If cohabitees have no written agreement in place they will each walk out of the relationship at dissolution thereof with the assets they each brought into the relationship or purchased during the course of the relationship.
Our law does however allow parties who were never legally married to share in the assets of each other at the time of dissolution of the relationship if a so-called “universal partnership” can be proven. One of the leading cases dealing with universal partnerships is that of Pezzutto v Dreyer and Others.
According to the Pezzutto case, a universal partnership will exist if the following are present:
Each of the partners bring something into the partnership;
The business is carried on for the joint benefits of the parties;
The object of the partnership should be to make a profit;
The contract should be a legitimate one.
In a 2012 case, that of Ponelat v Schrepfer the parties lived together for many years and were involved in activities for their joint benefit. The court confirmed the principles as set out in the Pezzutto case.
The court found in the Ponelat case that there was a universal partnership. All of the requirements as set out above in the Pezzutto case were present to prove a universal partnership. 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 Domestic Partnership Bill (36 of 2008) is still in draft form. In terms of this Bill there is no community of property between domestic partners but they can register a domestic partnership agreement. This would have details of contributions made to the joint property.
I get many queries in my practice from people who explain that they were never married, that there has now been a split-up and inquire as to what their rights are. The common question is “Does the concept of a common-law husband and wife exist in South Africa?”.
The answer to that question quite simply is no. If there was no marriage or no written agreement there is no such thing usually in sharing in the assets.
If for example you own a house and have a boyfriend or girlfriend living in the house, at dissolution that person will have no claim to the equity in the house, unless a universal partnership can be proven. That person may however be able to enforce his or her rights as a tenant however.
The universal partnership is a useful mechanism created by the courts to allow a cohabitee to share in assets at dissolution of the relationship. It comes to the rescue of a partner left with nothing at the dissolution of the relationship.
