Rights of cohabitants ultimately recognised
Judgment is a sizeable step forward for women’s rights in the country
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.