Exploring Universal Partnerships and Putative Marriages as Tools for Awarding Partnership Property in Contemporary Family Law

Elsje Bonthuys

doi:10.17159/1727-3781/2016/v19i0a1192

Abstract

Following upon the Supreme Court of Appeal’s judgment in Butters v Mncora, which broadened the criteria and consequences of universal partnerships in cohabitation relationships, this article investigates the potential of universal partnerships and putative marriages to allocate rights to share in partnership property in other intimate relationships. It traverses several instances in which marriages are not recognised - bigamous marriages, Muslim and Hindu religious marriages and invalid customary marriages – examining whether the wives in these marriages could use universal partnerships and putative marriages to claim a share in property. It then considers the use of universal partnerships to obtain a share of property in civil marriages out of community of property. It concludes by pointing out several issues which are in need of clarification and where the common law should be developed to give effect to fundamental constitutional rights. 

Highlights

In a 2015 article[1] I examined a series of cases culminating in Butters v Mncora,[2] which progressively eroded the sui generis common law remedies for breach of promise, while simultaneously extending universal partnerships to cohabiting couples who were engaged to be married
Following upon the Supreme Court of Appeal's judgment in Butters v Mncora 2012 4 SA 1 (SCA), which broadened the criteria and consequences of universal partnerships in cohabitation relationships, this article investigates the potential of universal partnerships and putative marriages to allocate rights to share in partnership property in other intimate relationships
It traverses several instances in which marriages are not recognised - bigamous marriages, Muslim and Hindu religious marriages and invalid customary marriages – examining whether the wives in these marriages could use universal partnerships and putative marriages to claim a share in property

Summary

Introduction

In a 2015 article[1] I examined a series of cases culminating in Butters v Mncora,[2] which progressively eroded the sui generis common law remedies for breach of promise, while simultaneously extending universal partnerships to cohabiting couples who were engaged to be married In this way the courts awarded rights to share in partnership property[3] to cohabitants. The latter tends to be associated with particular business enterprises and would presumably exclude non-financial contributions and gains Both forms of universal partnerships have historically been used to supplement the common law in certain established areas – where there was a defective marriage ceremony, as a mechanism to distribute property between spouses in putative marriages, and to provide some property sharing in Hindu and Muslim religious marriages. In the Butters case the Supreme Court of Appeal held that, given the general acceptance of Pothier's criteria and their application to intimate relationships, it was unnecessary to add Felicius-Boxelius' three additional requirements of cohabitation, freedom of accounting and sharing of profits.[19]

Universal partnerships and putative marriages for the inadequately married

Universal partnerships and putative marriages for the simultaneously married

Universal partnerships for the unwisely married

Conclusion

Literature