Aantekening : Die ekstrinsiekee-getuienis-reël : universele vennootskappe en die huwelik buite gemeenskap van goed met uitsluiting van wins en verlies en aanwas

Abstract

This note investigates the validity of commercial universal and complete universal partnerships with reference to marriages out of community of property and without profit and loss and accrual. The validity is examined with reference to three recent cases. The matter is not new and relates to the informal amendment of the matrimonial property system. The research reveals that a distinction should be made between partnership agreements concluded before the solemnisation of the marriage on the one hand and between partnership agreements reached after conclusion of the marriage on the other hand. With reference to the first-mentioned partnership agreements a distinction is made between agreements concluded before the antenuptial contract where the parol evidence rule applies and agreements concluded after the antenuptial contract, where the parol evidence rule does not apply. The first-mentioned partnership agreement is void if it changes the written antenuptial agreement because the parol evidence rule prohibits the validity of extrinsic evidence. However, when the partnership agreement is concluded after the written antenuptial contract, the conclusion is reached that the partnership agreement (whether complete or commercial) is valid and enforceable between the parties but not against third parties. A complete universal partnership agreement concluded after the marriage ceremony is always invalid, because its effect changes the matrimonial property system informally. A commercial universal partnership agreement is enforceable and valid unless the written antenuptial contract prohibits it.