In its last decision of 2021, SA’s Constitutional Court delivered a judgment with far-reaching consequences for the estimated 3.2-million people in SA who live together without being married.
The court’s decision will particularly affect situations where one of a couple dies and leaves no will. But it could also affect those who cannot agree on the financial consequences should their relationship end. While the highest court had previously decided the law could not help in such cases, it may now be possible to do so.
The impact of the decision was seen almost immediately: not three weeks later, the Cape Town high court based a judgment of its own on the Constitutional Court outcome.
Acting judge Constance Nziweni had to consider the case of LM and RK. They had lived together for 17 years and had three children. Their relationship had ended, and LM wanted the court to declare that she and RK had been in a "universal partnership" in which she had a half share, and that this partnership was dissolved when the relationship ended in September 2013.
RK strongly objected, saying there was no "universal partnership" between them and that whatever either of the two had brought to the relationship, or had bought during the time the relationship existed, belonged to that person when the relationship ended. He had been in the financially stronger position and with the break-up stood to gain much more than LM.
Nziweni pointed out the Constitutional Court’s "bold step" of recognising and treating "universal partnerships" in the same way as conventional, legal marriages. As a result, once a universal partnership is proven to have existed, "it becomes a legal, valid arrangement", as with a conventional marriage.
While it’s not always easy to see whether a universal partnership has existed, particularly where nothing is put down in writing, the Constitutional Court made it clear that this is generally not an insurmountable problem.
After examining the evidence, Nziweni concluded that the couple had in fact been in a universal partnership, that LM handed her earnings to RK, that they pooled their money and he managed it, and that RK’s claims that LM exaggerated her contribution to their income were invalid.
Once a universal partnership is proven to have existed, it becomes a legal, valid arrangement
Merely living together and having children is not enough to show a universal partnership has existed, and the party claiming its existence has to show evidence that a mutual agreement could be deduced from the couple’s behaviour.
In this case, both parties stressed that they did not have separate finances, though RK maintained that he contributed the most towards the household. He acknowledged that they had a "cohabitation agreement" and though he denied the existence of a universal partnership, it was clear that they ran a joint household, sharing chores and expenses. Even on RK’s version, it was clear that "finances and financial responsibilities were intrinsically and intimately interconnected for purposes of their household financial security".
All the money "came out of two pots and went into one pot, for a common goal", and their relationship resembled a partnership.
A partnership in practice
From the evidence, the judge concluded that RK had absolute control of the finances, making LM financially dependent on him, without control of her own money.
The evidence for a universal partnership was so obvious to the court that the judge commented: "I simply cannot fathom on what basis counsel … contends that [the] joint household does not create a joint estate."
LM had given the court "more than conclusive proof" of a "tacit universal partnership" over the 17 years of their relationship, and the judge ruled that she is entitled to a half share of all the assets, as she had claimed.
Just as though this had been a conventional business relationship, the court ordered that a liquidator be appointed to realise all the assets, prepare a final account and then pay both parties half of the final profits.
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