Cohabitational Relationships (Part 1)

In 1998 the Cohabitational Relationships Act became law in Trinidad and Tobago. It provides rights and obligations for those who are in less formal unions, but are living together as husband and wife on a domestic bona fide basis (also known as a Common-law relationship), to safeguard them when such a relationship ends.

As we will examine later, our Cohabitational Relationships Act (“the Act”) can be viewed as progressive in that it allows cohabitants to make agreements and can also be deemed to have provided rights of a more liberal nature to those who may desire to have more autonomy over the manner and terms of their union, including the ending of same and in particular, relative to maintenance obligations and the division of property. This is noteworthy as it is not a privilege that is extended to married persons in the legislation that relate to marriages or financial provision and property settlement. This is the case as there is a general position that pre-nuptial and early marital agreements cannot usurp the authority of the Court, particularly if any party is no longer in agreement with the terms of the earlier agreement.

As it relates to the right to apply for maintenance and also relative to applying for an interest in property acquired within the relationship, the Act confers some rights which are similar in nature to those that a husband or wife in a formal marriage would have held since the enactment and proclamation of the Matrimonial Proceedings and Property Act in Trinidad and Tobago.

However, the factors which are taken into consideration in making awards under this Act are not wholly identical to those outlined in the Matrimonial Proceedings and Property Act. There is a distinction between the rights of married persons and cohabitants, as per the sentiments of Tam J in Blacks v Douglas (TT 2006 HC 88) where it was referenced that the Cohabitational Relationships Act “seeks to compensate the parties for their contributions rather than to ensure that the parties, as far as possible, are allowed to maintain the same standard of living on the breakdown as they enjoyed during their relationship. This is, of course, different from the position of married persons governed by Matrimonial Proceedings and Property Act”. Therefore, in arriving at his decision as to an appropriate award that ought to be made, the learned Judge concluded that it would be appropriate to seek to compensate the applicant for the contributions she made during the twelve years of the cohabitational relationship.

A noteworthy principle which was put forward on an obiter dicta (in passing) basis in local caselaw is the principle that ‘living together on a bona fide domestic basis does not necessarily require that the parties must be living under the same roof. Justice Mendonca (as he then was) provided guidance on this topic in Delzine v Stowe H.C.A. 3007 of 2001, where it was also stated that other aspects of a cohabitational relationship must exist and a number of possible factors that may prove that such a relationship existed were listed. Some of these factors are:

1. the duration of the relationship,
2. the ownership, use and acquisition of property,
3. the degree of mutual commitment to a shared life,
4. the reputation and public aspects of the relationship.

These factors have since been used as an important guide to legal practitioners seeking to prove and argue as to whether a bona fide cohabitational relationship exists.

In the latter case of Irwin Mohammed v. Jasmine Albert CA 165 of 2004, Warner, JA, in identifying the elements of a cohabitational relationship expressed that the phrase ‘“on a bona fide domestic basis” connotes ties pertaining to home, household and family affairs… These are the hallmarks of domesticity… I therefore conclude that there is no requirement that the parties physically live together under the same roof, once those elements are present.’ As such, the substance of the relationship must possess tangible ties of a shared family life which are over and above that of a mere visiting relationship. So, for example, in situations where parties may have jointly acquired a property together with the intention that it would be used for their benefit as a family, but they are yet to move in together, once other factors exist which support a finding that they have been living together as husband and wife on a bona fide domestic basis, it may be possible that they can be found to have been cohabitants.

As referenced earlier, under the Act, the parties can settle a cohabitational agreement which is an agreement which makes provision with respect to financial and other matters, and includes an agreement which varies a cohabitation agreement. A separation agreement can settle agreements in similar terms but these can vary an earlier cohabitation agreement or separation agreement.

By such agreements, which may be made between the parties before, during or after their relationship, they may agree to their respective rights and obligations during their period of cohabitation or when they cease to live together or upon death or separation, as it relates to interest in property, maintenance, education and training of their children and any other matter in the settlement of their affairs. However, under the Act, the Court still retains the power to vary these agreements in certain circumstances. If the parties to a cohabitation agreement marry each other, the agreement shall become unenforceable.