Author : Maryna Botha – STBB
12 September 2016
NO COHABITATION AGREEMENT: PROOF REQUIRED THAT YOU SHARE IN THE HOME AND ASSETS
VERMEULEN V MARX (19398/2014)  ZAGPPHC (25 JULY 2016)
There are hard financial and emotional lessons to be learned in this judgment as it highlights the unenviable position of a person, after break-up of the cohabitation relationship for which no agreement was concluded, to prove that his/her contributions over a span of years constituted a universal partnership and what share in this partnership accrues to which party. One can only repeat the advice that, where persons are in cohabitation relationships, they conclude a written contract which lays out explicitly who has claims to what type of support, who owns the property and how, if at all, it would be split if the relationship fell apart.
• Our Courts have held that a universal partnership will exist if the following essentials are present:
(i) Each of the parties brought something into the partnership, whether it be money, labour or skill. (ii) The partnership was carried on for the joint benefit of the parties. (iii) The object was to make a profit. (iv) The contract was legitimate.
• A universal partnership of all property does not require an express agreement. Like any other contract it can also come into existence by tacit agreement, that is by an agreement derived from the conduct of the parties.
• It is by now accepted that a partnership enterprise may extend beyond commercial undertakings. Logic then dictates that the contribution of both parties need not be confined to a profit making entity.
• In the instance of persons cohabiting, this means that the contribution of one party can be the time, effort and energy in promoting the interests of both parties in their communal enterprise by maintaining their common home and raising their children. The partnership enterprise can include, if the facts support it, both the commercial undertaking and the non-profit making part of their family life.
• On the present facts the existence of a universal partnership has been proved. Amongst other facts shown: both contributed to the purchase of homes and daily expenses; when the relationship struggled, Marx offered to buy a house for Vermeulen; Marx nominated Vermeulen as sole beneficiary for his death benefits, and had retained her on his medical aid; it was also notable that their relationship lasted for 18 years, which is not a negligible duration. Significant was the concession made by Marx that if the relationship had not terminated because of his infidelity, Vermeulen would have benefited from the assets he had accumulated over time.
It was found that Vermeulen had succeeded in establishing, on a balance of probabilities, the existence of a universal partnership between her and Marx.
Vermeulen was found to have a share of 33% in the partnership.