Good morning
I really need your advice. I have been living with a man for 30 years. We are not married but I found out that he has been having an affair for 3 years. I am going to leave him but please will you tell me what my rights are.
When we met in I had a house and a car. I did not use my Volkswagen so he used it. He used my car and a year later we sold it and bought him a new car. We also sold my house a few years later and used that to buy a bigger house. This was about twenty years ago. The new house and cars that followed after that are all in his name. I left my job many years ago to take care of my children and he supported us. My two daughters are not his.
I do all the homework myself, cooking, cleaning, also do the garden, massage his shoulders every night, wash cars, varnishing of the house. My children have left the house but I don’t know what my next step should be. This is not easy.
Dear Women’s Month Reader
We are terribly sorry to learn of your predicament. This is a very tricky situation seeing that there is a big gap in South African law when it comes to long term relationships – where both parties contributed to the common household, but on paper only one party holds all the funds.
Without a valid Marriage, Civil Union (similar to a Marriage) or Universal Agreement, your cohabitation with this man is not expressly recognised in law/ legislation.
Your options here include:
a) Prove an implied Universal/ Partnership Agreement in Court:
- There is a Domestic Partnership Bill (this law has not been enacted/ become operational as yet) which may offer future protection to persons in a similar situation. So, the good news is that the legislators have realised that there is in fact a big shortcoming regarding long term cohabitants. Unfortunately, this new law is dragging its feet and implementation is unfortunately not around the corner.
- HOWEVER, there has been a handful of court cases where one of the cohabitants were able to prove an implied Universal Partnership. This is extremely difficult to prove, and most unfortunately fail.
- To prove an implied Partnership Agreement, you need to prove that you both contributed to the household/ domestic partnership enterprise and that both parties aimed to make a profit and enjoy the benefits of a growing domestic partnership enterprise. Your lengthy time together will also play a role. Cooking, cleaning, massaging, etc. also count as household contributions.
- Just to highlight a specific case in terms of which the woman was successful in proving an implied Domestic Partnership (and in her case they were together for ten years less than you and your partner, i.e. 20 years): although both contributed to the same extent, as it was claimed, the woman walked away with only 30% of the partnership enterprise’s value.
- This could be a lengthy and tiresome court experience. We note that you are not a Legal Hero policyholder, but we might be able to recommend an excellent attorney in your area.
b) Better yet, try to mediate the matter:
- It could be that your partner is willing to settle out of court and award you a fair percentage of the common household considering all your contributions. This would spare you the expense of going to court and one could split the household depending on what is fair to both parties. An agreement could be drawn up for both of you to sign and abide by.
c) Claim monies of the past three years:
- A Civil claim (your partner owing you money) prescribes in three years’ time. In other words, if you loaned your partner money/ assets/ etc., he would be able to raise the special defense of prescription in court regarding debts older than three years. At this point in time, you would only be able to claim back from your partner any and all expenses (that you are able to prove in writing) over the past three years.
- An acknowledgment and/ or an agreement to start paying the debts off (even if it’s only a small payment every month) will revive the debt!
- Just bear in mind that he who alleges, bears the burden of proof. You would also for example have to give an explanation as to why everything was registered in his name.
What is a Domestic Partnership Agreement? It is a contract that sets out the legal implications of a committed and long term heterosexual or same sex couple who decide not to marry but wish to protect themselves against an unfortunate separation. More specifically, it sets out the assets and properties of each of the parties and what were to happen should the relationship turn sour.
Should you and your partner decide to get back together, or you wish to cohabit with another person, please consider entering into a Domestic Partnership Agreement. It has your best legal interests at heart and can save you from all the admin and legal uncertainties you are currently facing.
This is a lot to take in. Please consider your options carefully and do not hesitate to ask follow-up questions.
Kind regards,
Legal Hero
www.legalhero.co.za
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