Sunday, 26 May 2013

Broken engagement: who keeps the ring?



Q: My boyfriend proposed, gave me a ring and then cheated on me 2 months later. I dumped him and now he wants the ring back. What does the law say about this?





N.B.: In order to reflect modern day society where a woman would sometimes propose to a man, the following terms have been altered for this article.
FiancĂ© – man, changed to ring-giver
FiancĂ©e – woman, changed to ring-receiver

A: I was unable to find anything in Trinidad law concerning it, so…

British Law (most likely what T&T will follow)
According to the UK’s Law Reform (Miscellaneous Provisions) Act 1970 - Section 3(2); “The gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.”

In other words, the engagement ring is a gift and the ring-receiver is not obliged to return it. 

American Law
Legally, this condition can be subject to either a modified or a strict fault rule:
  • Modified rule - the ring-giver can demand the return of the ring unless s/he breaks the engagement.
  • Strict rule - the ring-giver is entitled to the return unless his/her actions caused the breakup of the relationship, the same as the traditional approach.
There is also a third instance called the no-fault rule, whereby the ring must always be returned regardless of the circumstances. The ring only becomes the property of the woman when marriage occurs.


As with almost all laws in America, every state is different:

States Where an Engagement Ring Must Be Returned:
Many courts look at an engagement ring as a conditional gift that is given in contemplation of marriage. If there is no marriage, then the engagement ring needs to be returned. The courts also have held in these states that the reasoning for no-fault divorces holds for no-fault broken engagements so an engagement ring should always be returned regardless of who decided to call off the engagement.
Conditional Gift States:
·         Iowa
·         Kansas
·         Michigan
·         Minnesota
·         New Jersey
·         New Mexico
·         New York
·         Pennsylvania
·         Wisconsin

States Where an Engagement Ring May Be Kept:
In these locales, an engagement ring is considered to be an implied conditional gift and if the guy breaks the engagement, he won't get the ring back. If he doesn't break the engagement, he can request its return. Bottom line: If you get dumped, you get to keep the ring in these states.
Implied Conditional Gift States:
·         California
·         Texas
·         Washington

States Where an Engagement Ring Can Always Be Kept:
Other courts have held the belief that an engagement ring is an unconditional gift and so it doesn't need to be given back.
Unconditional Gift States:
·         Montana

Sunday, 19 May 2013

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. 

 
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.

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 prove the irretrievably breakdown of the marriage. 

Grounds for divorce according to Section 4(1) of the Matrimonial Proceedings and Property Act 1972, as amended:

·         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.



Wednesday, 15 May 2013

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 Retrenchment and Severance Benefits Act 1985, 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.