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Reposted june 9th, 2014
Written:June 9, 2014

Prince Neto DCB Waite is a Doctoral
Candidate at the New York University School of Law. He is a graduate of
the University of the West Indies (Mona Campus and Cave Hill Campus) and
Harvard Law School.

By Prince Neto DCB Waite
global fight for lesbian, gay, bisexual and transgender (LBGT) rights
sits on a continuum from the fight for mere survival to the fight to
live with equal dignity to heterosexual couples. In general, the
Commonwealth Caribbean rests at the lower end on that continuum where
survival—freedom from violence (vigilante killing hate crimes and
abuse), freedom from criminal sanction and access to basic amenities
(e.g. healthcare and housing)—is the central goal of LGBT rights
advocacy. In this region, the Commonwealth of the Bahamas’ position as
somewhat of a regional outlier was confirmed by its Court of Appeal in a
recent decision.
men, BJ and AJ (not their real names) were in an intimate relationship
for some fifteen (15) years. After dating for a period of about three
(3) months they decided to see each other exclusively. They fell in love
and pursued a genuinely committed relationship. Unfortunately, like
many couples, BJ’s and AJ’s once loving relationship irretrievably broke
down. During the course of their relationship, the couple purchased
numerous properties; one was used as their home and the others as
investments. Throughout the relationship they also purchased pieces of
art work, a boat and a truck. Even though BJ provided all the purchase
monies, the investment properties were held in their joint names, either
as tenants in common or joint tenants. The couple’s home, however, was
held in the sole name of BJ. The boat and truck were held in joint names
and the art works, purchased by BJ, were on display in the family home.
the dissolution of the relationship, BJ began legal proceedings against
AJ in The Bahamian Supreme Court contending that as he was the one that
provided all of the purchase monies, he was the sole owner of the legal
and beneficial interests of all of the real and personal properties. AJ
contended that they shared the properties equally. The Supreme Court
agreed with BJ’s assertions. AJ appealed to the Court of Appeal.

Applying the Common Intention
Principle to a Cohabiting Gay Couple

Court of Appeal separated the properties into two categories: (1)
Investment Property and (2) Domestic Property. What is notable about the
decision is how the Court dealt with the domestic properties. The
Bahamian Court of Appeal shared the view of the UK House of Lords (as
expressed in a case concerning a heterosexual cohabiting couple that
contributed unequal money towards the purchasing of the family home)
that “cohabiting couples are in a different kind of relationship. The
place where they live together is their home. Living together is an
exercise in give and take, mutual co-operation and compromise. Who pays
for what in regard to the home had to be seen in the wider context of
their overall relationship. A more practical, down to earth, fact based
approach is called for.” It follows then that monetary contribution
towards purchasing domestic properties is not the sole deciding factor
as to where the beneficial interests lay. The Court of Appeal disagreed
with the Supreme Court Judge that the sentiments expressed by the Law
Lords did not apply to the case between BJ and AJ. The Court stated that
“[t]his aspect of the case is clearly about the rights of a cohabiting
couple in a house which they occupied together.” As such, the
determining factor in the present context is whether there was a “common
intention between the parties [that] they were to share the beneficial
interest in [the home].”
The two most remarkable things about the
Court of Appeal’s decision are: (1) the recognition that a cohabiting
gay couple is a domestic context, and (2) cohabiting gay couples are on
the same legal footing as cohabiting heterosexual couples. In
recognizing the couple, the Court said: “The evidence before the court
below [the Supreme Court], although the parties shied away from making
any reference to it in this Court, was clearly that [BJ] and [AJ] had an
intimate relationship for the nearly 15 years they lived together.”
Even in the men’s shyness, the Court of Appeal recognized that as they
were a former couple it was only fitting to characterize their
relationship as a domestic context. The Court could have treated the men
as cohabiting friends, but it did not. In a matter-of-fact way, the
Court of Appeal Judges had before it two men and treated them with human
dignity by recognizing their intimate relationship and cohabitation as a
proper domestic context for the purpose of deciding where the
beneficial interests in the property lay.
Having treated the
former couple’s home as a domestic context, the Court went on to apply
the common intention principle to determine who held the beneficial
interest. The Court’s apparent thought process was this: Is this a
domestic context? Yes, because they were a cohabiting couple. What legal
rules are we to apply? We apply the rules that are relevant to
cohabiting couples. The sexual orientation of the men was irrelevant.
Having identified them as a couple, the principles of non-discrimination
and equality before the law were embedded in the Court’s decision—For
the purpose of disposition of property in relation to a former
cohabiting couple, heterosexual couples and gay couples are on equal
footing before law.

The Court’s decision shows that, at
least in The Bahamas, the law is no longer blind to the familial
arrangements of gay couples. So, as gay couples embark on life together
and entangle their affairs as ordinary couples do they should know that
there are rules of family law and property law that apply to them. Where
a court is asked to determine the shared interests (if any) of the
domestic property of a former cohabiting couple (gay or straight) it is
well to be aware that the court will look at the wider context of your
overall relationship. Some things that the court may consider include:
(1) advice given at the time of purchase of the property, (2) reasons
for registration in joint names or sole name, (3) purpose for purchasing
the property, (4) how the purchase of the property was financed,
initially and subsequently, (5) whether couple is jointly liable for the
mortgage, (6) how the couple arrange their finances, separately or
together, (7) nature of couple’s relationship, and (8) whether there are
children for which both are responsible to provide a home.

Regional Applicability
is wise to note that even though the decision is situated in a context
specific to The Bahamas, that is, Parliament’s failure to account for
common law or long-term relationships in the property law regime and the
decriminalization of same sex sexual relations, it is not unreasonable
to suggest that these facts do not prevent the application or adoption
of The Bahamian approach in other countries in the region.

Absence of Property Law Rule for Cohabiting Gay Couples
common intention principle effectively empowers a court to determine
the property rights of couples or cohabitees. The principle arose in the
UK where the House of Lords felt that the British Parliament failed to
devise a scheme for the disposition of domestic property that was
in-keeping with the ‘changing social and economic circumstances’. These
circumstances were the diversity of domestic circumstances or contexts
other than marriage. Consequently, the court had to step in. The
relevant question in the Commonwealth Caribbean is whether there is a
diversity of domestic circumstances, which the parliaments have failed
to take into account when shaping the relevant rules on property rights.
In The Bahamas the answer is yes; The Bahamian Parliament enacted rules
only for married couples, not heterosexual common law unions, or any
other type of long-term relationship or cohabitation. It follows to
reason that the basis on which the UK House of Lords acted also exists
in The Bahamas. Similar failings of the legislature exist across the
Caribbean but in a different form. While jurisdictions like Jamaica,
Guyana, Trinidad and Tobago, Barbados and Belize devised a scheme that
takes account of long-term heterosexual relationships they fail to apply
them to cohabiting gay couples. This failure was long recognized by a
judge of the Jamaican Supreme Court. This legislative failure creates
the basis on which other courts in the region can find persuasive the
approach taken by the Bahamian Court of Appeal.

Irrelevance of the Criminalization of Same-Sex Sexual Relations
early as 1991 in the Sexual Offences and Domestic Violence Act, The
Bahamas decriminalized same-sex sexual relations between consenting
adults (males and females) in private (see now, Section 5B, Sexual
Offences Act). As such, there was no basis, in the case of BJ and AJ,
for questioning the legality of the domestic affairs of the parties
before the Court of Appeal. This is not the same reality in the wider
Commonwealth Caribbean, where same-sex sexual relations remain
criminalized in both public and private.

In any event, for
the purposes of disposition of domestic property of former cohabiting
gay couples the legality of their sexual relations is hardly decisive.
Firstly, what the law criminalizes is sexual relations, not cohabitation
or the formation of a relationship. As such, a court’s legal
characterization of a gay couple’s cohabitation as a domestic context
for the purpose of property rights does not turn on the sexual relations
of the couple. For that reason, criminalization of same-sex sexual
relations should be an irrelevant consideration. Secondly, the
constitutional guarantee of the right to privacy fortifies a
dispensation that excludes concern with adults’ sexual relations in a
domestic context.

To conclude, The Bahamian Court of
Appeal’s decision may be seen as less than innovative or groundbreaking
because it’s just the application of existing rules to a first-in-time
set of facts. However, when viewed in the broader social context of
rampant anti-LGBT sentiments in the Commonwealth Caribbean the
progressive hue of the decision shines bright.