THE RIGHTS OF A COMMON LAW SPOUSE IN TRINIDAD AND TOBAGO.

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​Many of us know persons who are in common-law relationships in T&T or maybe you're in a common law relationship yourself. Did you know a common-law spouse has certain rights in Trinidad and Tobago?

But first...what exactly is a common law relationship?

A common-law or cohabitational relationship arises when there are two persons of the opposite sex, who, not being married to each other, are living or have lived together as husband and wife.

In determining whether two persons are living together as husband and wife, all the circumstances of the relationship are taken into account, including the following matters that may be relevant in a particular case:
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• the duration of the relationship.
  
  
• the nature and extent of the common residence.
  
  
• whether or not a sexual relationship exists.
  
  
• the degree of financial dependence or interdependence between the two persons, and any arrangements for financial support, between the parties.
  
  
• the ownership, use and acquisition of property between the two persons.
  
  
• the degree of their mutual commitment to a shared life
  
  
• the care and support of children
  
  
• the performance of household duties and
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• the reputation and public aspects of the relationship

Now that we understand what exactly is a common law relationship, what are the rights of the persons in it?

A common law spouse can apply for maintenance for herself/himself as well as orders in respect of their rights to property.

Under the Cohabitational Relationships Act, the court is empowered to make orders for maintenance for a common-law spouse as well as orders in respect of their rights to property. To be granted any of these orders the person must satisfy the court that either:

• the cohabitational relationship existed for not less than five years; or
  
  
• there is a child arising out of the cohabitational relationship; or
  
  
• he or she made substantial contributions to the cohabitational relationship. Contributions include financial contributions made to the acquisition or improvement of the property and the financial resources of the partners as well as any contributions made as the homemaker or parent to the welfare of the family. 

The person making such an application must also satisfy the court that failure to make the order would result in grave injustice to him/her. The application must also be made within two years after the day on which the couple stopped living together.

It should be noted that the court will not make a maintenance order in favour of a cohabitant who has entered into a subsequent cohabitational relationship or has married or remarried. 

Persons in a common law relationship can enter into a cohabitational relationship agreement or separation agreement. 

Under the Cohabitational Relationships Act, parties can have a cohabitational relationship or separation agreement, which is an agreement made between the parties before, during or after their relationship, in which they agree to their respective rights and obligations during their relationship or when they cease to live together or upon death. They may come to an agreement on:
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• their interests in or division of property,
  
  
• their maintenance obligations,
  
  
• the right to direct the education and training of their children
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• and any other matter in the settlement of their affairs. 

​However, nothing in a cohabitation or separation agreement affects the power of a Court to make an order with respect to the right to custody in relation to the children of the parties to the agreement. Additionally, the court still retains the power to vary these agreements in certain circumstances.

A common law spouse can apply for custody, access or maintenance of a child born out of the common law relationship.

Under the Family Law (Guardianship of Minors, Domicile and Maintenance) Act a common law spouse can make an application for custody, maintenance or access to a child born out of that common law relationship. 

On the death of a common law spouse who left no valid will, the surviving common-law spouse is entitled to benefit from the deceased's estate.

This is possible because of section 25 of the Administration of Estates Act. However, the couple must have lived together continuously in a genuine domestic relationship for a period of not less than five years immediately before the death of the deceased. 

The surviving common-law spouse is entitled to benefit from the estate of the deceased in the following ways:
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• where there are no children and no surviving legally married spouse, the common-law spouse is entitled to the whole estate;
  
  
• where the deceased has a child or children and no surviving legally-married spouse, the surviving common-law spouse is entitled to half of the estate;
  
  
• where the deceased has a surviving legally-married spouse, the surviving common-law spouse is only entitled to a portion of the deceased's estate acquired during the common-law relationship.

To claim his or her share of the estate, the surviving common-law spouse must file with the High Court a notice of interest as the surviving cohabitant within 28 days of the deceased's death. If the surviving cohabitant was unable to file within 28 days of the deceased's death, in certain circumstances, he or she can make an application to the court asking for an extension of time for filing the notice of interest. The surviving cohabitant must then apply to the court within three months after that to obtain an order affirming that there was a common-law relationship and affirming how much of the estate he or she is entitled to.

Important Notice: This post does not constitute or provide legal advice. Always consult with a suitably qualified attorney-at-law on any legal problem or issue.

Law For All is managed by the Aurora Chambers Legal Practice.

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