Abstract:
The universal partnership is a unique common-law creature that offers
valuable benefits during its subsistence and especially upon its dissolution.
This article is concerned with the application of the dissolution of universal
partnership as an interchangeable legal remedy, by providing litigants with
contractual remedies. Foreign jurisdictions such as Botswana, Namibia and
Zimbabwe have used the consequences of the dissolution of the universal
partnership in various cases from putative marriages to customary law
cases in order to do justice between the parties. These foreign courts have
applied the consequences of dissolution in a reformative and liberal
manner, without being side-tracked by legislative departures and debates.
Although much debate surrounds the interchangeable approaches followed
by the courts when using this contract in cases of putative marriages,
unrecognised religious marriages, cohabitation and customary law, it is
nonetheless applied as a remedial measure. The intended “single marriage
statute” and relevance thereof on the universal partnership is also explored
in this article. The difference between intimate and commercial universal
partnerships as well as the drawbacks of using the universal partnership in
the context of cohabitation is shortly discussed. It is suggested that our
courts more willingly provide contract-based relief to litigating parties by
following a liberal application the universal partnership. Unmarried
cohabiting persons are often left without legislative recourse and remedies
as the intended “single marriage statute” and the Domestic Partnership Bill
of 2008 has not yet been enacted into law. For this reason a reformative,
progressive and liberal application of the universal partnership, as
observed in foreign law, may certainly allow our courts to protect these
vulnerable parties.
