A man who has been by the side of his partner for 26 years, without them ever being married, turned to the Gauteng High Court, Johannesburg for an order declaring that he and his partner, who had meanwhile died, were in an universal partnership.
The man, only identified in the judgment as LL, was forced to obtain legal clarity regarding his relationship status to the woman only identified as EH. This was because the woman’s daughter, who is the executor of her estate, refused to acknowledge that he is entitled to half of her assets.
The court concluded that over the years, LL and the deceased had built up financial assets together, which included several properties. LL also stood by his partner up until her death.
A high court judge earlier said there were so many disputes of facts, that the court could not make a ruling on the matter simply based on court papers.
But LL now successfully took the matter on appeal.
The court consisting of three judges found that the partnership commenced on the death of EH’s husband, and continued until EH’s death twenty-six years later. It was one in which each party shared all of their assets with the other, akin to a marriage in community of property.
Judge Stuart Wilson, who wrote the judgment, explained that an universal partnership is an agreement between individuals to share their property and their gains and losses. The partnership need not be formed for a commercial purpose. It regularly comes into existence, whether expressly or tacitly, between unmarried cohabitees, although cohabitation is not essential.
The requirements for the existence of a universal partnership are the same as those for partnership in general. Where a tacit universal partnership is alleged, a court will confirm its existence if the conduct of the parties is such that it is more probable than not that such a partnership agreement had been reached between them.
“A partnership exists if each of the parties brings something into the partnership or binds themselves to bring something into it, whether it be money, or labour, or skill”; if the agreement is struck for “the joint benefit of both parties”; and if the object of the partnership is material gain,” the judge explained.
LL, an architect, told the court he met EH in June 1970. EH was already married at that time, but LL said that it was a marriage in name only. EH continued to live with her husband, but according to LL, EH did not share a bed with her husband.
LL and EH fell in love and their relationship co-existed with EH’s marriage until her husband’s death in 1990.
In 1982, LL sold his home in Auckland Park and put the proceeds of that sale towards purchasing a house in Westcliff, which was registered in EH’s name. They intended to eventually share the home, which they did after her husband’s death.
In 1993, EH and LL purchased LL’s parents’ home in in Schulensee, Germany. Between 1990 and 2016, EH’s health gradually declined. She eventually became so ill that she required extensive care, which LL said he provided. He also funded at least some of her medical expenses.
As EH’s health continued to decline, LL foresaw the need to ensure that he would have some formal claim to the properties that EH shared with him. He prepared wills for both him and EH to sign, each bequeathing their whole estate to the other.
LL signed a will leaving his estate to EH, but EH never signed a will leaving her estate to him. LL said that this is because she did not want to face her mortality.
When EH died at the age of 76, her daughter was appointed as the executor of EH’s estate. According to LL, the daughter promised, in a fairly vague way, to settle half of EH’s estate on him, but never followed through.
Judge Wilson said it is clear that there was an universal partnership between LL and his partner and thus each owned half of the other's estate.
He declared that LL is entitled to inherit half of the deceased’s estate.
Pretoria News