There are a growing number of people, in South Africa and around the world, that live in long-term, intimate relationships that are akin to marriage without this relationship being formalised in law. This may be a conscious decision on behalf of the parties to avoid the consequences of marriage or it may be because the law does not provide recognition for their type of relationship. Often, the people living in these relationships expect that their relationship will have the same consequences as marriage, because of the substantive similarities, but currently in South Africa no legislation provides for this protection. The question then arises: how does the law protect potentially economically vulnerable members of these life-partnerships in a way that promotes fairness and equality?
What protection might be required?
Dividing communal property
One difficulty is determining how to divide communal property amassed during the course of the life partnership, especially when one party has been economically reliant on the other. In a marriage this situation is provided for in the type of matrimonial property system the couple agreed upon. For people involved in a life partnership, deciding how to divide the property, or whether to divide it at all, is more complicated.
When a marriage comes to an end, a party to the marriage can apply to court for a post-divorce maintenance order as a means of, inter alia, compensating a partner their “career sacrifice and [their] non-remunerated contribution to the family”. In a life partnership, the position in relation to an entitlement to maintenance is not as clear. A lack of protection in this regard could mean that a partner who sacrificed his career to stay at home and look after the family is left economically vulnerable at the end of his life partnership.
When a person dies without a will, their estate is administrated in terms of the laws of intestate succession. Currently in South Africa, when a party to a heterosexual life partnership dies without a will, the surviving partner is not entitled to inherit. Until there is significant legal development is this regard, it is important for heterosexual partners in a life partnership to draw up a will if they wish to ensure that their partner will inherit from them.
What protection currently exists?
At the outset, it is important to note that South African law does not recognize a so-called ‘common law marriage’ that comes in being after parties have been living together after a certain period of time. In an attempt to fill the lacuna in the law for protection for people in life partnerships the South African Law Reform Commission has produced a draft of the Domestic Partnerships Bill. This Bill aims to provide the legal protection to people living in life-partnerships. Unfortunately, the legislature has yet to consider this Bill and it has not been passed or, indeed, notably progressed since it was produced in 2006.
Partners can always conclude a formal contract regulating the ownership of their property and providing protection for the situation where one partner is financially dependent on the other. It is questionable, however, to what extent a person who is already in a vulnerable position would be able to ensure sufficient protection is contracted for.
Tacit universal partnerships
Recently, the Supreme Court of Appeal (“SCA”) has been willing to infer tacit contracts between persons living in life-partnerships which allow the court to provide some protection to these individuals. These inferences are based on a strong presumption that the parties intended to deal fairly with each other. In 2012, a landmark judgement in the SCA found that a court can infer from the conduct of the parties that they tacitly concluded a universal partnership. A universal partnership is a partnership in which “the parties agree to put in common all their property, present and future”. The court described how a universal partnership must be understood in a holistic way. It noted how a partner could validly contribute to the partnership by dedicating themselves to non-commercial aspects of the partnership, like building a home and caring for the family. This means that if one partner was the breadwinner and the other provided domestic support at home, both are entitled to share in the overall value of the partnership. This ‘tacit universal partnership’ could be used for the court to make maintenance orders for parties to a life partnership and to ensure that communal property is equitably divided between the partners.
Please contact Kobus Pieterse on firstname.lastname@example.org for further information.
Savanna Kanzler | Candidate Attorney
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)