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Domestic partnerships and legal aspects to consider

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There are a multitude of opposite-sex and same-sex couples in our country who made a choice to stay together and whose lives are fully integrated in all aspects, but who are not married by law or by common law. These type of partnerships are referred to as ‘domestic partnerships.’ Unfortunately, in South Africa, domestic partners do not currently enjoy the same kind of legal protection than those who are in formal marriages or common-law marriages.

Why don’t our laws provide for domestic partnerships?

Recognising the need to provide legal protection for domestic partnerships, the Minister of Home Affairs at the time, issued a draft Domestic Partnership Bill for public comments in 2008. Ultimately, the aim of this bill is to provide for the legal recognition of domestic partnerships; the enforcement of the legal consequences of domestic partnerships; and any other legal matters related to domestic partnerships. You can click here to read the draft bill. However, government has been dragging its feet on the matter and as a result, this law has still not been promulgated (made official) after all these years.

But what if my partner and I have been living together for years?

Many people are under the wrong impression about cohabitation. South African laws do not recognise a “common law marriage,” and you are not “automatically deemed as married” when you have cohabited for several years. In the case of Butters v Mncora 181/2011, the Supreme Court of Appeal (SCA), took the rule of law regarding cohabitation into consideration, but found that cohabitation does not give rise to special legal consequences, even though the couple in question lived together as husband and wife, for almost twenty years. You can click here to read the media summary of this case that was published on the website of the Department of Justice. Should partners split up, or one of them dies, the other will only have a basis for a claim on his or her former partner’s assets, if it can be proven that a tacit universal partnership existed.

How do I prove that a tacit universal partnership exists between my partner and myself?

Over the years, our courts have recognised and accepted the essential elements of a partnership as formulated by Pothier (RJ Pothier: A Treatise on the Law of Partnership (Tudor’s Translation 1.3.8.) which is mainly based on commercial law principles.

According to this formulation, the essential elements of a partnership are as follows:

  1. Each party brings something into the partnership or bind themselves to bring something into it, whether it be money, labour or skill;
  2. The partnership business should be carried out for the joint benefit of both parties; and
  3. The objective of said partnership business must be to make profit.

Unless the details of the above are captured contractually, you will have to rely on proving via other means that a universal partnership indeed existed. This is a task which can be quite daunting, especially when one looks at the myriad of cases of partners who walked away completely empty-handed when their partnerships ended.

To avoid this, you will (for example) need solid proof of all the following:

  1. The existence of a joint venture or commercial enterprise;
  2. The date on which this venture commenced;
  3. A consensual contract to enter into the venture;
  4. The exact terms of the partnership; and
  5. The exact assets that were acquired by the partnership.

Domestic Partnerships: Conclusion

Whilst you and your partner may be looking at each other through the rose-tinted glasses of love right now, it is in both your best interest to look at the legal implications of your relationship, realistically. Be sure to provide for and protect each other against those unforeseen future circumstances, by getting an Attorney to help you put pen to paper on the terms of your partnership.

At Faure & Faure Inc., we have a specialist division for family law, divorces and adoption and we have gained extensive experience of drafting cohabitation agreements for domestic partners over the years. Our documents are ultra-comprehensive and provide for all the key elements that must be taken into consideration, including the acquisition and division of joint financial assets, animals, movables, and items that remain the sole property of one party, to name but a few. For any further information or assistance, you can contact Marelize Meintjes, a Director at Faure & Faure Inc. on 021 871 1200 or email contact@faurefaure.co.za.

Article by Marelize Meintjes. Click here to read more article written by Marelize.
Marelize Meintjes | Director | Faure & Faure Inc Lloyd Fortuin Attorneys, Paarl, Cape Town. Family Law, Property Law + Commercial Law, Family Mediator

Comments adapted from an article provided by LawDotNews ©.

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