Common Law Marriage
T&T is one of the few countries around the world which still recognises what you might know colloquially as 'common law marriage'. Even though 'common law' refers to judge made law, the basis of 'common law' marriage today is the Cohabitational Relationships Act and legally common law marriages are known as cohabitational relationships.
Common law marriage recognises an informal relationship (meaning not married under the Marriage Act, the Hindu Marriage Act, the Muslim Marriage Act or the Orisa Marriage Act) and creates legal rights and obligations on each person to the relationship.
What qualifies as a common law marriage?
Not every relationship will qualify as a common law marriage. Instead, there are certain requirements which must be met. These are set out by the Cohabitational Relationship Act:
1. The first requirement is that the parties must not be married but live together as husband and wife on a bona fide domestic basis. This is distinct from a visiting relationship where the persons are in a relationship but live separately. This is a mandatory requirement.
2. Once this is met, any of the following conditions must be met:
a. the parties must have lived in a cohabitational relationship for no less than 5 years; or
b. there is a child (meaning a child of either or both parties to a cohabitational relationship and includes adopted children) arising out of the cohabitational relationship; or
c. the person has made substantial contributions to the common law relationship. These are financial contributions made directly or indirectly by or on behalf of the persons in the relationship to acquire or improve property and financial resources of the persons to the relationship and other contributions made by either party to the relationship as homemaker or either parent.
Why recognise a common law relationship?
Well, it's a matter of protecting persons who are in a long term relationship who aren't married under any of the marriage laws mentioned above. Recognising common law marriage entitled parties to certain rights which may protect them if the relationship doesn't work out or if their partner dies.
For example, in relation to common law marriages, the courts have certain powers relating to property, cohabitant maintenance or child maintenance. Although these are dependent upon certain things (either or both parties being domiciled in T&T and both parties living in T&T for at least one-third of their relationship), the court may intervene to award either party maintenance, distribute property or, in the case of debt, ensure that the surviving party is provided for following death of the other.
Unlike marriages under the other marriage laws referred to, parties to a common law marriage may also create a separation agreement either before during or after their relationship to agree to their rights and obligations relating to maintenance and property distribution at the end of their relationship or on death. Although the court will take more note of these separation agreements than it does of pre-nuptial or post-nuptial agreements for married couples, it still may vary the terms of the agreement to be in accordance with the law.
Death of a party to the common law marriage
Where a party to a common law marriage has died without a will (known as 'intestate'), the surviving cohabitant may benefit from the estate of the deceased only where they lived with them in a common law marriage for at least 5 years immediately before the deceased's passing (note that this is narrower than the circumstances which create a common law relationship). This falls under the Distribution of Estates Act. In these circumstances, the surviving party is treated as a spouse of the deceased. This means that:
1. where the deceased has no children and no surviving legally married spouse, the surviving cohabitant may be entitled to the whole estate.
2. where the deceased has children, but no surviving legally married spouse, the surviving cohabitant may be entitled to half the estate with the remaining half to be divided equally between the children.
3. where there is a surviving legally married spouse, who lived separate and apart from the deceased, the surviving cohabitant is only entitled to a portion of the deceased estate which was acquired during the common law relationship.
As an example of the last scenario, imagine persons A, B and C. A and B are married and later separate but are not legally divorced. They live separately and following separation B enters a common law relationship with C. B then dies leaving both A and C. A is the surviving legally married spouse whilst person C would be the surviving cohabitant. Person C is entitled to a share of the estate but of only such part acquired during the period of cohabitation. This is also subject to any surviving children of A.
The time in which a surviving cohabitant may claim a share of the estate of their deceased cohabitant is very short - within 28 days of death a notification of interest must be filed with the court. Within 3 months of filing, an application must then be made to have the court affirm the cohabitational relationship and to identify the amount of the estate being claimed. If this situation applies to you, do not delay but consult with a lawyer immediately. If you do not already have a lawyer, you can read more about choosing a lawyer here.
Last updated 26 January 2022.