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 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:
In Paixao v Road Accident Fund2 Cachalia
JA held that:
“Proving the existence of a life
partnership entails more than showing that the parties cohabited and jointly
contributed to the upkeep of the common home. It entails, in my view,
demonstrating that the partnership was akin to and had similar characteristics
– particularly a reciprocal duty of support - to a marriage.”
[17] The requirements for the
existence of a universal partnership are summarised in the matter of Pezutto
v Dreyer and others 3 which was also confirmed in Butters v Mncora4 at
par 17:
“Our courts have
accepted Pothier’s formulation of such essentiala as a correct statement of the
law. (Joubert v Tarry & Co 1915 TPD 277 at 280 -1; Bester v Van Niekerk
1960 (2) SA 779 (A) at 783H – 784A; Purdon v Muller 1961 (2) SA 211 (A) at 218B
– D). The three essentials are (1) that each of the partners bring something
into the partnership whether it be money, labour or skills; (2) that the
business should be carried on for the joint benefit of the parties and (3) that
the object should be to make a profit. (Pothier: A Treatise on the contract of
Partnership (Tudor’s translation) A fourth requirement mentioned by Pothier is
that the contract should be a legitimate one.”
In Butters the history of the
different types of partnerships as well as their applicability to cohabitants
was discussed. It was held at par [18] 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. “6 (emphasis provided).
In the majority decision of Butters,
it was held at par [19] that:
“Once it is accepted that a
partnership enterprise may extend beyond commercial undertakings, logic
dictates, in my view, that the contribution of both parties need not be
confined to a profit-making entity….It can be accepted that the plaintiff’s
contribution to the commercial undertaking conducted by the defendant was
insignificant. Yet she spent all her time, effort and energy in promoting the
interests of both parties in their communal enterprise by maintaining their
common home and raising their children. On the premise that the partnership
enterprise between them could notionally include both the commercial
undertaking and the non-profit making part of their family life, for which the
plaintiff took responsibility, her contribution to that notional partnership
enterprise can hardly be denied.”
The Requirements for
a tacit agreement
In the minority judgment in Butters,
penned by Heher JA with whom Cachalia JA concurred, he summarised the approach
to establishing whether a tacit agreement exists, as follows:
‘[34] This appeal is about an alleged
tacit agreement. As in all such cases the court searches the evidence for
manifestations of conduct by the parties that are unequivocally consistent with
consensus on the issue that is the crux of the agreement and, per contram, any
indication which cannot be reconciled with it. At the end of the exercise, if
the party placing reliance on such an agreement is to succeed, the court must
be satisfied, on a conspectus of all the evidence, that it is more probable
than not that the parties were in agreement, and that a contract between them
came into being in consequence of their agreement. Despite the different
formulations of the onus that exist: see the discussion in Joel Melamed and
Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) at 164G-165G; Christie’s
The Law of Contract in South Africa, 6ed 88-89, this is the essence of the
matter.’
ANALYSIS OF THE EVIDENCE
This Court is to approach the factual
disputes which exist between the evidence adduced on behalf of the Plaintiff7,
and the evidence presented on behalf of the Defendant, by applying the
principles enunciated in the decision of Stellenbosch Farmers Winery Group
Ltd and Another v Martell et Cie and Others9, Nienaber JA held as follows:
"To come to a
conclusion on the disputed issues a court must make findings on (a) the
credibility of the various factual witnesses; (b) their reliability; and (c)
the probabilities. As to (a), the court's finding on the credibility of a
particular witness will depend on its impression about the veracity of the
witness. That in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness' candour and
demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
