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n Stellenbosch Law Review = Stellenbosch Regstydskrif - Private contract or automatic court discretion? Current trends in legal regulation of permanent life-partnerships

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Abstract

This article discusses the legal protection available to unmarried couples who live in monogamous marriage-like partnerships. At present, South African law provides very little automatic protection to unmarried life-partners. Instead, the law expects couples to regulate their own affairs through private contract. The South African Law Reform Commission has expressed concern about the status quo: very few life-partners conclude such contracts. The Commission has proposed that upon termination of a life-partnership, the court should have automatic discretion to redistribute partnership property or order ongoing maintenance, where this is just and equitable. The Commission's draft Bill empowers the court to redistribute partnership assets or order maintenance upon application by financially vulnerable partners, even if the partners have not previously contracted for reciprocal support or asset sharing. Parliament has been slow to pass this legislation. Recently, the Supreme Court of Appeal has awarded benefits to life-partners based on new interpretations of the common law. The court has described the relief as contract-based and has required evidence that the partners had contracted for reciprocal support or sharing of assets. The court inferred tacit contracts by examining the conduct of the parties. The article argues that the court appears to have been very willing to infer tacit partnership contracts that protected the economically vulnerable partner. Indeed, it appears that the court might be developing a new default rule that where partners have cohabitated in a long term life-partnership they will be presumed to have agreed to provide mutual support or share partnership property. In effect, the court has moved from regulation based on private contract to regulation based on 'quasi-status' giving rise to automatic court discretion. In practice, the Supreme Court of Appeal decisions have brought legal regulation of life-partnerships very close to the Draft Bill's provisions.

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/content/ju_slr/26/1/EJC171537
2015-01-01
2016-12-05
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