What legislation governs unmarried partners?
Generally, cohabitation does not give you the protection of South African family law. If you are not married to your partner: you have no claim to your partner's assets, and you have no claim to maintenance from him or her.
Unlike some countries, we do not have the concept of a "common law" spouse, and nor do we have legislation that regulates what we would call "domestic partnerships". What we do have is a draft Domestic Partnership Bill, that was gazetted in January 2008, and which is not yet law.
However, there have been recent developments in case law in terms of which the South African Courts have recognised that a universal partnership may exist between parties.
Requirements of a universal partnership
In order to establish a universal partnership, certain requirements must be satisfied, and these requirements are much the same as those for an ordinary business partnership:
- both parties must contribute to the enterprise, whether it be in terms of labour or skill;
- the partnership must operate for the joint benefit of the parties;and
- the aim of the partnership must be to make a profit. However, the parties do not have to have a joint business venture per se. The objective of the accumulation of an appreciating joint estate, has been held to be sufficient proof that the object of the parties is to make a profit.
- Universal partnerships will differ from couple to couple and, importantly, not all contributions to the partnership have to be financial in nature, and there does not necessarily need to be a formal written agreement between them.
Termination of the partnership
At the heart of a universal partnership, is the agreement between the parties (tacit or otherwise) that they both agree to contribute toward an asset or assets for their joint benefit, and that, should the partnership later dissolve, the assets should be distributed between the parties
- in accordance with the agreement between them and/or
- in a manner that reflects their respective contributions to the partnership.
- However, there is a risk that, in the absence of an agreement, and on dissolution of the relationship:
- all property owned by the parties could be taken into account by a court
- if the parties' respective contributions are equal, or if it is impossible to say that one has contributed more than the other, the parties may share equally in all their assets.
Advice for unmarried partners:
If you are in a long term relationship and you have chosen not to enter into a civil marriage or formally regulate your relationship, your assets are potentially vulnerable to a claim in terms of a universal partnership, should your partner satisfy the necessary requirements.