Abstract
There is no assumption of marriage in South African law in consequence of cohabitation regardless of the duration of the relationship. Our law does not give automatic rights to partners in a cohabitation relationship. If one of the parties dies without leaving a will for instance, the domestic partner is not legally entitled to inherit or to claim maintenance from the deceased’s estate. An aggrieved party would have to go to court to show that the parties were partners in a “universal partnership” and that the one party owes something to the other. The question that often arises is whether any mechanisms exist for the division of assets accumulated in a cohabitation situation on separation of the parties. If parties have cohabited and they can prove that a tacit universal partnership exists between them, all property of such apartnership is deemed to be jointly owned by the parties and debts are the joint liability of the parties. The issue as to whether a tacit universal partnership extends beyond commercial undertakings and whether the contribution by each party must be confined to profit-making has been the subject of much debate by our courts but has finally been decided by the court in the cases of Ponelat v Schrepfer (2012 (1) SA 206 (SCA)) and Butters v Mncora (181/2011) [2012] ZASCA 29 (28 March 2012)).
Highlights
There is no assumption of marriage in South African law in consequence of cohabitation regardless of the duration of the relationship
If parties have cohabited and they can prove that a tacit universal partnership exists between them, all property of such a partnership is deemed to be jointly owned by the parties and debts are the joint liability of the parties
The issue as to whether a tacit universal partnership extends beyond commercial undertakings and whether the contribution by each party must be confined to profit-making has been the subject of much debate by our courts but has been decided by the court in the cases of Ponelat v Schrepfer (2012 (1) SA 206 (SCA)) and Butters v Mncora (181/2011) [2012] ZASCA 29 (28 March 2012))
Summary
There is no assumption of marriage in South African law in consequence of cohabitation regardless of the duration of the relationship. The majority of the court was prepared to accept that there was prima facie discrimination based on marital status He found that marriage is an important institution: an “intentionally recognised social institution” (par [53]) that afforded benefits to married people to which unmarried people would not be entitled. Two years later the Constitutional Court in Gory v Kolver NO (2007 (4) SA 97 (CC)) somewhat altered their position by finding that section 1(1) of the Intestate Succession Act 81 of 1987 may be unconstitutional to the extent that it only provided for spouses to a marriage to inherit intestate It found that this statute must be read to include, after the definition of the word “spouse”, “partner” in a permanent same-sex life partnership in which the parties have undertaken reciprocal duties of support.
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
