A NOTE ON “TACIT UNIVERSAL PARTNERSHIPS”: CLARITY AT LAST: EX-PARTNER CAN GET SLICE OF THE PIE

Abstract

There is no assumption of marriage in South African law in consequence of cohabitation regardless of the duration of the relationship. Our law does not give automatic rights to partners in a cohabitation relationship. If one of the parties dies without leaving a will for instance, the domestic partner is not legally entitled to inherit or to claim maintenance from the deceased’s estate. An aggrieved party would have to go to court to show that the parties were partners in a “universal partnership” and that the one party owes something to the other. The question that often arises is whether any mechanisms exist for the division of assets accumulated in a cohabitation situation on separation of the parties. If parties have cohabited and they can prove that a tacit universal partnership exists between them, all property of such a
partnership is deemed to be jointly owned by the parties and debts are the joint liability of the parties. The issue as to whether a tacit universal partnership extends beyond commercial undertakings and whether the contribution by each party must be confined to profit-making has been the subject of much debate by our courts but has finally been decided by the court in the cases of Ponelat v Schrepfer (2012 (1) SA 206 (SCA)) and Butters v Mncora (181/2011) [2012] ZASCA 29 (28 March 2012)).