Forde v Alexander
Citation: TT 2013 HC 205
Title: FORDE v. ALEXANDER
Country: Trinidad and Tobago
Court: High Court
Suit No.: FH 184 of 2011
Judge(s): Ramkerrysingh, J.
Date: July 8, 2013
Subject: Family Law
Subsubject: Co-habitation – Duration and nature of relationship – Common residence – Ownership and/or use property – Financial support – Whether the applicant and the deceased were in a cohabiting relationship – Whether deceased and spouse were living separate and apart at time of death –Application dismissed – Administration of Estates Act, Sections 25(2) – Co-habitational Relationship Act, 1998 Section 2(1) – Distribution of Estates Act.
Ms. Reah Sookhai Instructed by Ms. Jacqueline Chang for the applicant
Mr. Gregory Delzin Instructed by Ms. Andrea Goddard for the respondent
- Cheryl Forde (the applicant) and Alvin Alexander (the Deceased) shared a long relationship spanning approximately eight years, during which she alleges they cohabited at her Mount Hope residence. Sadly, the Deceased was killed one morning while exercising a short distance from the Santa Rosa home in which he lived with his wife (the respondent), their two adult daughters and grandchild. The applicant filed an application to affirm a co-habitational relationship and to seek a declaration that she was entitled to share in the Deceased’s estate, which she later particularized in an amended application, to include a share in a property situate at Cornbird Drive, Pax Vale Santa Cruz (Cornbird Drive).
APPLICATION OF THE LAW – DISCUSSION ON THE LEGISLATION
- The governing body of legislation relevant to this case comprises the Co-habitational Relationships Act 1998 (CRA) and the Distribution of Estates Act No. 28 of 2000 (DEA) which, among other things, amends the Administration of Estates Act Ch. 9:01, (AEA). Section 25 (2) of the MA states that:
“Notwithstanding section 24 [Section 24 of the Administration of Estates Act Ch. 9:01 provides for the distribution of the estate of an intestate who is survived by a spouse and children] 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 pan 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.”
- Thus an applicant in such circumstances must prove two things if she wishes to succeed in her application. First, she must, on a balance of probabilities, prove that she and the deceased lived in a co-habitational relationship as prescribed by the CRA and secondly, that the deceased and his spouse were at the time of the deceased’s death living separate and apart from each other.
- I grappled with whether or not I should explain why a cohabitant needed to prove separation between a deceased and surviving spouse, before she could benefit from an intestate’s estate. In the end I thought it would be of some jurisprudential value to give my thoughts on the matter. In doing so, I found it useful to read the parliamentary debates on the Distribution of Estates Bill.
- The purpose of the CRA was to give recognition to persons living in a bona fide domestic arrangement who have chosen not to marry. By analogous interpretation the DEA was not intended to encourage or legitimize bigamy, by automatic distribution of an intestate’s estate between a surviving spouse and a cohabitant, especially in circumstances where the deceased had been living with both individuals in separate households. On the other hand, the AEA recognizes unions between former spouses (who have not divorced but have otherwise cut ties and moved on with their lives) and third parties, who have established households apart from the former marital union. Some persons live under these conditions for years without the spouse obtaining a decree dissolving the marriage, but with a mutual understanding among all the relevant parties that the marriage is over.
- In order to eliminate the unfairness that would result if a surviving cohabitant, having worked hard and accumulated assets with an intestate, were to lose her entitlement to the deceased’s estate, to a long-separated spouse, the AEA makes provision for that surviving cohabitant to inherit provided she can satisfy the court that at the time of death, he and the spouse were separated. In other words the court must be satisfied that the deceased was not upholding two simultaneous domestic unions before he died, and if so to find in favour of the surviving spouse. Hence the applicant’s dual responsibility under section 25 (2): She must prove that the relationship with the deceased qualifies to be recognized under the CRA, and that during their relationship and certainly by the time the deceased’s death, the Deceased and the spouse were living separate and apart from each. other. This forms the foundation upon which my decision is based.
- Once the applicant crosses the first barrier, what portion of the Deceased’s estate would she be entitled to? Section 25 (2) of the AEA restricts a cohabitant’s entitlement to assets acquired during the period of cohabitation, and this, subject to the rights of any surviving spouse and issue. The section does not apply to the estate at large. The applicant initially applied for an unspecified share in the estate of the deceased, before amending her claim to Cornbird Drive. If the applicant successfully satisfies the court that (1) she was a cohabitant of the Deceased, (2) that Cornbird was acquired during the course of the relationship, then the Deceased’s interest in the asset will devolve to his estate to be distributed among the applicant, the respondent and the surviving children. If she fails to prove cohabitation, then her claim for an entitlement to the estate also fails and if she succeeds she must then prove that the property was acquired during the relationship and that Deceased and the Intestate were separated at the time of his death.
- Is it necessary for a cohabitant to prove that she contributed to the acquisition of the property under review? That of course depends on the circumstances of the case. Although section 25 does not impose a duty on the cohabitant to prove contribution to an asset, each case must be taken on its own facts and circumstances. What if the cohabitant contributed some portion of the purchase price, and the property was registered in the Deceased’s sole name or in their joint names as tenants in common? In the case of the latter (tenants in common), a cohabitant would be possessed of one-half the legal interest while the other half devolves to the deceased’s estate, which, if my interpretation of section 25 (2) is correct, his half share will be distributed among the cohabitant, spouse and issue. On the other hand, the cohabitant will not be entitled to a one-half share, if the property were in the Deceased’s sole name. In that case the entire property devolves to the estate to be divided among the surviving cohabitant, spouse and children.
ISSUES TO BE DETERMINED
- Briefly, the case for the applicant is that she and the Deceased shared a co-habitational relationship for about 8 years continuing up to the time of his death. By her amended application she sought an order confirming a co-habitational relationship, a declaration of entitlement to the Deceased’s estate and further orders preventing the respondent from intermeddling with Cornbird Drive and a declaration that she was entitled to an equitable interest in the said property. The applicant’s case focused primarily on Cornbird Drive.
- I have read and heard the evidence of the parties and their witnesses and some clear conclusion can be drawn. It is evident that the Deceased and the applicant shared a relationship that lasted up to the time of his death. It is also clear that the Deceased was survived by his wife and four children. What is not so clear is the nature of the relationship he shared with the applicant and whether he and the respondent were living separate and apart. These are the two main issues that are to be determined. The third major issue surrounds the acquisition of. Cornbird Drive itself.
WAS THERE A COHABITATIONAL RELATIONSHIP? – WEIGHING THE EVIDENCE
- Turning now to the evidence and the first part of the problem. The applicant and her witnesses describe an association between her and the Deceased of an intimate and sexual nature, but one which I find, falls short of the statutory definition of cohabitation [Section 2 (1) of the Co-habitational Relationships Act 1998 defines co-habitational relationship thus “co-habitational relationship” means 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]. They all talk of a relationship consisting of fun times, attendance at social gatherings, preparations for Panorama limes, Sunday lunches and other carefree occasions.. Many of them made their observations after having spent just a few nights, or on other short-term visits at the applicant’s Mount Hope home. The evidence focuses on an intimate friendship much like a courtship, rather than one of a domestic union, where the couple experience the ups and downs of everyday life. Their lives together seemed superficial.
- Steve Martin, the Deceased’s son of a former union, was a casual observer of the relationship between the applicant and his father. Mr. Martin lives in England, visiting once a year at Carnival time. That apart, he telephoned the Deceased regularly, and grew to be quite fond of the applicant. Nonetheless, I find that he was not here often enough or long enough to observe the pertinent details of the lives of these two people. His evidence does not help the applicant’s case.
- The evidence of the applicant’s sister Lesley Plaza also focused on the social aspects of the relationship. There was nothing about the applicant and the Deceased doing any domestic tasks together, other than grocery shopping. Ms. Plaza gives no evidence of life spent in a bona fide domestic union. She described the Deceased as “a fixture in Cheryl’s home”, a strange way to portray two people supposedly living as husband and wife. This witness like all the others giving evidence on behalf of the applicant, referred to the Mount Hope residence as “Cheryl’s home”, hinting at a sense of unsettled occupation by the Deceased there, and intimating too, at a sense of separation and distinction in the lives of the applicant and the Deceased; an implication of “his” and “hers” rather than “theirs”.
- This sense of semi-displacement was further highlighted by Ms. Plaza’s account of the Deceased’s personal items being prominently displayed in the bedroom, by which I understood to mean, that they were out in the open. Why were his clothes and personal effects “prominently displayed” and not put away? From the photographs exhibited by the respondent [CA9], the Deceased kept his clothing and personal effects meticulously stored in his room at Santa Rosa. This was not so at Mount Hope. Is it because no space was made available to him there, or was it simply that it was pointless packing things away because the Deceased was constantly moving back and forth between Santa Rosa and Mount Hope? (As will be seen below [Paragraph 17] the housekeeper also spoke about the Deceased’s personal possessions lying about and the limited space available.) Ms. Plaza’s observation does not give the impression that the Deceased’s occupation of Mount Hope was permanent, but instead suggests an open-endedness rather than a defined living arrangement.
- In answer to Mr. Delzin’s question about the ownership of Mount Hope, Ms. Plaza said that the property “is my sister’s home. I wouldn’t describe it as Alvin’s home” [Cross Examination of Lesley Plaza; 8/05/13]. Whenever the applicant was out of the country Ms. Plaza said that the Deceased would either eat at her (Ms. Plaza’s) mother’s home, or he would purchase food. Why would someone who, as appears from both sides, loved to cook, not do so when the applicant was abroad? Did he not, or was he not allowed to feel comfortable enough at Mount Hope to make himself a meal when the applicant was away? Was it not his home too? This leads me to question the bona fides of the relationship.
- By her description Michelle Smith also alludes to a romantic-type liaison between the applicant and the Deceased, rather than cohabitation. She too was just a casual observer who spent some weeknights and weekends at Mount Hope, and admitted that the Deceased was not at Mount Hope on every occasion she was there. This statement supports the respondent’s case that the Deceased frequented and in fact lived at Santa Rosa. Ms. Smith’s evidence is weak and does not assist the applicant.
- The applicants’ housekeeper Camille Grant cleaned Mount Hope twice a month, usually on a Saturday, when she would interact with the Deceased. Ms. Grant did not give much information that could support a claim for cohabitation, but she did remark that the Deceased had limited space for his clothes.
- Che Johnson remembered the Deceased coming to his grandmother’s home in Curepe, when he was four years old. At fourteen he and the applicant moved into the Mount Hope townhouse, which he considered his mother’s home, but where the Deceased would be “all the time”. He recalled that every day when he woke up the Deceased was there. He does not accept that the Deceased went to Santa Rosa weekly, or three or four times a week in the last year preceding his death. His evidence strays from the applicant’s in that regard and is not supported by the evidence of other deponents on both sides. I find Che’s evidence conflicting and unreliable.
- The applicant’s remaining witnesses were either casual friends, or persons who worked on Cornbird Drive, or Mount Hope and who, in my opinion, were not in a position to give evidence relative to the way the applicant and the Deceased conducted their daily lives. The totality of their evidence is unhelpful to the applicant. In that regard, I find the evidence of the following witnesses to be of little probative value, to wit:
(1) the pan enthusiast Fitzroy Austin and
(2) Horace Samuel a friend of the Deceased who lives in New York, both of whom claim to be like brothers to the Deceased but who had little knowledge of his personal life, like the fact that he was married;
(3) the car salesman and casual acquaintance Gary Alves;
(4) Samraj Boodoo the landscaper who worked at Mount Hope for six hour stints every two weeks;
(5) the contractors James Montague, Henry Awong and Lionel Williams, who worked on Cornbird Drive.
- I turn now to examine the applicant’s evidence using the guidelines set out in Delzine v. Stowe [Delzine Stowe HCA 3007 of 2001]. The features of a ‘bona fide’ domestic relationship as provided in the New South Wales legislation [Property (Relationships) Act 1984, New South Wales; section 4 (2)] from which our Act was adopted, have been imported into our case law by the often-cited decision of Mendonca J as he then was, in the case of Delzine v. Stowe. Taking each feature separately let us see how many are present in the relationship under scrutiny and if any, the form they took as presented by the evidence. I am aware that these factors are guides only and that it is not necessary for all of them to be present, just as I appreciate that the list is not exhaustive and that each case must be taken on its own merits.
- Duration of the relationship: The applicant avers that the relationship commenced in 2003 and lasted until the Deceased’s death in 2011. Taken alone the length of time qualifies, but this must be juxtaposed against the other characteristics.
- The nature and extent of common residence: Some of this feature has been touched on above [Paragraph 11 et al ]. It is not disputed that the applicant and the Deceased, lived at Mount Hope, but I am not persuaded that they lived there as cohabitants. A striking portion of the applicant’s testimony is her own continuous reference to Mount Hope as “her” home. In her affidavit evidence she stated that she purchased Mount Hope for herself, her son and the Deceased to live in, but she denied this statement at trial. Che Johnson and Lesley Plaza both declared Mount Hope to be the applicant’s home. They could only have formed that impression from their observations and/or what may have been conveyed to them by her. There is no doubt that the Deceased slept at Mount Hope and spent time with the applicant there, but she was careful to make a distinction between Mount Hope as “her’ home and Cornbird Drive as the property she and the Deceased planned to make “their” home, leading me to question the extent to which Mount Hope could be considered a “common residence”. Why was there a need to distinguish the two if they were living in a common union of exclusive domesticity? Was Cornbird Drive the glue that would finally cement their relationship and seal their commitment to a shared life and common residence? Taking the argument further, was Mount Hope an occasional shelter for the Deceased in which he was just a welcome visitor?
- The applicant’s perpetual referral to Mount Hope as “my” home both in her oral and written testimonies, belies her statement in paragraph 12 of her January 2012 affidavit that she bought Mount Hope for herself, her son and the Deceased to live in. The significance of this distinction may become clearer in the following analogy: During the courtship of a young couple, the man buys a townhouse. The pair eventually marry and move into the house, recognizing that as the family grows they would need to move to more spacious accommodation. Until they acquire another home, is the townhouse in the meantime, considered the sole equitable property of the husband until the upgrade, or does the commitment to marriage over the years gradually transform it from one belonging solely to the husband, to one in which both accept that the wife has a beneficial interest? All things being equal, a fully committed spouse or cohabitant may view the townhouse as a joint equitable asset, in spite of the legal interest residing only with the one of them. Of course even the most dedicated and well-intentioned couple crumble and renege positions in the face of separation or divorce. But clearly the scenario I just described did not apply to the case before me.
- Returning to the applicant’s evidence, she admits that the Deceased went to Santa Rosa three or four times a week where “he lived with his wife partially”. By that statement does the applicant accept that some aspects of the marriage remained in spite of her on-going relationship with him?
- Whether or not a sexual relationship exists: Undeniably the relationship was sexual in nature.
- Financial Dependence, Interdependence and Support: The applicant and the Deceased held no joint funds together and apart from one occasion when she paid the Deceased’s $1000 contribution, to a group with which he socialized, there is no evidence that they were financially dependent on one another. Even this single contribution, according to her was paid “[i]n the last couple of months” when the Deceased was experiencing financial difficulties. The only other financial connection between the applicant and the Deceased, which also emerged in the last year or so of the Deceased’s life, concerned Cornbird Drive. The applicant allegedly rendered some financial assistance with the renovation project and was heavily involved in the decorating plans. Both incidents of financial assistance, that is, the contribution to the social group and the monetary contribution to Combird, came at a time, within the last year or two before the Deceased’s death, when the applicant described him as being “broke” due to a failed investment and the cost of the renovation project itself. For most of the eight-year relationship there is nothing that tied them together financially and it is my finding that there was no financial dependence or arrangement for financial support between them.
- The ownership use and acquisition of property: I have already discussed the unilateral manner in which the applicant treated Mount Hope which I will not repeat. Cornbird Drive on the other hand was looked upon by the applicant with a different hue. She said it was to be their dream home but, Mount Hope, the only residence shared by the Deceased and the applicant, was a property the latter treated as belonging to her exclusively and to which the Deceased had no interest.
- The Deceased kept his clothes and other personal effects at Mount Hope and although the applicant describes him having a “full wardrobe” [Affidavit of C. Forde; filed 30/01/12; paragraph 12] there, she accepted that he also had “his clothing and personal items” [Ibid; paragraph 13] at Santa Rosa. I take judicial note that the Deceased kept no valuable documents or papers at Mount Hope. In fact his financial statements and other important letters and documents [Affidavit of C. Alexander; filed 01/06/12; Exhibits (CA5]; [CA7] [CA8]] exhibited by the respondent contain the Santa Rosa address. None of these papers were sent to, or kept by the Deceased at Mount Hope. The applicant contended that the Deceased kept personal valuable documents at Mount Hope, but she produced none. I therefore reject that evidence.
- The applicant makes brief mention of a “joint interest in pursuing a small agricultural business …” which promised to be of some evidential value in support of her case, but she gives no details of the enterprise.
- Interestingly the only property acquired during the relationship was Mount Hope, which the applicant by her actions and treatment clearly does not regard as property in which the Deceased had an interest. Conversely Cornbird Drive, for which she is desperate to make a claim, was acquired by the Deceased in 1991 [Deed dated 01/05/1991; registered as number 7679 of 1991: Exhibit rim submitted by consent of the parties on 08/05/2013], a full eleven years before the relationship began. The importance of this date, is that even if the applicant succeeded in persuading the court that she and the Deceased lived in a bona fide domestic union and that at the time of his death he and the respondent were separated, she still would not be entitled to claim an interest in Cornbird Drive under the AEA, because it was not acquired during the period of the cohabitation and therefore not covered by section 25 (2) [Administration of Estates Act section 25 (2): “… where an intestate dies leaving a spouse and a cohabitant … only such part of the estate .ac was acquired during the Period of cohabitation* shall be distributed to the cohabitant ..” – *My Emphasis]. Equity does not help the applicant there. She may have a remedy under the law of trust, but not under the AEA.
- Counsel for the applicant called upon the court to exercise its discretion to establish an equitable interest in Cornbird Drive in favour of the applicant, by virtue of section 10 of the CRA, but that section is reserved strictly for property adjustment applications. In applications pursuant to the AEA one only looks to the CRA as the umbrella legislation to determine cohabitation. The distribution exercise of the estate is spelt out in the AEA and regrettably, there is not much room to employ equitable principles there. My one attempt to do so, for which I have publicly repented, was understandably reversed by the Court of Appeal and taught a valuable lesson in interpretation of the statute [See: Narine v. Chung &Anor FH01078/2007; Narine v Chune &Anor F Ap 11/2009].
- Commitment to a shared life:. As indicated earlier the majority of the applicant’s evidence as it related to their shared life, comprised mainly of socializing. She narrates neither the ordinary routines of everyday life, nor other mundane domestic affairs associated with marital and cohabiting couples. Cooking was either for entertainment with friends, or by the Deceased on Sundays. They attended social events either alone, in the company of others, or simply spent time at home with friends. It was as if the relationship was built on, and consisted primarily of, entertaining and taking part in social activities. There must be more to a shared domestic life than that. Apart from Cornbird Drive which apparently consumed their attention in the last two years of the Deceased’s life, there is an absence of plans for the future, decisions made and taken, support for each other’s dreams and accomplishments. Nothing of the usual interaction between persons who have settled into the humdrum of everyday living was reported. Only Cornbird Drive seemed to awaken a joint purpose.
- The care and support of children: Each of the players in this case has children the youngest being the applicant’s son Che, who would have been the only one falling to benefit from child care by a stepparent. There is no evidence that the Deceased played any parental role in his upbringing, or nurtured him in any way. There is no mention of any interaction between Che and the Deceased. The only reference to support of children is between the Deceased and the respondent in relation to their girls when they were younger and lately, towards their only grandchild.
- Performance of household duties: The applicant swore that she and the Deceased had separate “chore” which she mentioned in inverted commas, as though they were not really chores at all, but rather a simulation or imitation of the real thing. The applicant declared that the Deceased “participated in all household activity”. In detailing those activities it turned out that that was limited to cleaning the fridge. The only other chores consisted of grocery shopping and cooking. The general cleaning of Mount Hope was done by the housekeeper Camille Grant.
- Reputation and public aspects: All the applicant’s witnesses and her own testimony speak to a public image and perception of a couple who enjoyed pleasurable times with friends, whom they feted at home and at other get-togethers. Undoubtedly they shared an intimate friendship, but the evidence reveals a couple unbridled by the vagaries of everyday living. I am not satisfied that what they shared was a co-habitational relationship as envisioned by the Act. They kept so many portions of their lives compartmentalized and lived what seemed an ethereal almost enchanting existence, that it is difficult to conclude that what they shared was a bona fide domestic union.
- I repeat that I am acutely aware that the above characteristics are guides only and are not restrictive, but of the nine guiding factors, I have found only two present in this case; duration and sexual relationship. I am therefore not satisfied that the applicant has successfully pleaded a case for cohabitation.
- I can stop here but with the aim of contributing to the development of the jurisprudence in this area of the law, I will proceed to examine the second limb of section 25 (2) of the AEA, that is the issue of the separation of the Deceased and the respondent at the time of his death.
WERE THE DECEASED AND THE RESPONDENT LIVING SEPARATE AND APART AT THE TIME OF HIS DEATH?
- While the applicant accepts that the Deceased was married at the time of his death, she asserts that the marriage was over since 1994. She based her conclusion on what the Deceased told her and from her observations on the one occasion he showed her the room he occupied at Santa Rosa. The applicant admitted to the Deceased’s over-night visits to Santa Rosa, but contends that he and the respondent were not living together in the home. She also conceded that after the birth of his granddaughter and for the last year of his life, his visits to Santa Rosa increased to about three or four times per week.
- It is the respondent’s case that she and the Deceased lived together from the date of their marriage in 1977 until his death. She asserts that the only period of separation was from 1989 to 1994 when, following a joint decision, she worked as a nurse in Saudi Arabia. She maintains that the marriage was on-going during that time, but that portion of the evidence is not material to the case since the applicant’s evidence is that the marriage broke down in 1994.
- The respondent acknowledged that the Deceased’s unfaithfulness had a negative impact on their intimacy, but she never gave up on her marriage. She considered divorce to be against her religion and attended counselling with the Deceased in the hope that he would settle down. Though she agrees that the Deceased slept away from Santa Rosa, she contends that the practice did not start until 2008, and when he began experiencing trouble with his legs and coming home very late at night, he moved into a spare bedroom in order to sleep more comfortably and avoid disturbing her by his late arrivals. But she insists the marriage continued. This is not as implausible a concept as it first seems. I recently read an article advocating the benefits of separate bedrooms on domestic relationships [www.dailmail.co.uk/femail/article-1303935: Mare couples are opting for separate bedrooms — with surprising results].
- Pictures exhibited by the respondent capturing the Deceased’s belongings and paraphernalia at Santa Rosa, were all neatly packed and organized in drawers, cupboards and shelves, quite unlike the spill-over observed at. Mount Hope. The other occupants of Santa Rosa, namely the daughters of the respondent and the Deceased, also attest to the fact that the Deceased resided fully at Santa Rosa until about 2008, when he began spending Saturday nights away from home. They all said that he often cooked, paid the bills [substantiated by the respondent] [See Exhibits [CA6]] and was otherwise generally around the Santa Rosa home. They also confirmed that he exercised every morning. There was some disagreement whether this took the form of a jog or walk, or whether he could exercise at all because of complications with his leg, but I accept that he did some form of work-out several mornings a week around the Santa Rosa neighbourhood up to the time of his death. This was corroborated by the immediate neighbours. And the fact that his demise came while doing that very endeavour, strengthens the evidence that the Deceased regularly participated in this early-morning activity, and was habitually at Santa Rosa.
- The’ respondent and her daughters affirm that after attending church on Sunday mornings the Deceased spent the rest of the day away from home, but would return late on Sunday to prepare for work the next day. This coincides with the applicant’s evidence about Sunday lunches at Mount Hope cooked by the Deceased. I have already mentioned the significance of the absence of any document or important papers of the Deceased in the. applicant’s home, in stark contrast to the plethora of documents kept at Santa Rosa including a police report dated 15th April 2008 in which the Deceased gave his address as’ Santa Rosa, which further bolsters the respondent’s contention that Santa Rosa was the Deceased’s home.
- It is my finding that although the Deceased frequented Mount Hope, Santa Rosa was his established home, where he lived and which he maintained, until his death.
- What remain unclear are the living and sleeping arrangements at Santa Rosa and the impact the relationship had on the marriage. The respondent, Liana and Kamimura all attest that the respondent and the Deceased occupied separate bedrooms. The respondent and Kamirnura say that this started in 1996. I do not accept the respondent’s explanation for the separate bedrooms being his late-night returns and discomfort with his legs. It is more likely to have arisen out of anger, pain and resentment emanating from the Deceased’s behaviour. But as the years rolled on and the Deceased and respondent became more entrenched in their individual spaces, they just settled into a routine.
- It is evident that the closeness they once share began to fade. Whether it simply decreased or diminished altogether is uncertain, but it is obvious, for example, that the respondent (whether because she did not care, or because the Deceased did not discuss it with her) was not as knowledgeable about the Deceased’s leg complaints as the applicant was. She did not take him to, or accompany him to his doctor’s appointments, nor is there evidence that she attended to him during these painful episodes. Moreover, the fact that this devout Catholic did not organize nine-nights services [A Roman Catholic practice of prayer service held for nine consecutive nights following the death of a loved one.] for the Deceased after his death, is also suggestive of the emotional `detachment between them before he died. Whatever the circumstances does the separate sleeping arrangement indicate that the marriage was at an end?
- The respondent contends that in spite of them sleeping in separate rooms she and the Deceased -continued to be intimate for some time after. She persevered in the marriage in the hope that the Deceased would one day curb his philandering ways. She once asked him why he did not seek a divorce if he wanted to be with other women, to which he responded “once married always married.” They attended marriage counselling with Father Harvey but it either had little impact, or was discontinued, or both. At least from about 2001 they no longer had sexual intercourse. For the 11 years or so onwards the respondent said that she and the Deceased still shared a marriage, that she was happy with the living arrangements and that the Deceased was providing for them financially. Whether in fact she was happy about the situation is doubtful. She may have just have resigned herself into acceptance. She said that “[h]e paid all the bills, took care of everything [and] was a good provider.” The Deceased cooked when he was at Santa Rosa, though it is not clear if it was for himself, or for the family including the respondent. Evidently some elements of the marriage prevailed.
- Patricia Hercules, a very credible witness, was a close friend of the respondent and godmother to her daughters. She was intimately aware of the details of the marriage and was confidante to the respondent’s worries about, the Deceased’s unfaithfulness. She was present for and part of the process to persuade Kaminura to return home after a falling-out with her parents. Her involvement in assisting Kaminura was the cause of some friction between her and the respondent, but they remained close friends. Their friendship appeared to me to be a mature one. It spanned many years, and survived adversities. These friends seem to have a mutual respect for each other and although their bond is strong, I am not of the view that Ms. Hercules’s evidence was in any way staged or fabricated to misrepresent the facts. Her loyalty to the respondent did not prevent her from attending the nine-nights sessions held by the applicant in honour of the Deceased.
- I apologize for the length of the above assessment of this witness, but I have taken the time to describe Ms. Hercules’s participation in this series of events, not only because she played an important role in both sides, but also because I consider her a neutral and impartial witness. I find her to be an upright and upstanding individual, and a very reliable witness. The applicant would only have invited this virtual stranger to attend and lead such a significant religious ritual, because she trusted her to honour the Deceased. She could only have heard about Ms. Hercules from the Deceased recognizing her importance to him and the Alexander family. Her attendance at the prayer services was indicative of the same selflessness displayed when she reached out to Kaminura and the family in a time of crisis. This is an individual who strives to do what she thinks is the right and proper course of action even if it means conflicting with those close to her.
- Ms. Hercules gave evidence that the Deceased lived at Santa Rosa up until he died and that all she knew about the applicant was that the Deceased “… was with a tall red skin girl…” [Cross-Examination of Patricia Hercules; 15/05/13], which, I interpret in Trinidad parlance to mean, that he was intimately involved with the individual she describes. In her own words she said) “I cannot say that Alvin and Cheryl Forde were having a relationship since 1990 because he had a million relationships.” [supra] Ms. Hercules was a frequent visitor to Santa Rosa throughout her long friendship with the respondent, especially when she lived at Golden Grove and when she moved to Woodbrook some 18 years ago, she visited less often but periodically about once per month. Crucially, she deposed that whenever she visited she saw Alvin there and he would cook on some occasions. Her evidence is a strong, independent account of the Deceased’s presence at Santa Rosa up to the time of his death.
- Although she, like Ms. Plaza and Mr. Martin was a casual observer, because of the close relationship she shared with the Deceased and the respondent she was privy to many of the family’s confidences and having encapsulated my appraisal of her above, I am satisfied that if she were of the opinion, or otherwise knew that the Deceased did not live at Santa Rosa she would have said so. I appreciate that this conjecture is merely speculative, so I will not place any weight on it, but that apart, this witness’s testimony was truthful and remained unshaken.
- The respondent’s neighbour Wallace Gittens was another very credible witness although he deposed to some facts that may not have been within his personal knowledge. Most of that evidence was expunged, but what remained was highly valuable to the respondent’s case. Mr. Gittens spoke of the Deceased’s daily jogs, the times he left Santa Rosa on mornings, his (Gittens’s) habit of closing the gate after the Deceased drove off – the last time being the week he died- and observing his car in the garage at night, all compelling evidence that the Deceased was constantly at Santa Rosa, signifying that he was not just a passer-by, but that this was his home. Mr. Gittens’s recollection that the electricity supply to the Santa Rosa property had been disconnected and his conversation with the Deceased about arrangements for its reconnection shortly before he was killed, also supports the respondent’s evidence that the Deceased was responsible for the payment of the utility bills at Santa Rosa up to the time of his death. This witness said that he spoke to the Deceased up to the Friday before he died, which places him at Santa Rosa just two days earlier.
- From the evidence the Alexander and Gittens families shared a mutual neighbourly respect and although they may not have exchanged confidences, there was some closeness between them, enough to satisfy me, from Mr. Gittens’s evidence, that the Deceased lived at Santa Rosa, exercised daily, left the home regularly and returned daily more often than not.
- My finding is that some important aspects of the marriage remained intact up to the Deceased’s untimely death. Had he not died I assume the situation would have continued as it was, with the marriage in a sort of limbo, neither ended nor quite holding fast. It is my finding that the respondent resigned herself to a situation that she could do nothing about. She wanted her marriage to work, but understandably could not get past the emotional obstacle the relationship put in her way.
- The dynamic of separating and divorcing couples is unique to each individual situation, but the marriage before me contained elements of a subsisting marriage save, without the sexual intercourse and sharing the same bedroom. The evidence established that the Deceased lived at Santa Rosa, paid household bills, cooked and assisted in caring for his grandchild. From the evidence. I cannot say that they were living apart. Santa Rosa was his primary and official residence, he refused to divorce the respondent, who looked toward him to pay utility bills and handle domestic emergencies.
- Section 25 (2) prescribes that the deceased and the spouse must be living separate and apart if a cohabitant is to succeed in her application, or put another way they must not be living with each other. What does living with each other entail? Living with each other” must mean living as part of the same household, which effectively means sharing a common life together. Apart from the separate bedrooms, it is my judgment that the respondent and the Deceased shared a life together which continued until his death. The fact that he included the applicant in his life did not alter his commitment to the marriage.
- Mouncer v. Mouncer :1 All ER 289 a case based on determining whether a couple had been separated for two years, instructively analyzed what “living apart” in the same household meant. Some of the elements in Mouncer are present in the case before me. There the husband and wife were on very bad terms and slept in separate bedrooms. They continued to take their meals together, albeit that they were cooked by the wife often in the company of one or both of their children. They shared the cleaning of the house and made no distinction between one part of the house and the other, although the wife no longer did any washing for the husband. The only reason for the husband continuing to live in the house was his wish to live with and help look after the children. The court held that “a rejection of a normal physical relationship coupled with an absence of normal affection” was not sufficient to constitute living apart. That statement reinforces my position.
- Even if I am wrong in drawing those conclusions, because the evidence as I have found it does not support the applicant’s case for a co-habitational relationship and further, since Cornbird Drive was not an asset acquired during the alleged relationship, it matters little whether or not the Deceased and the respondent were fully committed to the marriage, but for completeness I declare that the Deceased and the respondent were not living separate and apart at the time of his death.
SUMMARY AND CONCLUSIONS
- There is strong and compelling evidence that the Deceased lived at Santa Rosa. Nothing the applicant has said dislodges that and while there is some uncertainty whether the marriage between the Deceased and the respondent was a fully binding one, the applicant has not discharged her burden to prove on a balance of probabilities, that what she shared with the Deceased was a bona fide domestic union. The fact that the Deceased was often at Santa Rosa, exercised every morning, that his personal effects and important papers and documents were kept at Santa Rosa, that he continued to discharge his obligations to his family, coupled with lack of evidence to support most of the Delzine guidelines, all weaken the applicant’s case that she cohabited with the Deceased at Mount Hope in a co-habitational relationship.
- Moreover, I am not persuaded that the Deceased and the respondent lived at Santa Rosa separately, in the sense that the marriage had ended, If the Deceased wanted to exit the marriage and show the world and particularly the applicant that the marriage was over, he could have easily done so. There was nothing preventing him from residing permanently and exclusively at Mount Hope, nor was there anything stopping him from obtaining a decree to sever all ties with the respondent making it clear to all, that he was no longer married. Why would he persist in this enigmatic double-existence, giving confused signals if he considered himself, or wished to give others the impression that he was free from the bonds of matrimony? Clearly he wanted to preserve his marital ties to the respondent.
- Early in her affidavit the applicant complained that she was tired of sneaking around and that she longed to be with the Deceased “exclusively”. For the eight years of the relationship she was never able to achieve that, despite it always being in the Deceased’s power to grant her that wish. His reputation as a philanderer was acknowledged by all who knew him, and it is evident that he was not prepared to give up either his wandering ways, or his marriage. Wanting the best of both worlds he lived a parallel life, preserving the sanctity and stability of his marriage, while at the same time fulfilling his emotional and physical needs which were met by the applicant
- I hold that at the time of his death the Deceased and the respondent were not living separate and apart and in’ .any event, I am not satisfied from the evidence that the applicant and the Deceased shared a co-habitational relationship. Consequently the applicant’s claim fails.
CORNBIRD DRIVE — A FINAL WORD
- There is still the question of an equitable interest with respect to monies the applicant allegedly she spent on Cornbird Drive. As pointed out above section 25 (2) of the AEA excludes Cornbird Drive as an asset to which she is entitled since its acquisition predates the relationship. This does not preclude her from pursuing a civil claim under the law of trusts. If she can prove that she did expend money on Cornbird Drive it may not be completely lost to her as this may present a viable remedy.
- The applicant’s application is dismissed with costs to be paid to the respondent fit for advocate attorney in default of agreement.