There is often a duty of support between partners in relationships that are recognised by South African legislation, but can this legally protected duty of support exist in other relationships, such as a permanent universal partnership?
This article endorses the opinion that the legally protected duty of support extends to heterosexual universal life partners and that the common law should allow claims for support on the dissolution of the partnership.
Permanent universal partnership
South African courts have over the years defined a permanent universal partnership as an arrangement between parties who act like partners that both contribute to the partnership for their joint benefit/enrichment with the main aim of making a profit (see Ponelat v Schrepfer 2012 (1) SA 206 (SCA) at para 24; and Le Roux v Jakovljevic (GP) (unreported case no 14/05429, 5-9-2019) (Opperman J)).
The courts have confirmed that a written or oral agreement is not necessary to establish a permanent universal partnership, and that a tacit agreement (as determined by the intention of the parties through the context and parties’ conduct) suffices.
To amplify understanding of a permanent universal partnership, a tacit agreement is reached if it is more probable than not, given the circumstances (see Mühlmann v Mühlmann 1984 (3) SA 102 (A) at para 124C –D).
Case law on the duty of support
The reciprocal duty of support is a fundamental part of any relationship. The court recognises different relationships from which this duty arises and it is, therefore, not solely limited only to relationships that are recognised by South African law.
The duty of support cannot exist by the operation of law (through legislation) unless the parties belong to a legally recognised social institution (such as a marriage or civil union), but this duty can emanate from a permanent universal partnership and be protected by the common law.
Volks judgment
The Constitutional Court case of Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC) is the leading authority on the duty of support outside the context of statutorily recognised social institutions.
The surviving partner, in this case, and the deceased were in a heterosexual life partnership. The surviving partner attempted to claim from the estate of the deceased through the Maintenance of Surviving Spouses Act 27 of 1990 (the Act). However, the surviving partner was unsuccessful as the relationship was not recognised by the Act.
The court in Volks confirmed that there are legal rights that arise from social institutions recognised by legislation. The court further stressed the fact that partners are free to decide on being regulated by this legislation, and it cannot allow partners (who have decided otherwise) access to these rights. In light of this, the court refused to extend this statutory protection to partners who were in unmarried heterosexual relationships.
The minority judgment, however, did mention that certain relationships, such as a universal partnership, arising from tacit agreements can be afforded legal protection.
The court, therefore, recognises two instances where there is a legally protected duty of support between partners, by either legislation or a contract.
Paixão judgment
The leading case on a contractual duty of support between partners is Paixão and Another v Road Accident Fund 2012 (6) SA 377 (SCA). The court in the Paixão case dealt with a claim for loss of support by a previous heterosexual universal partner of the deceased.
In Paixão the court considered, among others, whether an agreement existed, and what was the boni mores or communities’ convictions toward this agreement. It is the latter question that determines whether the existing agreement (and duty of support) should be provided the protection of the law.
After considering society’s view, together with the need to extend common law to afford the necessary protection to unmarried heterosexual partners, the court upheld the appeal and allowed the claim against the Road Accident Fund to succeed.
The court in casu held that there was a duty of support between the partners that should be afforded common law protection, and it is on this basis that a claim for loss of support was successful.
Common law development
Common law should always develop and align with societal norms. Formal social institutions are currently less pursued, and parties rather favour cohabitating or less formal relationships, such as a permanent universal partnership. This is influenced by, among others, social, cultural, legal, religious, and financial reasons.
Partnerships should, therefore, be further protected by our legal system. The well-anticipated draft Domestic Partnerships Bill, 2008 that legislators are currently deliberating over is the first step in the right direction.
The Divorce Act 70 of 1979 only allows ex-spouses of a marriage or ex-partners of a civil union to claim for maintenance, but, this protection is founded on the reciprocal duty of support that is fundamental to many other relationships.
Considering that universal partners have this same duty of support, and the courts (through the common law) have afforded relief on this basis, the common law should be further extended to allow for a separated universal partner to claim maintenance from their ex-partner if they remain dependent on this support.
Conclusion
In light of the above, there can be a duty of support between universal partners, and common law has – in the past – been extended to allow for universal partners to be afforded the same protection as spouses to a marriage.
Therefore, a claim for support by a previous universal partner should be allowed, and the extent of this duty should be sui generis.
In conclusion, it is of paramount importance for the court to acknowledge the dynamic nature of societal norms and the need for the common law to be versatile when deciding on this duty of support.
Delon Small LLB (cum laude) (UKZN) is a legal practitioner in Durban.
This article was first published in De Rebus in 2020 (June) DR 7.
