In South African law, there is no such thing as a common-law marriage, no matter how long a couple may live together. This is a common misunderstanding.
A widely-used definition describes “domestic partners” as “two adults who share an emotional, physical and financial relationship like that of a married couple but who either choose not to marry or cannot legally marry. They share a mutual obligation of support for the necessities of life.”
Cohabiting couples do not have the same automatic rights as married couples under the law. If parties live together but don’t conclude any form of agreement regulating their respective legal rights and obligations, on dissolution of the cohabitation, a party that feels he or she is entitled to something from the other party (who disagrees), must go to court, at some expense, to prove that entitlement. To do so, the party must prove they were in a ‘Universal Partnership’, so that one party is entitled to certain property and assets of the other party, on separation.
The requirements for a Universal Partnership were canvassed at length in Le Roux v Jakovljevic (14-05429) 2019 ZAGPJHC 322 (5 September 2019).
The Plaintiff sought a declaratory order that a universal partnership existed between the parties. The Defendant denied the existence of a partnership, universal or otherwise.
Having regard to all the facts and circumstances of this case the court concluded that it was more probable than not that a tacit agreement [universal partnership] had been reached. Their partnership enterprise included both the business and their family life. The plaintiff’s impression as to the core of their relationship was borne out by the conduct of the parties.
“Where a court finds it impossible, impracticable or inequitable to physically divide a particular asset between the parties or to cause it to be auctioned and to have the proceeds divided between them it can place a valuation on that asset with due regard to the particular circumstances concerning its value at date of dissolution of the partnership. The court may then award the assets to a partner and order him to pay the other her share”.
This was the court’s analysis:
Quoting Butters v Mncora it was held that such partnerships can extend beyond commercial undertakings and that:
‘(a) Universal partnerships of all property which extend beyond commercial undertakings were part of Roman Dutch law and still form part of our law.
(b) A universal partnership of all property does not require an express agreement. Like any other contract it can also come into existence by tacit agreement, that is, by an agreement derived from the conduct of the parties.
(c) The requirements for a universal partnership of all property, including universal partnerships between cohabitees, are the same as those formulated by Pothier for partnerships in general.
(d) Where the conduct of the parties is capable of more than one inference, the test for when a tacit universal partnership can be held to exist is whether it is more probable than not that a tacit agreement had been reached “. (emphasis provided).
Based on the presented evidence, the court found that a tacit agreement existed and that a contract between them came into being in consequence of their agreement. It valued all the assets of the man and ordered him to pay the woman the cash value of her share.