If you have lived with your partner and your relationship is over, we can advise you on the prospects of asserting a claim against your partner on the basis of a universal partnership. Click here to view /download the case PDF In South African law, there is no common law marriage, regardless of the length of life of a couple. Their cohabitation does not create automatic legal rights and obligations between them. This is a frequent misunderstanding. A widespread definition describes “domestic partners” as “two adults who share an emotional, physical and financial relationship like that of a married couple, but choose either not to marry or not to marry legally. They share the reciprocal obligation to support the needs of life. Under the law, concubbinate couples do not have the same automatic rights as married couples. If the parties cohabit, but do not enter into any form of agreement that governs their respective legal rights and obligations, a party who feels that he is entitled to something from the other party (who does not agree) must, after a certain price, be sued to prove that claim. To do this, the party must prove that it was in a “universal partnership”, so that one party is entitled to certain property and property of the other party at the time of separation. The conditions for a universal partnership were extensively explained in Le Roux v Jakovljevic (14-05429) 2019 ZAGPJHC 322 (5 September 2019). The defendant disputed the existence of a partnership or otherwise. Having regard to all the facts and circumstances of this case, the Tribunal concluded that it was more likely that a tacit agreement [universal partnership] had been concluded.
Their partnership business included both business and their family life. The applicant`s impression of the substance of her relationship was confirmed by the conduct of the parties. “If a court finds it impossible, unenforceable or inadmissible to physically split a particular asset between the parties and to distribute the proceeds between them, it may value that asset with due regard to the particular circumstances relating to its value at the time of termination of the partnership. The court can then award the estate to one partner and order him to pay his share to the other. This was the Tribunal`s analysis: in the Case of Paixao v Road Accident Fund2, Cachalia JA stated: “Proof of the existence of a life partnership means more than proof that the parties lived together and contributed together to the maintenance of the common home. I think this means demonstrating that the marriage resembled a marriage and had similar characteristics, in particular a mutual maintenance obligation.  The conditions for the existence of a universal partnership are summarized in Pezutto v. Dreyer et al.3, which was also confirmed in Butters v Mncora4 at paragraph 17: “Our courts have accepted Pothier`s formulation as correct legal testimony. (Joubert vs. Tarry & Co 1915 TPD 277 to 280 -1; Best v Van Niekerk 1960 (2) SA 779 (A) at 783H – 784A; Purdon vs Muller 1961 (2) SA 211 (A) to 218B – D). The three main things are (1) that each of the partners brings something into the partnership, whether it`s money, work or skills; (2) that the activity must be carried out in the common interest of the parties and (3) that the objective should be to make a profit. (Pothier: A treatise on the partnership contract (translation of Tudor) A fourth requirement mentioned by Pothier is that the treaty be legitimate. In Butters, we discussed the history of different types of partnerships and their applicability to concubnats.