Rights of co­hab­i­tants ul­ti­mately recog­nised

Judg­ment is a size­able step for­ward for women’s rights in the coun­try

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - JOHN NIELSEN

IN A re­cent Supreme Court of Ap­peal (SCA) judg­ment, the court has opened the door for un­mar­ried cou­ples to be able to claim from their part­ners in the event of a break-up. The SCA’s de­ci­sion in But­ters v Mn­cora has laid the foun­da­tion for claims based on a tacit univer­sal part­ner­ship.

This is a huge step for women’s rights in SA and will have the ef­fect of em­pow­er­ing women.

Many part­ners in a co­hab­it­ing re­la­tion­ship, which is not for­mally recog­nised or reg­u­lated, have been left des­ti­tute when their part­ners, who have ac­cu­mu­lated as­sets throughout the re­la­tion­ship, upped and left. This es­pe­cially ap­plies to women, as they of­ten tend to the fam­ily home while their part­ners pur­sue more com­mer­cial en­deav­ours. Pre­vi­ously, the men in this type of co­hab­it­ing re­la­tion­ship have been able to amass es­tates and walk away with all the fi­nan­cial re­wards at the end of the re­la­tion­ship.

The SCA has now of­fered pro­tec­tion to those par­ties who would have pre­vi­ously been left with­out a le­gal rem­edy, by of­fer­ing them pro­tec­tion us­ing a pri­vate law rem­edy, the recog­ni­tion of a tacit univer­sal part­ner­ship.

Pre­vi­ously our law has not granted any le­gal rights or pro­tec­tion to per­sons co­hab­it­ing for ex­tended lengths of time. In the case of Volks NO V Robin­son in 2005 the Cen­tre for Ap­plied Le­gal Stud­ies, ad­mit­ted as friend of the court, drew the court’s at­ten­tion to the vul­ner­a­bil­ity of women in co­hab­i­ta­tion re­la­tion­ships. While Volks dealt with “life part­ner­ships” be­tween same sex cou­ples, the judg­ment in But­ters v Mn­cora may ex­tend to all re­la­tion­ships. This will have the ef­fect of em­pow­er­ing vul­ner­a­ble women who co­habit with their part­ners.

Our courts have con­tin­ued to have ac­cepted Poth­ier’s for­mu­la­tion for the re­quire­ments of a univer­sal part­ner­ship. The three es­sen­tial el­e­ments of a univer­sal part­ner­ship are:

• that both par­ties bring some­thing into the part­ner­ship or bind them­selves to it;

• that the part­ner­ship is car­ried on for the par­ties’ joint ben­e­fit; and

• that the ob­ject of the part­ner­ship is to make a profit.

The re­quire­ments of univer­sal part­ner­ship seem to speak of a purely com­mer­cial undertaking. This is sup­ported by case law such as Isaacs v Isaacs in 1949. The re­cent judg­ment in But­ters v Mn­cora has made it clear that univer­sal part­ner­ships of all prop­erty ex­tend be­yond com­mer­cial un­der­tak­ings and still form part of our law, as they were un­der Ro­man Dutch Law. The judg­ment makes it clear that a part­ner­ship of all prop­erty does not re­quire an ex­press agree­ment and can come into ex­is­tence by tacit agree­ment.

When ap­ply­ing Poth­ier’s first el­e­ment, the SCA ac­cepted that a univer­sal part­ner­ship can ex­tend be­yond purely com­mer­cial un­der­tak­ings and there­fore that the con­tri­bu­tions of the par­ties need not match each other from a com­mer­cial per­spec­tive. In this case But­ters spent all his time es­tab­lish­ing and grow­ing a suc­cess­ful com­mer­cial ven­ture, reg­is­tered solely in his name. The SCA held that the courts can now con­sider the other part­ner’s con­tri­bu­tion to­wards their com­mon house­hold and fam­ily life. Thus the part­ner­ship en­ter­prise en­tered into be­tween the co­hab­itees in­cluded the com­mer­cial en­ter­prise of one part­ner, their com­mon home and their fam­ily life.

In re­gard to Poth­ier’s sec­ond el­e­ment re­quir­ing part­ner­ship be car­ried on for the joint ben­e­fit of both par­ties, the court ruled that in cir­cum­stances where a long stand­ing co­hab­i­tat­ing re­la­tion­ship ex­isted, one part­ner was en­ti­tled to be­lieve that she “was shar­ing ev­ery­thing”. Thus the court recog­nised that one part­ner’s non­fi­nan­cial con­tri­bu­tion to­wards their joint fam­ily life was just as valu­able, if not more so, than a neg­li­gi­ble mone­tary con­tri­bu­tion.

The court men­tioned that it was re­lieved that it no longer had to look at univer­sal part­ner­ships strictly in a com­mer­cial sense and can now em­brace the idea of a univer­sal part­ner­ship in­clud­ing all prop­erty in ac­cor­dance with Ro­man Dutch Law prin­ci­ples.

Both the par­ties and the court ac­cepted that the “all em­brac­ing ven­ture pur­sued by the par­ties” was aimed at a profit, sat­is­fy­ing Poth­ier’s third el­e­ment, and a profit which the courts be­lieved that the part­ners had tac­itly agreed to share, act­ing in good faith.

This judg­ment is an ad­vance­ment of women’s rights and any other vul­ner­a­ble per­sons in a co­hab­it­ing re­la­tion­ship. The SCA has recog­nised that not all re­la­tion­ships are for­malised through mar­riage.



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