Denise Tuitt v Rosanna Tuitt

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Thom JA
• Judgment Date: 23 May 2022
• Judgment citation (vLex): [2022] ECSC J0523-1
• Docket Number: MNIHCVAP2021/0003

Between:

Denise Tuitt

Appellant

and

Rosanna Tuitt

Respondent

Before:

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster, QC Justice of Appeal [Ag.]

The Hon. Mr. John Carrington, QC Justice of Appeal [Ag.]

MNIHCVAP2021/0003

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Grant of letters of administration in deceased's estate — Competing claims by two women claiming to be the lawful widow of deceased — Deceased married twice — Whether deceased was divorced from first wife at time of marriage to second wife — Presumption of marriage — Whether presumption of marriage arose in relation to deceased's second marriage — Burden of proof — Whether burden of rebutting the presumption of marriage on first wife or second wife — Standard of proof — Balance of probabilities — Whether there was clear, positive and compelling evidence to rebut the presumption of marriage in relation to the deceased's second marriage.

On 11 ^th August 2020, Rosanna Tuitt (“the respondent”) applied for letters of administration of the estate of John Tuitt (“the deceased”), stating that she was his lawful widow. She exhibited her marriage certificate which showed they had been married on 15 ^th November 1975 (“the first marriage”). Denise Tuitt (“the appellant”) filed a caveat opposing the application, claiming that she was the deceased's widow and that they had been married on 30 ^th November 1994 (“the second marriage”). The appellant also exhibited a marriage certificate issued by the high court registrar which stated that the deceased was divorced at the time of the second marriage. The appellant claimed she only knew that the deceased was not divorced in July 2020, when she became aware of a certificate of “no divorce” issued by a different high court registrar. The respondent asserted that she and the deceased had never been divorced.

The learned judge determined that the central issue was whether the deceased and the respondent had been divorced. The learned judge considered that the burden was on the appellant to show that the deceased was divorced from the respondent at the time of the second marriage. He also considered the alternative position; that the burden was on the respondent to prove that there was no divorce. On considering the evidence, the learned judge found that the respondent discharged the burden, proving that there was no divorce, and granted her application. The appellant, being dissatisfied with the decision, appealed.

The central issues on appeal were: (i) whether there was a presumption of marriage in relation to the deceased's second marriage; and if so, (ii) whether the burden was on the appellant or the respondent to rebut the presumption; (iii) what was the appliable standard of proof for rebutting the presumption; and (iv) whether the learned judge erred in finding that the presumption had been rebutted by the respondent. The appellant argued that the presumption of marriage arose in relation to the deceased's second marriage and that the burden was on the respondent to rebut the presumption. The appellant further contended that the learned judge applied an incorrect test as to the standard of proof and in so doing, he erred in concluding that the respondent rebutted the presumption.

Held: dismissing the appeal and ordering that each party shall bear their own costs, that:

• 1. The presumption of marriage may arise in several circumstances. This includes instances where parties have undertaken a ceremony of marriage and subsequently cohabited or where there has been no evidence of a marriage, but the parties have cohabited for such a long period as to have acquired the reputation of being spouses. On the facts, the appellant's marriage certificate and her affidavit evidence, though not very detailed, were sufficient evidence to raise the presumption of marriage in favour of the deceased's second marriage. Whilst counsel for the appellant argued that the burden should have been on the respondent to rebut the presumption, the learned judge, having considered the issue of the burden of proof to be on the respondent, as contended by the appellant and having arrived at the same conclusion, did not err in his decision.

  Chief Adjudication Officer v Bath [2000] 1 FLR 8 applied and Pazpena de Vire v Pazpena de Vire [2001] 1 FLR 460 considered.

• 2. In order to rebut the presumption of marriage, there must be clear, positive and compelling evidence, which shows that on a balance of probabilities, there was no valid marriage. Even though the learned judge, in referring to the standard of proof, did not explicitly state the standard as being on the balance of probabilities, he applied the correct test and therefore did not err.

  Chief Adjudication Officer v Bath [2000] 1 FLR 8 applied; Pazpena de Vire v Pazpena de Vire [2001] 1 FLR 460 considered and Hayatleh v Modfy [2017] EWCA Civ 70 applied.

• 3. An appellate court will exercise restraint before departing from a trial judge's evaluation of evidence and facts before him. The appellate court will only depart if the trial judge has made an error of law or of principle, or reached a decision which no reasonable court, applying law and principle could have reached. The learned judge had to determine whether the evidence before him was clear, positive and compelling so as to rebut the presumption of marriage in relation to the deceased's second marriage. There was no evidence before him of a divorce between the deceased and the respondent and there was a certificate of “no divorce” from the high court registrar in relation to the deceased's first marriage. This evidence was clear, positive and compelling, and sufficient to rebut the presumption of marriage in relation to the deceased's second marriage. It follows that, there was no error of law or principle in the learned judge's finding and no basis upon which this Court could interfere with his decision.

  Biogen Inc v Medeva plc [1998] 1 LRC 21 applied; Singh v Public Service Commission [2019] UKPC 18 applied and Asaad v Kurter [2013] EWHC 3852 considered.

Appearances:

Mr. Jean Kelsick for the Appellant

Mr. Sylvester Carrott for the Respondent

Thom JA

1 This appeal arises from a decision of the learned judge in which he granted letters of administration to one of two competing women, who both claimed to be the lawful widow of the deceased, John Tuitt.

Background

2 John Tuitt (“John”) was a resident of Montserrat who was born on 26 ^th November 1942. He married Rosanna Tuitt (“Rosanna”), the respondent, in Montserrat on 15 ^th November 1975. Two children were born to them, being a daughter, Grenette and a son, Kevin.

3 Denise Tuitt (“Denise”), the appellant, and John were married in Montserrat on 30 ^th November 1994. The validity of this marriage is disputed. It is also disputed that John is the father of Denise's son.

4 John died on 22 ^nd March 2017 intestate. His estate includes a motor vehicle valued at EC$15,000.00 and a property valued at EC$200,000.00.

The Court below

5 On 11 ^th August 2020, Rosanna applied for letters of administration of the estate of John. In her oath of administration, Rosanna stated that she was the lawful widow and personal representative of the deceased, John, and that at the time of his death, there was no minority interest not settled. She exhibited her marriage certificate to John.

6 Denise filed a caveat opposing the grant of letters of administration. In her affidavit, she stated that she was the widow of John. She was formerly resident in Montserrat, but now resides in the United Kingdom (“the UK”). She was married to John on 30 ^th November 1994 at the high court registry in Montserrat. It is stated on the marriage certificate issued by the registrar that John was divorced at the time of the marriage. Denise further states that she was not aware of John's previous marriage to Rosanna. She only became aware of the marriage as a result of the application for the grant of letters of administration and the marriage certificate of John and Rosanna which was exhibited. She contended further that her marriage certificate issued by the registrar of the high court showed that John was divorced at the time of their marriage. It was only in July 2020 she became aware of a certificate of no divorce issued by the registrar of the high court (a different person from the registrar who performed her marriage) indicating that John was not divorced from Rosanna and would therefore have still been married to Rosanna at the time of her marriage to John.

7 Rosanna filed an affidavit in response in which she deposed that she was married to John on 15 ^th November 1975 after banns of marriage were published. She was never divorced from John. She was never served with a petition to be divorced from John and there had never been any divorce proceedings in any court in respect of her marriage to John. As a result of the volcanic crisis in Montserrat, she relocated to the UK while John remained in Montserrat. John subsequently took ill and went to the UK for medical treatment. He was admitted to a hospital in Birmingham. She and her daughter visited him on occasions at the hospital. While in the UK, John transferred all his banking transactions to herself and their daughter. He handed over the deeds to his property in Montserrat to Grenette. After his death, they arranged his funeral. Grenette bore all the funeral expenses, while she paid tribute to John in song at the funeral. At no time during the hospitalisation of John did Denise, who lived in London, visit him, nor did she attend the funeral or contribute to the funeral expenses. Rosanna was not aware that John had married Denise. It was only after the death of John that she learnt that Denise was claiming to be married to him.

8 In her affidavit in reply, Denise deposed that it was with John's agreement that she and their son moved to the UK...