Often, a duty of support exists between partners in relationships that have been recognised by South African legislation, but does this duty of support also apply in other relationships, such as a permanent universal partnership?
What is a Universal Partnership?
A universal partnership is simply a long-term relationship between two people, including same-sex partners, who decide not to get married.
The law does not automatically confer rights on partners who cohabitate. If one party dies without leaving a Will, the domestic partner is not legally entitled to inherit or to recover maintenance from the estate of the deceased.
It would be necessary for an aggrieved party to go to court to prove the two parties were partners in a “universal partnership” and that one party owes the other something.
Requirements of a universal partnership
In order to exist as a universal partnership, the following elements must be present:
(a) each of the partners must bring something into the partnership, whether it be money, labour or skill;
(b) the partnership should be carried on for the joint benefit of the parties;
(c) the object should be to make a profit;
(d) the contract should be a legitimate one.
Duty of Support
In any relationship, reciprocal support is a fundamental obligation. The court recognizes different relationships from which this obligation arises and it is, therefore, not restricted to only those relationships that are recognized by South African law.
In the absence of a legally recognized social institution (such as marriage or civil union), the duty of support cannot exist by operation of law (through legislation), but can result from a permanent universal partnership protected by the common law.
Assets of a Universal Partnership
Universal partnerships have both assets brought in at the time of formation and assets acquired during their existence.
Partners cannot alienate partnership assets or use them as personal securities without the consent of their fellow partners, and they cannot exclude a partner entirely from partnership control.
When the relationship ends, partners cannot share in the pension assets of their partners, even if they can prove a universal partnership.
This is due to the fact that the Pension Fund Act makes reference to a “divorce” and a universal partnership is not a marriage and cannot therefore be terminated by a divorce.
