Case quite prevalent

2016-09-28 06:00


Multimedia   ·   User Galleries   ·   News in Pictures Send us your pictures  ·  Send us your stories

Question: MY husband and I are married out of community of property, without the accrual.

The last ten years we have both worked together in our family business. Should we end up in a divorce, would I be entitled to share in the profits?

Answer: Our courts have recently been faced with the peculiar situation, similar to yours, where spouses who were married out of community of property without the accrual system, brought claims as to the existence of a universal partnership between the spouses.

Our law provides for two types of universal partnerships: 1) where the parties agree to share all their present and future property; and 2) where the parties agree to share all the property obtained from a commercial undertaking.

The difference between these two partnerships is clear. In the former instance, the parties agree that they will share all their property that they have acquired and will acquire in the future Z this can be termed a “non-commercial” partnership.

In the latter instance, only the property acquired as a result of a commercial undertaking is shared Z termed a “commercial” partnership.

Our courts have had no difficulty in concluding that “commercial” partnerships are valid in the law, even where spouses who are partners are married out of community of property without accrual.

Where spouses did not sign a partnership agreement, our courts have held that in the case of a “commercial” partnership, a partnership can come into existence tacitly, and to determine if a tacit agreement exists, the courts will look at the words and conduct of the parties to determine whether such a partnership existed.

In your case, in the absence of a clear partnership agreement confirming or denying the existence of a partnership, there is a strong possibility that your involvement with your husband in the family business provides grounds for being recognised as a tacit universal partnership, and that you would be able to have a claim for your share of the family business in the event of divorce.

We however recommend that you seek the assistance of a family law specialist.

Andrea Pather, candidate attorney, Phatshoane Henney Attorneys

Join the conversation! encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions.

Inside News24

Financial advisors – Do you need one and should you get one?

The good, the bad, and everything else you need to know when considering hiring a financial advisor.


Book flights

Compare, Book, Fly

Traffic Alerts
There are new stories on the homepage. Click here to see them.


Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.

Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire network.


Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.