Shacking-up is a term often used in the Caribbean to describe unmarried couples who have chosen to live together. There are many legal questions that arise when cohabitational relationships end. How will property be divided? What about issues of inheritance or maintenance? In Trinidad and Tobago, ‘cohabitants’ do have rights, but it should be noted that these rights apply only to heterosexual couples.
Student Attorney Jenell Gibson took a closer look at these rights, for the Hugh Wooding Law School’s Human Rights law Clinic. Jenell’s article was published in the Trinidad Guardian newspaper on Monday 4th January, 2016.
A common feature of our diverse culture is what is known in law as “cohabitational relationships”. That is, where two persons have been living together as man and wife without having gone through an official ceremony of marriage.
The Cohabitational Relationships Act was passed in 1998 and it recognised the existence of such informal unions. It granted to these persons many of the same rights in relation to property and maintenance, which a wife or husband in a formal marriage ordinarily possess.
Qualifying as a Cohabitant
To establish a cohabitational relationship, the parties must be of the opposite sex and must not be married to each other, but must have lived or continue to live together as husband and wife. They must either:
- have cohabited for no less than five years;
- have a child from the relationship; or
- the person applying (“the applicant”) made substantial contributions to the home, whether financial or non-financial.
Only one of these conditions needs to be satisfied to qualify.
After the breakdown of the relationship, the application must be made within two years. However, this period may be extended if it causes hardship.
Property Settlement and Maintenance
The court may order that one party be given a share in the property owned if the applicant has made substantial contributions to the home. The court also has the power to order that maintenance be paid to the applicant if he/she cannot support him/herself properly as a result of having to care for the child. Maintenance may also be granted to allow the applicant to increase their income by pursuing a training program or educational course
The courts will consider a variety of factors in making the order, including: the parties’ age, health, income and resources; the duration of the relationship; and whether the applicant is in a new cohabitational relationship or has since married.
The courts have also laid down the following principles:
- ‘living together’ does not necessarily mean living under the same roof, however, the other elements of a cohabitational relationship must exist;
- The 5 year period must be continuous, however small breaks may be discounted; and
- There is no requirement for both parties to be single; a cohabitational relationship may exist despite one or both parties being legally married.
An Alternative Route
Where the person cannot qualify as a cohabitant under the Act, because, for example, they have only cohabited for four years, this person may still be able to obtain a share in the property if he/ she can establish a “common intention constructive trust”.
They must show that there was an intention that they would have a beneficial share of the property. This is done by showing evidence of a direct intention (express words used by the other party that he/she would have a share of the property) or an indirect intention (financial contributions made which allowed the other to acquire the property e.g. mortgage payments). The person must also show that they acted on that intention to their detriment.
It is important for persons to recognise that on the breakdown of such relationships the law does in fact provide assistance. Provided that the requirements are satisfied, such parties may be granted rights over property and/or maintenance where this is fair.
Students of the Hugh Wooding Law School Human Rights Law Clinic were each given the opportunity to write an article for the “Law Made Simple” column in the Trinidad Guardian newspaper.
These topics ranged from analysis of specific legislation, to general legal concepts. The aim of this exercise was to teach the students how to write about complex legal issues, for the average newspaper reader.
This article was re-published with permission from the Human Rights Law Clinic.