The Supreme Court of Appeal in a recent judgment once again recognised cohabiting relationships, where couples are not married, and noted that the partnership does not need to be formal, such as in the case of marriage, before one partner can share in the joint estate accumulated during their cohabitation.

The high court earlier found that there was a universal partnership between the man, only identified as P, and his partner S, and that as S contributed over the duration of them living together towards a joint estate, she was entitled to her fair share.

Unhappy with this finding, P turned to the SCA as he contested the fact that there was a universal partnership.

The couple lived together for 16 years before things went sour. A universal partnership refers to a legal concept in South African law that may be formed between unmarried life partners. To prove a life universal partnership, partners must show each contributed to a common enterprise for their joint benefit.

The legal mechanism allows unmarried partners, after the dissolution of their relationship, to claim a share of the assets accumulated during the partnership, the SCA said. In examining the essentials for establishing a universal partnership, the court highlighted that each party must contribute something, whether it is money, labour or skills. The enterprise must be carried on for the joint benefit of both partners, for material gain.

The woman told the court how, at the start of their romantic relationship, she sold her personal belongings and moved in with P. Over the years, she played a pivotal role in assisting him in his business ventures. They pooled their resources and shared expenses. Although they were engaged, they never got married.

The SCA said in this case evidence suggests that from the nature of the discussions between the parties prior to their cohabiting and their intent during their 16 years together, they had the intention to form a universal partnership.

The plaintiff (S) came into the relationship on the basis that the defendant (P) would give her what was his and she would give him what was hers. “There was the promise of security. And during their 16 years together, the parties did pool their assets and resources,” the SCA noted.

It added that the plaintiff contributed all she had – financially and physically – which included the proceeds of the sale of her assets, her salary, time, energy, labour, skills and expertise, in helping to build their estate.

The defendant contributed his business, financed the various properties and provided financial security. The pooling of their resources, their joint investment of R1.2 million in the form of an Old Mutual policy, and the plaintiff’s entitlement to the proceeds thereof in the event of the defendant’s death, all pointed to a universal partnership, the SCA said.

It also pointed out that the parties worked together to secure their retirement and increase their income.

The SCA said the essentials of a contract of universal partnership have been established. Each party brought something into the partnership, the partnership was carried on for their joint benefit and the object was to make a profit.

The universal partnership came into being in March 1989 and was terminated in April 2005, the court found in turning down the man’s appeal.

The SCA agreed with the high court that the woman had a 35% and the man a 65% share in the partnership.

zelda.venter@inl.co.za

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