Family law
  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Vaccinating Children Covid-19
    • Suspending Parental Rights
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Amended Bill
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities

Universal Partnerships and Divorce


Universal Partnerships Maurice Phillips Wisenberg
​An antenuptial contract (ANC) or means that that you are married out of community of property. The most likely reason why people decide to marry with this marital regime is to shield their assets and financial position before and also during the course of the marriage.
 
Protection is provided to a spouse against attachment from creditors of the other spouse, and both spouses keep their uninhibited right to contract with third parties without having the consent of the other spouse.
 
When you marry out of community of property, there are two options to give consideration to regarding your ANC.
 
Will you incorporate the accrual system in my ANC, or not?
 
Marriages out of community of property with no accrual indicates that the property held by a person prior to the marriage, as well as all property amassed during, belongs only to that person. This also consists of liabilities such as debt.
 
Marrying out of community of property with accrual implies that both spouses attain a fair share of the estate if the marriage is over. The separate estates are assessed prior to marriage and upon divorce, the difference between the nett increases in the respective estates during the course of of the marriage is then split equally between the two spouses.
 
It is essential to note that in terms of the Matrimonial Property Act, 88 of 1984, should you not specifically exclude the accrual system in your ANC, then by default the accrual system is automatically incorporated and you will be married out of community of property with accrual.
 
Recent Court Cases
 
In several recent cases, our courts had to adjudicate  the grounds that allegations of a universal partnership agreement (the essence of which is profit sharing) would contradict the terms of an ANC (excluding community of profit and loss) conversely would constitute an attempt to amend the parties’ antenuptial contract, which is legally untenable (JW v CW 2012 (2) SA 529 (NCK), AL v CE (GSJ) (unreported case no 09/25924, 25-10-2012) (Kathree-Setiloane J) and RD v TD 2014 (4) SA 200 (GP)).
 
In the case of RD v TD the parties concluded a partnership agreement more than two years after they were married out of community of property. The agreement applied to a commercial fish farm enterprise. The court determined that the partnership, which was envisaged, established a separate legal entity from the matrimonial regime applicable to the parties. The nett benefits derived from the partnership were to be divided between the parties and to accrue to their separate estates. The parties were for that reason business partners like any other two individual partners, both having his or her separate estate.
 
It is also relevant for spouses who, before marriage, already have a business venture or commercial enterprise together. In the case of the latter, it would definitely be a good idea to address these possible legal traps in the event of potential future disputes.
 
In the case of Fink v Fink and Another 1945 WLD 226 at 228) as far back as 1995, the court determined that a universal partnership existed between spouses who were married to each other out of community of property in respect of a milk-producing business.
 
In the case of Mühlmann v Mühlmann 1984 (3) SA 102 (A) the Supreme Court of Appeal found that a universal partnership in respect of certain commercial enterprises (inter alia, an electroplating business) existed between spouses who were married to each other out of community of property.
 
In Ponelat v Schrepfer 2012 (1) SA 206 (SCA) it was held that a universal partnership is present if the necessary requirements for its existence are met regardless of whether the parties are married, engaged or cohabitating.
 
The requirements for a partnership are as follows:

  • that each of the partners bring something into the partnership, whether it be money, labour or skill;
  • that the business should be carried on for the joint benefit of the parties; and
  • that the object should be to make a profit.
 
There need not be a written or oral agreement and our courts have found that a tacit agreement may also prove a universal partnership. In the case of Fink it was said: ‘If the agreement is not in writing the intention of the parties must be ascertained from their words and conduct … the mode in which they have dealt with each other, and the mode in which it has, with the knowledge of the other, dealt with other people. This can be shown by books of accounts, by testimony of clerks, agents and other persons, by letters and admissions and, in short, by any of the modes by which facts can be established.’
 
In Mühlmann it was held that the methodology as to whether a tacit agreement can be held to have been concluded was to be, ‘whether it was more probable than not that a tacit agreement had been reached’. It was also mentioned that a court must be careful to determine that the conduct from which a contract is sought to be inferred is not simply that which reflects what is ordinarily to be expected of a wife.
 
It was furthermore stated that the next facts were suggestive of a common purpose that the business was a joint one for the mutual benefit of the parties:
 
Where a wife –

  • had rendered services manifestly surpassing those ordinarily expected of a wife;
  • had not worked for a salary; and
  • contributions made by her towards the business in kind (assets, capital) however modest in size.
 
In McDonald v Young 2012 (3) SA 1 (SCA) it was held that: ‘In order to establish a tacit contract, the conduct of the parties must be such that it justifies an inference that there was consensus between them. There must be evidence of conduct which justifies an inference that the parties intended to, and did, contract on the terms alleged.’
 
In JW v CW 2012 (2) SA 529 (NCK) the Court held that a universal partnership in a marriage out of community of property excluding any form of accrual was not possible if it contradicts the terms of the ANC.
 
The question whether a post nuptial partnership is possible where parties are married out of community of property with the exclusion of the accrual system, was also considered in two other conflicting judgments:
 
An interesting and conflicting case was the case of A L Espag v C E Espag, in the South Gauteng High Court, in Johannesburg, under case no 09/25924. Here the parties were married out of community of property with the exclusion of the accrual system. Mrs. Espag claimed that a partnership came into being between the parties and sought an order appointing a liquidator to realise the whole of the partnership assets. The Plaintiff raised a special plea that the Defendant’s claims do not disclose a cause of action as the claims, and the evidence required to be tendered in support of them, will contradict the terms of the ANC concluded between the parties. The Defendant pleaded that a universal partnership agreement was entered into immediately prior to the marriage of the parties and the execution of the antenuptial contract. The court ruled that the establishment of a universal partnership, contradicts and refutes the clear purpose and terms of the ANC because it would in effect amount to a marriage in community of property. The special plea was upheld.
 
Many couples do not give consideration to the probability of divorce when they enter into a marriage regime, nevertheless, it is very important that these complicated conversations are discussed, for example, which marriage regime to enter into and the implications of each one. This is not only to guard yourself but also your future spouse in the event that the marriage breaks down or no longer ceases to subsist if one or the other spouse passes away.

Contact us

Main Menu

Cohabitation and Living Together
Engagement and the Law
Formalities of Marriage in South Africa
Same-Sex Relationships
Unmarried Parents and Children
Parental Rights and Responsibilities
Care and Contact (Custody) of Children
Divorce In South Africa
Divorce Process in South Africa
Division of Assets in Divorce
Divorce and Retirement Funds
Rule 43 and Interim Maintenance
Divorce a Missing Spouse
Adultery, Suing a Third Party
International Divorces in South African Courts
Parental Rights
Child Maintenance
Spousal Maintenance
Domestic Violence and Abuse

Family and Divorce Law Links

Family Law Links
Family Law Legislation

Family Law Matters
Court Judgements
Court Rolls

Online Services

Online DIY Divorce
Online Managed Divorce
Online Antenuptial Contracts
​

Partner Services

Online Mediation Centre
Family Law Mediation

Collaborative Divorce
Divorce Attorney Cape Town

Contact Details

BERTUS PRELLER
​MAURICE PHILLIPS WISENBERG

20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115


​
Email: familylaw@mpw.co.za
Facebook: divorceattorneys
Twitter: @bertuspreller

Family and Divorce Law Blogs

Divorce Attorney 
​Family Laws

© 2022-  All content on this website is under copyright of  LawSplash - All Rights Reserved.
Legal Notices
  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Vaccinating Children Covid-19
    • Suspending Parental Rights
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Amended Bill
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities