Case quite prevalent

2016-09-28 06:00
ANDREA PATHER

ANDREA PATHER

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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

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