Trinidad & Tobago Pro Se Divorce Procedure

Q: Do I need a Lawyer to file for a divorce? I don't have much money, so I'm wondering if I can do it myself. 

A: Yes, it is possible to file for a divorce on your own, but due to the complexity of many divorces, I will not recommend that anyone does this unless, of course, they have a legal background. If not done properly, i.e., proper wording on documents; use of correct forms; and having things done within the time frames and signed by the right people, the outcome can be very adverse.

With that being said, the cost still remains an issue as the average Lawyer in Trinidad and Tobago charges TT$5000/US$800/£530 to START proceedings. This price will increase depending on the case's complexity, i.e., the involvement of property, children, joint business venture and/or alimony. 

Now, the purpose of this website is to assist people as much as possible, especially the disadvantaged in society, so you can e-mail me at any time, and I will let you know if, based on your case, I can be of any help. 

 

Beginning The Pro Se Process: The spouse who files for the divorce is called the Petitioner. The other spouse is called the Respondent. 

If you are the Petitioner, you will file a Petition for Divorce. The Petitioner can get the divorce package from the Family Court for TT$5 or I can send via e-mail. 

If you are the Respondent, the petition would have been already filed and you will have been served; you now have to respond. 

Below are things to consider before filing a Petition for Divorce:

• Where to file the Original Petition.
• How to file.
• Grounds for divorce
• Notifying your spouse that you have filed for divorce
  

Where to File: The Family Court is located at Cipriani House, 4 Cipriani Boulevard, Port of Spain and can be contacted on 223-1060. Tobago residents must use the Trinidad Family Court to file a divorce.

Filing Your Petition for Divorce: After completing the petition and statement of arrangements (if there are children involved), you have to hand deliver the form with the ORIGINAL marriage certificate and pay the necessary fees, which is around $100 for a simple divorce. Fees vary depending on pages and number of separate applications included. 

N.B. The petition MUST be printed on both sides of the paper (not one side per page) and two copies of the petition and marriage certificate are required. 

The clerk will stamp them with the date and file the original with the court. The two copies will be date stamped and one returned to you for your files. The other is used to notify the Respondent that a petition has been filed. 

If you want to get a divorce, you have to show the irretrievably breakdown of the marriage by proving one of the following grounds for divorce:

·         adultery

·         unreasonable behaviour  (e.g. abuse) 

·         two years of separation (need consent of Respondent)

·         five years of separation (do not need consent of Respondent)

·         abandonment -- one spouse left the other without there being an agreement of separation [The Family Court only accepts this application if done by an Attorney]

 

The most important section is entitled “Particulars” because this is what the Judge reads to decide whether or not the divorce should be granted. This is where the Petitioner states the reasons why the marriage should end, giving specific details of behaviour by the Respondent to prove this. The Petitioner CANNOT use his/her own behaviour as examples. The easiest way to go about getting a divorce is to prove unreasonable behaviour; e.g., adultery, abuse, or breach of trust. The unreasonable behaviour MUST be within the last 6 months, proof of which is needed, such as police reports, texts, e-mails or pictures. I want to reiterate the fact that the “Particulars” section is the MOST important part of the divorce petition, so the language used must be clear, coherent and chronological.

Severance Pay Entitlement

Q: A few questions on this topic have come through recently.

A: Severance pay is usually only paid to workers who have been made redundant or retirees, and in very rare cases, people who resign can also qualify. An employer is not required to pay severance to workers if everyone is being severed, owing to the fact that the business is being closed down; however, the employer must pay severance if only a portion of the workforce is being made redundant. 

Firstly, according to Section 6 of the Retrenchmentand Severance Benefits Act 1985, as amended, the employer is required to give the employees 45 days notice in writing.

Secondly, your rights (if you qualify): 

Severance Benefit Entitlements in Trinidad and Tobago

18(1) Where any part of the employer's retrenchment proposals is eventually put into effect, severance benefits shall be payable by the employer to the retrenched worker in accordance with this section.

(2) Where the retrenched worker is covered by a registered Collective Agreement, the terms of which with respect to severance benefits are no less favourable than those set out in this Act with respect to severance benefits, the provisions of the said Collective Agreement shall apply.

(3) Where the retrenched worker is not covered in the manner set out in subsection (2), the minimum severance benefits payable by the employer are as follows-

(a) where he has served the employer without a break in service for between more than one but less than five years, he is entitled for each such completed year of service to two weeks' pay at his basic rate if he is an hourly, daily or weekly rated worker, or one half month's pay at his basic rate if he is a monthly rated worker;

(b) where he has served the employer without a break in service for five years or more, he is in addition to his entitlement under paragraph (a), entitled for the fifth year and for each succeeding completed year of service to three weeks pay at his basic rate if he is an hourly, daily or weekly rated worker, or three-quarters month's pay at his basic rate if he is a monthly rated worker.

(4) For each period of service amounting to less than a completed year of service and in respect of workers who qualify under section 5(1)(d), payment shall be calculated on a pro-rata basis.

(5) Every worker to whom this Act applies retrenched on or after 1st January, 1985, is entitled to the severance benefits contemplated by this section regardless of the number of workers in his employer's work force.

(6) This section shall not apply to a retrenched worker who is eligible to receive from his employer terminal benefits that are no less favourable than those set out in this section.

---In order to qualify for this benefit the employee must fall within the definition of ‘worker' in the Industrial Relations Act 1972, as amended, which says:

“worker”, subject to subsection (3), means— (a)any person who has entered into or works under a contract with an employer to do any skilled, unskilled, manual, technical, clerical or other work for hire or reward, whether the contract is expressed or implied, oral or in writing, or partly oral and partly in writing, and whether it is a contract of service or apprenticeship or a contract personally to execute any work or labour;

(b)any person who by any trade usage or custom or as a result of any established pattern of employment or recruitment of labour in any business or industry is usually employed or usually offers himself for and accepts employment accordingly; or

(c)any person who provides services or performs duties for an employer under a labour only contract, within the meaning of subsection (4)(b
 

The following are exceptions to the IRA's definition of a worker:

• workers with less than one year continuous service;
• workers on probation;
• casual workers;
• seasonal workers;
• fixed term workers;
• independent contractors

 

 The Retrenchment and Severance Benefits Act is one of a few pieces of legislation that allows the non-unionized individual worker who alleges non-compliance with the Act, to take his or her matter to the Industrial Court. The worker may take his or her complaint to the Minister of Labour where it is reported as a trade dispute and dealt with as such according to the provisions of the IRA.

 An employer who contravenes the Act is guilty of an industrial relations offence and liable to a fine of $10,000.

Rights of Way & Easements

Q: My partner bought a lot of land in Tobago; the vendors were supposed to complete the access road. After 18 months they had not, so we offered to do this as we were at a stalemate. The vendors agreed, but a person who owns land at the bottom of the hill leading to the land has refused to allow us to cross his land. apparently he had previously agreed. The deed shows the road reserve marked on it.

Is there anything we can do??? It seems we will never get our home and we cannot sell because of this dispute any way we liked the plot/location and wanted this to be our home.

A: If the location of your land resembles "B" in the above picture, you have to make an application to the court to grant an easement by necessity. Since you said the deed shows that the road has already been earmarked, it should be easy for you to get that order.

NB: The terms “easement” and “right-of-way” are often used interchangeably, but I don't agree. The difference between the two is that a right-of-way is passage only, while the easement is usage as well. The line can become blurred in many situations, but that is the basic difference.

A right of way is a right for someone to travel over another person’s private property. The right is “attached” to the property of the person who has the right, which means that if that person sells the property, the right of way automatically passes with the property to the purchaser. This is confirmed in section 16(1) of the Conveyancing and Law of Property Act 1939 - Chapter 56:01, as amended.

An easement is a permanent right authorizing a person or party to use land owned by another for a particular purpose. There are two types of easements:

1.   Affirmative - gives the easement holder the right to do something on the grantor (owner) of the easement's land, such as travel on a road through the grantor's land 
2.  Negative - allows the easement holder to prevent the grantor of the easement from doing something on his land that is lawful for him to do, such as building a structure that obscures light or a scenic view

Dominant and servient estate

As defined by Evershed MR in Re Ellenborough Park [1956], an easement requires the existence of at least two parties; the party gaining the benefit of the easement is the dominant estate (or dominant tenement), while the party granting the burden is the servient estate (or servient tenement).

For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A's house. Here, parcel A is the dominant estate, receiving the benefit, and parcel B is the servient estate, granting the benefit or suffering the burden.

Ways to create easements and rights-of-way

• Expressly - "granted" or "reserved" in a deed or other legal instrument
• Implied - not recorded or explicitly stated, but reflect the practices and customs of use for a property
  
• Prescription – acquired by 20 years use without force, without secrecy and without the oral or written consent of the servient land owner
• Necessity - if there was only one access road to a house, the law will not allow the road owner to deny the owner of the property access to their land, if that is the only access available. See picture below for example.