Developing the common law of breach of promise and universal partnerships: Rights to property sharing for all cohabitants?
Authors Elsje Bonthuys
Affiliations: School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 76 – 99
In recent years the Supreme Court of Appeal has embarked on a rapid and far-reaching set of developments of the common law relating to engagements and universal partnerships between cohabitants, culminating in Butters v Mncora. This series of cases is groundbreaking in four respects: first, in holding that engaged and cohabiting partners can enter into universal partnerships encompassing both commercial and non-commercial undertakings; secondly, that the partnership agreement does not have to be express, but can be inferred from the partners’ conduct during the relationship; thirdly, that the test for the existence of such a partnership is ‘whether it is more probable than not that a tacit agreement had been reached’, and, finally, that non-financial contributions to the partnership, such as childcare and homemaking, should be taken into account. These cases have created an avenue by which cohabitants can circumvent the narrow approach adopted by the Constitutional Court in Volks v Robinson NO to lay claim to some of the financial assets which were accumulated during the existence of the partnership. This article traces the development of the law, and evaluates the law relating to engagements and universal partnerships respectively. It argues that the extension of property rights to cohabitants is accompanied by a simultaneous restriction on the rights traditionally available for breach of promise. These two areas of law remain marked by contradictory assertions that, on the one hand, breach of promise should not be treated like a commercial contract while, on the other hand, contractual principles are applied to limit the claims which had hitherto been available for breach of promise. Nevertheless, both in the case of breach of promise and universal partnerships the principles of contract law are not correctly applied, but instead are slightly altered to the detriment of claims by female cohabitants.