Exploring Universal Partnerships and Putative Marriages as Tools for Awarding Partnership Property in Contemporary Family Law

27 Pages Posted: 27 Feb 2017

See all articles by Elsje Bonthuys

Elsje Bonthuys

University of the Witwatersrand

Date Written: December 9, 2016

Abstract

Following upon the Supreme Court of Appeal's judgment in Butters v Mncora 2012 4 SA 1 (SCA), which broadened the criteria and consequences of universal partnerships in cohabitation relationships, this article investigates the potential of universal partnerships and putative marriages to allocate rights to share in partnership property in other intimate relationships. It traverses several instances in which marriages are not recognised - bigamous marriages, Muslim and Hindu religious marriages and invalid customary marriages – examining whether the wives in these marriages could use universal partnerships and putative marriages to claim a share in property. It then considers the use of universal partnerships to obtain a share of property in civil marriages out of community of property. It concludes by pointing out several issues which are in need of clarification and where the common law should be developed to give effect to fundamental constitutional rights.

Keywords: Universal Partnerships, Customary Marriage, Putative Marriage, Muslim Marriage, Hindu Marriage, Bigamy, Marriage out of Community of Property

Suggested Citation

Bonthuys, Elsje, Exploring Universal Partnerships and Putative Marriages as Tools for Awarding Partnership Property in Contemporary Family Law (December 9, 2016). Potchefstroom Electronic Law Journal, Vol. 19, 2016. Available at SSRN: https://ssrn.com/abstract=2922344

Elsje Bonthuys (Contact Author)

University of the Witwatersrand ( email )

1 Jan Smuts Avenue
Gauteng 2000
South Africa

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