quantum of same?

(v) Whether the applicant ought to be awarded maintenance?

APPLICABLE LAW AND LEGAL PRINCIPLES

This matter is governed by the Co-habitational Relationships Act, Chap. 45:55 (“the Act”). According to its pre-amble, the Act is “an Act to confer on co-habitants rights and obligations, to give the Courts jurisdiction to make orders with respect to interests in property and maintenance, to make provision for the enforcement of agreements and for matters incidental thereto.”

Section 2 of the Act defines a “cohabitant” as “…IN RELATION TO A MAN, A WOMAN WHO IS LIVING WITH A MAN 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.”

In turn, the definition of a “cohabitation relationship” under the Act is as follows:

“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.”

Notably, the Act is silent as to the meaning of the term “bona fide domestic basis”.

In the oft-cited case of Delzine v. Stowe HCA 3007 of 2001, Mendonca, J., (as he then was) embarked upon a consideration of the phrase “living together on a bona fide domestic basis” . Therein, Mendonca, J., observed that the New South Wales Property (Relationships) Act, 1984 (“the NSWPA”) bears some similarity to the Trinidad and Tobago Co-habitational Relationships Act. He referred to section 4(2) of the NSWPA which states that in determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account including such of the following matters as may be of relevance in a particular case:

the duration of the relationship;

the nature and extent of the relationship;

whether or not a sexual relationship exists;

the degree of financial dependence or interdependence and any arrangements for financial support between the parties;

the ownership, use and acquisition of property;

f he degree of mutual commitment to shared life;

the care and support of children;

the performance of household duties; and

the reputation and public aspects of the relationship.

Section 4(3) of the NSWPA 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.

Acknowledging that no similar provision to that outlined above is to be found in Trinidad and Tobago, Mendonca, J., opined that the Court in the latter may regard the approach taken in Australia as being of practical utility in determining whether a co-habitational relationship exists, while still bringing its own practical knowledge and experience to bear upon the circumstances of the particular case.

Delzine v. Stowe was approved and applied by the Court of Appeal in Mohammed v. Albert C.A. No. 165 of 2004. There, Warner, J.A., opined that living “on a 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.”

Bearing in mind the dicta of Warner, J.A., and the factors set out in Delzine v. Stowe by Mendonca J., I move now to a consideration of those factors relevant to this case.

THE DEGREE OF FINANCIAL DEPENDENCE OR INTERDEPENDENCE AND ANY ARRANGEMENTS FOR FINANCIAL SUPPORT BETWEEN THE PARTIES

The applicant claims that when the respondent was injured in December 2002 she was forced to do odd jobs to assist in maintaining the family. She said that this included working at the URP in 2004, the Humming Bird Rice Mill in 2005 and at Rumble Tumble in 2006. She claims that when he finally received his compensation in 2006, he stopped her from working. The respondent on the other hand claims that the applicant worked as his maid up until September, 2007 and was not his cohabitant until then. This position is denied by the applicant. As I shall expand upon in further detail as this judgment progresses, I do not believe the respondent’s claim in that regard. From the evidence, it is clear that the respondent was the main financial provider in the relationship. In his oral testimony, he professed how much he had done for the parties. He referred to opening a Hindu Credit Union account for the applicant and having had a joint account with her. She in turn admitted to putting that money to various uses, including household expenditure such as groceries. More specifically, he admitted during cross-examination to opening a Hindu Credit Union account for the applicant in 2003. The Husband claims that he used his ample compensation package not only for continued construction of the Couva property but also to pay bills and meet house and living expenses. I accept his evidence in that regard.

From the evidence, it appears that not only was the respondent chiefly financially responsible for the applicant but he also contributed towards caring for the applicant’s adopted son, Anil. When the applicant moved into the wooden house on the Couva property to live with the respondent, she did so with Anil. It is not disputed by the parties that Anil called the respondent “Daddy” and during his oral testimony, the respondent related how he contributed financially towards Anil’s wellbeing. On the evidence, I find that the respondent was financially generous, opening an account for and sharing an account with the applicant.

It also appeared from his oral testimony that he allowed her to have control of the rent money and she governed how it was applied. I am of the view that the respondent is telling the truth insofar as he claims to have contributed financially towards Anil’s wellbeing, this child who so viewed him as to refer to him as “Daddy”. Referring to Anil, the respondent himself stated at trial that “I wholly and solely take this child and make it my own”. During her oral testimony, the applicant claimed to have been in receipt of $300 per week from Anil’s father. This was a novel claim made at trial, it not having been mentioned in her affidavits. On the evidence, I am of the view that even if she was in receipt of such sums, it does not in any way take away from the fact that the respondent financially provided for both herself and her son during the course of their relationship. In fact when she was asked by the respondent “which one I was minding” in relation to caring for the child, the applicant replied “Jerome Anil Mahadeo”.

Further, the respondent also listed the applicant as a beneficiary of his life insurance policy. When this claim was initially raised by the applicant in her affidavit evidence, I note that the respondent made no mention of having a life insurance policy in his Form 9 evidence. However, by letter dated the 12th March, 2012, Mega Insurance Company Limited indicated that the respondent has a life insurance policy issued by them. Documents produced by Mega Insurance Company Limited indicate that he purchased the policy in 1996. In 2002, he changed the beneficiaries to “Allison Alfred – Wife” and “Darryl L. Romel – Son”. The endorsement, dated the 1st July 2002, stipulates that “at the request of the owner and by agreement of the company, it is hereby declared that the beneficiary change requested is hereby noted on this policy”. Thus, it is clear that in 2002, the respondent opted to include the applicant on his life insurance policy and, more particularly, I note that her designation on same is “wife”. The logical conclusion to be drawn is that he viewed her as such. This action (the inclusion of the applicant on his life insurance policy and the reference to her as his wife) runs counter to his claims that she was nothing more than a maid then. When cross-questioned on this, he claimed that he was merely trying to help her. I am hard-pressed to believe this, particularly when this act is taken in context of the holistic picture of their relationship.

WHETHER OR NOT A SEXUAL RELATIONSHIP EXISTED

The respondent claimed that the applicant experienced problems with her husband in March 2007 and requested that she be allowed to stay by him as she had nowhere to go. According to him, he obliged but they only entered into a relationship in September 2007. On the other hand, the applicant asserts that she used to live with her husband at the rear of the respondent’s wooden structure. She contends that the parties shared a sexual relationship while she was still with her husband. According to her, the respondent thereafter said that he needed her and encouraged her to leave her husband with her one year old adopted son, Anil Mahadeo. Relying on his undying love for her, she went to live with him and his two children. She maintains that she was not his maid and never received any monetary payment from him as she was his common law wife.

I prefer the evidence of the applicant over the respondent regarding the circumstances of her commencing living with the respondent. While otherwise the parties did not specifically address their sexual relationship, I note that insofar as they agreed that a co-habitational relationship was shared (although they dispute the period), neither claimed that the relationship was devoid of sexual relations at all or at any particular point. Given that I have accepted the applicant’s evidence that she had an intimate relationship with the respondent while still with her husband, the logical conclusion to be drawn is that such intimacy would have continued when she and the respondent commenced living together.

OWNERSHIP, USE AND ACQUISITION OF PROPERTY

At trial, it emerged that the parties shared a joint bank account. It is also not in dispute that the names of both parties were put on the Grant of State Lands to the Couva property. This Grant (of Title) is dated the 24th May, 2007 and was thus executed prior to September, 2007- the time when the respondent claims they entered into a relationship whereby they were living together as husband and wife.

The respondent sought to explain the reason why the applicant’s name was put on the Grant. According to him, the applicant wanted to go abroad and had no security in order to get a visa for the United States of America. He said that she asked him to assist her at that time. He told her that he was entitled to a Deed from the Government concerning the relocation and further, that he had already paid for the Deed. The respondent alleged that she pleaded with him to put her name on same and said that after securing the visa, she would transfer the property back to him. He claims that he knew and trusted her. Wanting to assist her, the Deed was made in both of their names. He maintains that the applicant never contributed to any of the transfer payments and says that he made all the payments to Caroni. However, the respondent says that the applicant never went to the Embassy or made the application for the visa. He says that she told him to let some time pass before applying or else they may think it was a transfer of “conveyance” (sic). (I think the respondent meant to say “a transfer of convenience”.) He claims that in 2010 he asked the applicant to transfer the property back to him but she refused to do so.

The applicant denies the respondent’s claims. According to her, she never wanted to visit, or has any interest in visiting, the United States of America or anywhere else for that matter as she has to take care of her son. Moreover, she says that she is not, and was never, the holder of a Trinidad and Tobago passport. At trial, evidence was given by Ms. Joann Nelson Joel, an Immigration Officer attached to the Ministry of National Security. She indicated that she was able to locate documents relating to one Allison Hazel Alfred, born on the 18th September, 1973. Having perused the documents, however, it was clear to this Court that this individual was not the same person as the applicant, Allison Alfred who was born on the 24th February, 1973. Ms. Joel indicated that they were unable to locate anyone else by that name in their system. She cautioned, however, that she could not state definitively that a Trinidad and Tobago passport was never issued to the applicant as some of their records have been lost with the passage of time.

On a balance of probabilities, I prefer the evidence of the applicant over the respondent regarding the backdrop against which both parties’ names were included on the Grant of State Lands. She claims that she does not have a Trinidad and Tobago passport and as it stands, there is no concrete evidence of its existence. The respondent had opened a joint account with the respondent, and placed her on his life insurance policy as his “wife”. In much the same vein, it is not a stretch to find that he would have also placed her as a joint owner of the property on the basis that he regarded her as his wife and not, as he claims, to simply allow for her to obtain a visa. I note that in July, 2011, he removed her as a beneficiary from his policy. This was after the incident on the 29th October, 2010 when a physical altercation occurred between the parties following which the applicant made a report at the police station and sought a protection order. The applicant did not mention resuming living with the respondent after that and it is taken that they began to live apart then. I also note the time when the respondent alleges that he requested the applicant to transfer the property back to him- 2010. I note that he never made that request in 2008 or 2009 but only in 2010, the year when it appears that their relationship broke down and the applicant began to live apart from him.

In the circumstances, I do not believe the respondent insofar as he suggests that he placed the property in both their names merely to assist her to get a visa and further, that she had agreed to transfer the property back to him at the time when the decision was made to share joint ownership of same. Rather, I find that regarding her as his wife, in much the same way he organized other assets to ensure that she benefitted, (the bank account and the life insurance policy, for example) he placed the property jointly in their names and it was only when their relationship soured that he adopted this position regarding the reason behind the joint ownership.

With respect to the construction of the home, the applicant claims that she assisted with same by providing labour, which included laying the foundation, casting posts, bending steel, carrying water, cement and so forth. This was denied by the respondent. He claims that he began to lay the foundation around 2000 but stopped when he was injured. He contends that he constructed the house on his own without help from the applicant, using a portion of his compensation money to purchase material and pay legal fees. In support of his claim, the respondent exhibited a plethora of copies of bills and receipts of materials purchased. I find that while the applicant would have helped where she could with the manual labour, the far greater contribution towards the construction of the home would have come from the respondent, who not only performed manual tasks but was solely responsible for the financial aspect of the project.

THE DEGREE OF MUTUAL COMMITMENT TO A SHARED LIFE

On the evidence, I find that the parties organized their affairs together as husband and wife during the period of time that they lived together. They shared a joint account, the respondent provided for the applicant and her son and he placed her on his life insurance policy and placed the property on which they resided in their joint names. In fact during cross-examination, when explaining why he took these actions, the respondent stated “THAT’S WHY I SAY I PUTTING SHE NAME ON THE DEED, THE LIFE INSURANCE SO SHE WOULD GET A CLEARANCE THAT SHE COULD …. YOU KNOW, START TO BETTER WE LIFE”. [Emphasis mine]. He referred to “we life”, not his or hers, but arguably, to their life together. Despite his denial of a co-habitational relationship prior to 2007, from his actions which took place prior to then, it is clear that the respondent viewed himself and the applicant sharing a life together as husband and wife unit.

THE CARE AND SUPPORT OF CHILDREN

Having traversed this point to a great extent earlier, I shall not now repeat in much detail what was said. Suffice it to say, it is not in dispute that the respondent contributed financially towards the applicant’s adopted son’s well-being. I also accept that though not his biological father, the respondent treated Anil as his own and admitted that Anil referred to him as “daddy”.

The PERFORMANCE OF HOUSEHOLD DUTIES

The applicant did not provide much information in her affidavit evidence as to the household duties which she performed during the course of their relationship. I note, however, that the respondent claims that the applicant was employed as his maid and performed household tasks for him. He said that he only stopped paying her in late 2007 when they commenced a co-habitational relationship. The applicant denies that she was employed as his maid. I prefer her evidence over his and find that any tasks that she would have done were contributions done as a wife rather than a maid. During cross-examination, the respondent admitted that when they lived together as husband and wife, the applicant performed household chores by cooking and cleaning and looking after Anil

The applicant contends that she supported the respondent when he was warded at the San Fernando hospital. She says that he spent about two weeks there during which time she visited him twice per day, carrying food for him and washing his clothes. Further, she says that when he was discharged, she nursed him at home when his condition worsened and he was again warded at the hospital for another two weeks. He was eventually discharged around December 31st 2002. During cross-examination, the respondent admitted that he could not do anything due to his eye injury. I accept the applicant’s evidence insofar as she claims to have assisted him both while in hospital and when discharged.

THE REPUTATION AND PUBLIC ASPECTS OF THE RELATIONSHIP

As was said before, the respondent listed the applicant as his wife when he added her as a beneficiary to his life insurance policy in 2002. Clearly, there was no attempt to hide or conceal how he viewed her. The applicant also spoke of having a party for him which some of his family and friends attended in 2010. He did not deny this. Again, it does not appear that there was anything clandestine about their relationship, or more particularly, the nature of same.

THE NATURE AND EXTENT OF THE RELATIONSHIP

From the evidence, I am of the view that the parties lived together as husband and wife from well before 2007 as the respondent would have this Court believe. They shared and benefitted jointly from assets and he cared for her son as his own. I note the date when the respondent says he opened an account for the applicant which was in 2003 and note that he placed her as a beneficiary of his life insurance policy, listing her as his wife, in or around July 2002. The respondent claims that he only wished to assist her, but I find that when viewed holistically, the picture painted goes beyond mere benevolence, to a couple who shared a co-habitational relationship as husband and wife from at least mid-2002. They experienced domestic problems and the relationship eventually broke down for good in October, 2010 when the incidence of violence occurred and the Wife thereafter made a report to the police station followed by an application for a protection order.

DECISION

PROPERTY ADJUSTMENT AND LUMP SUM

Section 4 of Co-habitational Relationships Act empowers the Court to make any order or grant any relief under the Act, including –

(a) In relation to property, an order declaring a title or right, or adjusting an interest; or

(b) An order for-

(i) The periodical payment to a cohabitant of such sums of money and such term as may be specified; or

(ii) The payment to a cohabitant of such lump sum as may be specified.

Part III of the Act deals with proceedings for property adjustment and maintenance. Section 6 of the Act entitles a cohabitant to make an application for property adjustments and maintenance. Section 7 specifies that the Court shall not make an order under section 6 unless it is satisfied that:

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

(b) The applicant has a child arising out of the co-habitational relationship; or

In turn, section 10(1) states that –

“On an application for an adjustment order, the High Court may make any such order as is just and equitable, having regard to –

(a) the financial contributions made directly or indirectly by or on behalf of the cohabitants to the acquisition or improvement of the property and the financial resources of the partners; and

(b) any other contributions, including any contribution made in the capacity of homemaker or parent, made by either of the cohabitants to the welfare of the family constituted by them;

In addition to being satisfied of at least one of the aforementioned prerequisites set out in section 7 of the Act that section requires the Court to also be satisfied that failure to make the order would result in grave injustice to the applicant.

On the evidence, I am of the view that the applicant has established that the parties shared a co-habitational relationship since at least July 2002, and not since 2007 as the respondent contends. Accordingly, she has overcome the first threshold by satisfying this Court of section 7(a) of the Act. However, that is not the end of the matter. The Court must also be satisfied that failure to make the property adjustment order or maintenance order would result in grave injustice to her. According to the evidence, prior to moving in with the respondent, the applicant resided with her husband to the rear of the respondent’s property. She then moved into the wooden house with him and later, into the more recent construction. In her affidavit evidence, she said that she is now employed as a sales clerk and that she has nowhere to live with her son as the respondent has since cohabited with another woman in their home. This was denied by the respondent. At trial the applicant indicated that she is now employed as a bartender.

During the course of the co-habitational relationship which lasted approximately 8 years, the respondent cared and provided for the applicant as his wife. He provided her with financial assistance, caring not only for her but also her son. He opened bank accounts for her and provided her with a roof over her head, having financed the construction of the home on the property which he put in their joint names. Having been her provider for almost a decade, he now claims that she is not entitled to any share of that property. I am of the view that a failure to make a property adjustment order would result in a grave injustice to the applicant, who invested almost a decade of her life in this co-habitational relationship. While the respondent was the main financial provider for the family, the applicant contributed towards the welfare of same in her capacity as homemaker, doing household chores, looking after the home and caring for her son Anil and the respondent, particularly when he fell ill. However, there is no evidence that the applicant made any financial contribution either directly or indirectly to the acquisition or improvement of the property and the financial resources of the parties though there is clear evidence of other contributions in the capacity of homemaker and parent made by the applicant to the welfare of the family constituted by them. In this regard though the Couva property is jointly owned by the parties (the respondent having included the applicant’s name in the Grant of State Lands) it is this Court’s opinion that the applicant is not entitled to a half share in the entirety of the Couva property. To award her such half share therein would be unjust to the respondent who certainly was the dominant financial contributor to the acquisition and improvements of the Couva property and the welfare of the family. Accordingly, having considered all of the evidence, I find that the applicant is entitled to a 30% share and interest in the Couva property.

Two valuation reports were produced by Royce Realty Limited, one in relation to the rear and bathroom annexes on the property and the other in relation to the front building constructed upon same. The rear annexe and bathroom annexe were valued at $200,000 in the report dated the 5th September, 2011. The front building was valued at $800,000 in a report dated the 6th December, 2011. Accordingly, the total value of the property is one million dollars ($1,000,000). Effectively, therefore, the applicant’s share and interest in the Couva property is valued at $300,000. The respondent shall therefore pay to her such sum, being representative of her share and interest in the Couva property. In return, the applicant will transfer her share, title and interest in the said property in the sole name of the respondent. Such an order, in this Court’s view, will meet the justice of the case.

MAINTENANCE

According to her Form 8, the applicant also seeks maintenance for herself. Section 14 of the Act makes it clear that there is no general right to maintenance.

Section 15(1) provides that the Court may make a maintenance order where it is satisfied of any of the following factors-

(a) The applicant is unable to support herself adequately by reason of having the care and control of a child of the co-habitational relationship, or a child of the respondent, being in either case, a child who is (i) under the age of 12 years; or (ii) in the case of a physically disabled or mentally ill child, under the age of 18 years;

(b) that the applicant’s earning capacity has been adversely affected by the circumstances of the relationship, and in the opinion of the Court a maintenance order would increase the applicant’s earning capacity by enabling the applicant to undertake a course or programme of training or education; and

Section 15(2) sets out the factors to which the Court must have regard when determining whether to make a maintenance order and if so, the amount to be paid. More particularly, it requires the Court to consider-

(a) the age and state of health of each of the cohabitants including the physical and mental disability of each cohabitant;

(b) the income, property and financial resources of each cohabitant;

(d) the responsibilities of either cohabitant to support any other person;

(e) the terms of any order made under section 10 with respect to the property of the cohabitants;

(f) the duration of the relationship;

(g) a standard of living, that in all the circumstances is reasonable;

(h) the extent to which the applicant has contributed to the income, earning capacity, property and financial resources of the other cohabitant;

(i) the terms of any order made by a Court in respect of the maintenance of a child or children in the care and control of the applicant;

(j) any fact or circumstance that, in the opinion of the Court, the justice of the case requires to be taken into account.

Section 19 of the Act limits the duration of any maintenance order made, stipulating that while the Court may determine the period of the order, such period shall not exceed three years from the date on which the order was made.

The child Anil is the applicant’s “adopted” son. While the respondent may have cared for him as his own, he is not a child of the co-habitational relationship or a child of the respondent. Further, on the evidence, I am not satisfied that it can be definitively said that the applicant’s earning capacity was adversely affected by the circumstances of the relationship. She claims that the applicant stopped her from working, which he denies. There is nothing further to support this claim that he prevented her from working.

Accordingly, I am not satisfied that either section 15(1)(a) or 15(1)(b) of the Act set out at paragraph [56] above has been established. This leaves section 15(1)(c) which gives the Court the discretion to make an order for maintenance where, having regard to all the circumstances of the case, it is reasonable to do so. I turn now to the factors set out at section 15(2) of the Act.

(a) AGE AND STATE OF HEALTH OF EACH OF THE COHABITANTS…

The applicant is now 41 years old. Fortunately, she does not suffer from any health problems. The respondent is now 53 years old. He indicated in his Form 9 that he suffers from diabetes and said that he is on insulin and that he has “left eye problems”. He also indicated in his affidavit evidence that driving during the day places a strain on his eyes as a result of the glare of the sun. Of the parties, the applicant is more youthful and further, she enjoys better health.

(b) INCOME, PROPERTY AND FINANCIAL RESOURCES OF EACH COHABITANT

In her Form 8, the applicant indicated that she is employed as a sales clerk and earns $480 per week. This amounts to $1,920 per month. At trial, the applicant stated that she is now employed as a bartender at Romel’s Night Club and Lounge. She provided no details regarding the salary she now receives, nor was any request for same made by the respondent.

In his Form 9, the respondent indicated that he receives $1,146.37 per month in state benefits and an additional $2000 in rent. This claim is disputed by the applicant who alleged in her affidavit evidence that respondent rents seven of the apartments at approximately $10,000. In his affidavit evidence, the respondent denied this and claimed that the house is still incomplete with rent being received for only one of the apartments. He claimed that four others are unoccupied and need repairs in order to be habitable. At trial the respondent eventually agreed that there are seven rooms to be rented. He claimed that five are empty and two are occupied, bringing in $1200 and $1400 respectively. The respondent also indicated that he drives a private taxi at nights, though he did not indicate what he earns from same.

Based on the information provided in their Forms 8 and 9 respectively, it appears that while both parties have modest incomes, the income of the respondent when coupled with rents received, outweighs that of the applicant.

In her Form 8, the applicant stated that she has no money invested in the bank, though I note that the respondent had opened accounts for her in the past. In his Form 9, the respondent indicated that he has a savings account with Royal Bank which at the time of filing contained approximately $400. The Couva property is held jointly.

The applicant’s expenses as stated in her Form 8 amount to approximately $901 per month. Thus, based on her figures provided, after her monthly expenses she is left with a surplus of $1019. According to her Form 8, she has no debts and she does not pay rent. As said before, at trial she indicated that she is now employed as a bartender but provided no information regarding her income received from same. She also did not file any updated affidavits concerning her financial position in light of this employment change to assist the Court in its attempt to assess her claim for maintenance.

The respondent’s expenses as stated in his Form 9 amount to approximately $5216.96. Accordingly, his expenses exceed his income stated therein by $2070.59. However, he did indicate at trial that some of his expenses such as his food and car insurance costs are now less than that stated.

(d) THE RESPONSIBILITIES OF EITHER COHABITANT TO SUPPORT ANY OTHER PERSON

In his affidavit evidence filed on the 17th May, 2011, I note that the respondent indicated that he used money earned from driving a private taxi to support his two children and himself. I note that in her affidavit of the 26th January, 2011, the applicant mentioned that she resided with her adopted son and “the respondent’s two children, Daryl and Renee. “Accordingly, it may well be these two children to which the respondent was referring. However, I note that Darryl passed away in 2007 and Renee migrated to the USA to live with her mother. Renee’s age was not stated and in his Form 9, the respondent did not list any expenditure in his Form 9 relative to child care, which leads me to believe that this is an expense that he no longer has to bear.

(e) THE TERMS OF ANY ORDER MADE UNDER SECTION 10 WITH RESPECT TO THE PROPERTY OF THE COHABITANTS

By virtue of section 10 of the Act, I have determined that the applicant is entitled to a 30% share and interest in the Couva property which is assessed at $300,000.

(f) THE DURATION OF THE RELATIONSHIP

On the evidence, I have found that the relationship lasted approximately 8 years, from around mid- 2002 to October 2010.

(g) A STANDARD OF LIVING, THAT IN ALL THE CIRCUMSTANCES, IS REASONABLE

During the co-habitational relationship, it appears that the parties enjoyed a modest standard of living. The respondent tried to provide as best as he could but it appears that it was difficult to make ends meet, according to the applicant. In her affidavit evidence, the applicant indicated that she has nowhere to live with her son. At trial, she indicated that she now resides at Derrick Road, Chase Village. Again, in relation to her new job and residence, no updated Form 8 information was provided. From her Form 8 filed on the 26th January, 2011, I note that her income is far greater than her expenditure; she has no debt and does not pay rent. By contrast, though he continues to reside in the Couva property, I note that the respondent’s expenditure exceeds his income.

(h) THE EXTENT TO WHICH THE APPLICANT HAS CONTRIBUTED TO THE INCOME, EARNING CAPACITY, PROPERTY AND FINANCIAL RESOURCES OF THE OTHER COHABITANT

As was said before, I find that the respondent was the main financial provider during the co-habitational relationship. That being said, the applicant made her own respective contributions towards the welfare of the family as homemaker, doing chores and caring for the respondent when ill. However, it was the respondent’s finances that were used to acquire the property and construct the home.

(i) THE TERMS OF ANY ORDER MADE BY A COURT IN RESPECT OF THE MAINTENANCE OF A CHILD OR CHILDREN IN THE CARE AND CONTROL OF THE APPLICANT

No such order was made.

(j) ANY FACT OR CIRCUMSTANCE THAT, IN THE OPINION OF THE COURT, THE JUSTICE OF THE CASE REQUIRES TO BE TAKEN INTO ACCOUNT

All relevant facts have been considered above.

Having considered all of the circumstances of this case, I am view that an award of maintenance would not be just and equitable. The applicant is not without employment. Au contraire, she is gainfully employed as a bartender. The duty to give full and frank disclosure is a continuing one and I note that she did not file any updated Form 8 regarding her financial position in light of her new job and place of residence nor was any attempt made by her legal representative to introduce such updated information during the trial. Accordingly, all that this Court has to go on is the information provided in her Form 8 of the 26th January, 2011 and as it stands, based on the figures she herself provided therein, the applicant does not have a great deal of expenses.

The expenses that she does in fact incur appear to be more than adequately covered on her stated income, leaving her with more than half of her monthly earnings intact after payment of same. I also bear in mind that this Court has determined that she is entitled to 30% share and interest in the Couva property and that the respondent shall pay to her the sum of $300,000, such figure being representative of the value of same. Bearing in mind all of these factors, I do not think that an award of maintenance is appropriate.

Having considered all of the evidence in this case, this Court orders as follows:

ORDER

(a) It is declared that a co-habitational relationship existed between the applicant and the respondent from July 2002 to October 2010.

(b) The applicant is entitled to a property adjustment order in the property situate at No. 33 Ibis Avenue, Carli Bay Road, Couva (“the Couva property”). The applicant’s share and interest in the Couva property is assessed at 30%.

(c) The respondent shall, within 6 months from the date of this order, pay to the applicant the sum of $300,000 which said sum represents her 30% share and interest in the said Couva property.

(d) In default of compliance with clause (c) of this order, the said property shall be put up for sale by public auction before the doors of the Family Court and the proceeds of sale after deduction of all incidental expenses shall be divided between the parties in the proportions 30% to the applicant and 70% to the respondent. In the event that there is to be a sale, the applicant shall apply to the Court for directions for the advertisement and conduct of the said sale.

(e) Within 28 days of full payment of the said sum of $300,000 to the applicant in compliance with clause (c) of this order, the applicant shall execute the appropriate instrument of transfer transferring all her share, title and interest in the Couva property in the sole name of the respondent.

(f) In default of the applicant complying with the terms of clause (e) of this order, the Registrar of the Supreme Court or her designate shall be and is hereby empowered to execute the appropriate instrument of transfer to give effect to this order.

(g) It is declared that the applicant is not entitled to any maintenance payments from the respondent.

(h) Liberty to each party to apply.

The respondent shall pay 50% of the applicant’s costs to be taxed in default of agreement.

Dated this 15th day of January, 2014

Robin N. Mohammed

Judge

Alfred v Osborne

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