The dissolution of universal partnerships in South African law : lessons to be learnt from Botswana, Zimbabwe and Namibia

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.