Maharajh, heir to a real estate fortune estimated to be worth more than $30 million, was beaten to death at his Chacon Street, San Fernando, home on January 11. Immediately his relatives and Enal embarked on bitter legal sparring for his estate and body. The cremation, originally set for last Saturday, was stopped after Enal obtained a High Court injunction.

On Wednesday, in the San Fernando Civil Court, Justice Peter Jamadar ordered that Enal, sole executrix of the late physician’s will, had the right to his body and to dispose of it as she chooses. He also gave her the right to the property and ordered Maharajh’s relatives not to meddle in the multi-million dollar estate.

The fortune included prime real estate in Trinidad and Tobago’s second city — a shopping mall on Lower High Street, as well as properties on St James and San Fernando Streets — in addition to property in Canada.

Maharajh’s relatives had disputed Enal’s claim to be the late doctor’s common-law wife, claiming that she had been his maid. There is a strong likelihood that the legal fighting will continue over the next several months.

It was only within the last decade that laws were passed offering legal protection to common-law spouses. Two landmark pieces of legislation — the Distribution of Estates Act and the Cohabitational Relationship Act — address many of the contentious issues connected to property and financial settlements with regard to couples who are not legally married.

Before that time, common-law spouses and the children born out of such relationships were often deprived of property and money by relatives of their deceased partners.

One case in the 1970s involved a couple who lived together in a common-law relationship for 25 years and had five children together. During that time, they had acquired their own home, purchased in the man’s name, and had accumulated other assets.

When the man died suddenly, his mother moved in and claimed his body and all his assets, including the house and his pension entitlements. The woman with whom he had lived for more than two decades and their children were left with nothing.

In another matter, the couple lived together for close to 40 decades. Both worked and acquired property and accumulated savings and were looking forward to a happy and comfortable retirement. However, those dreams ended when the man died after a long, lingering illness.

During his illness, his common-law wife cared for him with no assistance from his relatives. As soon as he died, however, his only surviving sibling, a brother, suddenly appeared and took possession of his house, bank accounts and all his assets. The de facto spouse, by then an elderly woman, ended up without the home and possessions she had contributed to over all those years.

The landmark case that brought the whole issue of cohabitational relationships to the forefront, however, was the matter of Ramratie Harrinarine and Rasheed Aziz and Kadar Aziz which was heard in the High Court in 1982.

In that judgment, which attracted a great deal of public attention at the time, it was noted that it showed "the tragic circumstances which rise when one of them dies (usually the man) leaving the woman (more often than not with children) in occupation of the house they both shared at the time of his death."

In this particular matter, the man had a previous relationship and other children. Over the years of the common-law relationship, the woman had kept cattle and livestock, worked as a labourer at Caroni and had assisted in the construction of the house they occupied.

When her common-law husband died, his children from the previous relationship claimed an interest in the property.

In making his ruling, the judge in the matter noted that there were many people in Trinidad and Tobago who lived together as man and wife but were not legally married. He granted the common-law wife a half share in the property of her deceased common-law husband, noting, "In this jurisdiction when there is a common-law marriage, there is little or no difference in substance between it and a lawful marriage."

That ruling was challenged, however, and in 1998 the Court of Appeal stated, "If the status of a common-law wife in Trinidad and Tobago is to be accorded a formal validity, or is to be denuded of disability, or is to attract benefits outside the application of these principles, there would have to be statutory intervention."

At that time, there was no legal acknowledgment of common-law unions and the country was still operating under archaic inheritance laws based on 19th century United Kingdom legislation. The laws were designed to serve a society in which wealth was simply transferred from one male generation to another male generation, in an era when divorce was rare, illegitimate births were a source of shame and living together outside of marriage was not given protection under the law.

Long after those outdated laws were repealed in England, they remained on the books in Trinidad and Tobago.

In 1981, the Trinidad and Tobago Parliament saw the need to address deficiencies in laws relating to common-law unions. The result was enactment of a law reform package comprising six pieces of legislation, including the 1981 Succession Act. However, the Act was never proclaimed.

The first significant legislative development with respect to common-law marriages came in 1997 when then Attorney-General Ramesh Lawrence Maharaj introduced the Cohabitational Relationships Bill in Parliament. At the time it was estimated that there were more than 40,000 persons in the country living in common-law unions,

The legislation, which was successfully piloted through the Upper and Lower Houses, was assented to in September 1998.

Maharaj explained that it was intended to "confront the realities of conjugal life in Trinidad and Tobago" and " . . . to redress some of the injustices and hardships caused when parties in common-law unions do not recognise their obligations to each other."

According to Maharaj, the legislation was introduced because there was a high percentage of common-law unions and such unions had "increased to noticeable proportions in the preceding three decades."

"The aim of these legislative measures is really not to give legal status to the relationship, to take away the rights of the legal spouse or to equate a cohabitational relationship with a marriage. It is to recognise obligations which parties have to each other and to provide a legal framework for these obligations to be enforced."

Under the Act, the court is empowered to make a maintenance order against a common-law spouse as well as orders in respect of property rights. It also recognises the fact that even if a common-law spouse does not bring in money, the performance of her duties as a parent and within the household can be taken as a contribution for her to get an interest in property.

The legislation also provides machinery for cohabitation and separation agreements to be registered.

However, the court must be satisfied that the relationship has lasted at least five years; that there is a child/children of the relationship; or that the party has made substantial contributions.

During debate of the legislation in Parliament, Maharaj was careful to point out that it was not meant to "destroy the sanctity of marriage."

"This law is not intended to do that," he said, "Any objective look at this law would show that it is meant to give protection to the product of these relationships."

He further pointed out that the legislation was not designed to legitimise common-law relationships but simply to recognise such relationships for the purposes of enforcing financial obligations.

More legal cover was given to common-law spouses under the Distribution of Estates Act in 2000. This, according to Maharaj, was intended to "redress some of the injustices which occur under the existing laws."

In those days, neither of the laws relating to inheritance rights — the Administration of Estates Ordinance and the Wills and Probate Ordinance — addressed a common-law spouse’s right to inherit in the absence of a will, or allowed such spouses to make applications to the courts for relief.

"The result had been that grave hardship and serious injustices have been imposed on those persons who are dependants of a deceased testator at the time of his death and for whom no financial provision is made in a will," Maharaj said.

"For those . . . who enter and remain in long-standing common-law or cohabiting relationships and who are not entitled to apply for relief under the Wills and Probate Ordinance as dependant, they were not entitled to inherit any part of the deceased partner’s estate."

The Distribution of Estates Act allowed the court to entertain the application of a surviving cohabitant for financial relief and to make an order for provision to be made out of the estate of the deceased partner of the applicant regardless of the fact that either or both of them were also parties to a legal marriage.

Among other things, a surviving spouse or cohabitant is entitled to one-half of the share of the deceased partner’s estate, regardless of the number of children left by the deceased.

In the event that there is both a legal spouse and a common-law spouse, the estate is shared equally between the surviving spouse and the cohabitant.

Both laws are gender neutral, making it clear that the provisions are not restricted to a common-law wife. However, it is also made clear in the legislation that it does not cover homosexual unions, as has been done in other jurisdictions. The provisions relate solely to a "man and woman" relationship.

Other laws in this country which cover common-law unions include the Workmen’s Compen-sation Act and the National Insurance Act. Under the latter, a common-law spouse may be granted widow’s benefits.

The Domestic Violence Act allows common-law spouses to obtain protection orders from the court.

However, while the situation has improved considerably for common-law spouses, they are still not in as favourable position under the law as a legal spouse.

This was underscored by attorney-at-law Hazel Thompson-Ahye in a paper entitled "The Law and the Cohabitant in Trinidad and Tobago: Balancing Whose Interest? Pursuing Whose Priorities?"

She noted: "A surviving cohabitant, even though there may be a child of the relationship, does not qualify for inheritance rights if the relationship lasted for less than five years. By contrast, a spouse, whatever the duration of the marriage, enjoys rights to the estate of the deceased spouse.

"Further, the requirement of living together immediately preceding the death can create hardship in a case where the parties enjoyed a long period of cohabitation but separated shortly before the death of the cohabitant.

"The cohabitant is treated in law as a surviving spouse only where an intestate dies leaving no surviving spouse."