Mohammed v Albert

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Mendonca, J.A.,Kangaloo, J.A.,Warner, J.A.
• Judgment Date: 31 July 2006
• Neutral Citation: TT 2006 CA 27
• Docket Number: Civil Appeal No. 165 of 2004; HCA No. 1651 of 2003
• Date: 31 July 2006

Court of Appeal

Warner, J.A.; Kangaloo, J.A.; Mendonca, J.A.

Civil Appeal No. 165 of 2004; HCA No. 1651 of 2003

Mohammed

and

Albert

Appearances:

Ms. Hyacinth Griffith for the appellant.

Ms. Lynette Seebaran for respondent.

Family law - Property division - Cohabitational relationship — Adjustment — Contribution — Home purchase with lottery winnings for the benefit of the family — Trial judge's findings were supported by evidence — Decision was not plainly wrong — Appeal dismissed.

Mendonca, J.A.

1 I have read the judgment of Warner, J.A. and I agree that the appeal should be dismissed. I would however, like to add a few comments of my own with respect to the adjustment of the interest of the parties in the property as ordered by the judge.

2 The order which is the subject of this appeal was made by the judge under section 6(a) of the Cohabitational Relationships Act, 1998 (the Act). This section provides that a cohabitant may apply to the High Court for the grant of an adjustment order. On such an application section 10(1) of the Act is relevant. This is as follows:-

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 acquisitions or improvement of the property and the financial resources of the partners; and

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

• (c) the right, title, interest or claim of a legal spouse in the property.

3 In this case section 10(1)(c) has no relevance but the contributions of the cohabitants of the kind referred to in sections 10(1)(a) and (b) are of critical importance. Under section 10 the Court must have regard to (a) the financial contributions made directly or indirectly by or on behalf of the cohabitants for the purpose of the acquisition or improvement of the property and the financial resources of the partners, and (b) any other contribution including any contributions in the capacity of homemaker or parent, made by either of the cohabitants to the welfare of the family constituted by them in order to arrive to a determination of what is just and equitable. Apart from the contributions of the cohabitants other considerations are relevant such as the needs and means of the parties and whether the contributions made by either cohabitant have been sufficiently compensated. These considerations do not have an independent bearing on the question of what is just and equitable but only general relevance to that question. It has been noted that a court cannot say that because a defendant has $11,000,000.00 and the plaintiff less than $5,000.00 it is just and equitable to make an adjustment (See Dwer v. Kaljo (1987) 11 Fam LR 785 and Evans v. Marmont [1997] 42 NSWLR 70.). The contributions outlined in section 10 are fundamental and are the focal point of the inquiry.

4 It is also relevant to have regard to the context in which the contributions are made. As I mentioned in High Court Action No. 3007 of 2001 Anthony Delzine v. Judy Stowe to disregard the context may lead the Court into a misunderstanding of the significance of the contributions. It is therefore necessary for the Court to have regard to the context in which the contributions were made, or as is said the contributions should not be considered in isolation from the nature and incidents of the relationship as a whole.

5 In this matter the respondent sought an adjustment order in respect of a property at Perseverance Road, Haleland Park, Maraval (the Haleland Park property). This was where the parties and the children of their relationship lived as a family from about December, 1999 to the end of their relationship in or around May, 2003. It is not in dispute that the monies to acquire the property came from a sum of money that was won in the “Lotto”. This sum amounted to $1,794,559.18 (the Lotto fund). The judge concluded that although the winning Lotto ticket was bought by Anton, one of the children of the family, and subsequently given to the respondent and the Lotto fund then placed in joint accounts in the name of the appellant and the respondent, it was the common intention that the fund would be used for the benefit of the family as constituted by the appellant, the respondent and their three children. From the Lotto fund the parties bought the Haleland Park property in their joint names furnished and renovated it. As a consequence the judge correctly held that the appellant and the respondent at the commencement of their cohabitational relationship (and I would add, or shortly thereafter) owned the Haleland Park property and the balance of the Lotto fund jointly.

6 For the purpose of section 10(1)(a) therefore, since the financial contributions to the acquisition and improvement of the Haleland Park property, were made from the Lotto fund, they were made by the parties equally.

7 Section 10(l)(b) deals with other contributions. These are not any contributions, but must be contributions made by either of the cohabitants to the welfare of the family constituted by them. The section specifically refers to contributions made in the capacity of homemaker or parent. Such contributions are not to be regarded as inferior to other contributions and are not to be assessed in a token way but in terms of their true worth to the welfare of their family. Section 10(1)(b) therefore permits a cohabitant who stays at home and takes care of the house and family while the other works to acquire an interest in the property to which that cohabitant has made no other contribution.

8 The section refers to other contributions and not only those made in the capacity of a homemaker or a parent. Such...