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Maintenance Post Cohabitation

McDonald v Young 2012 (3) SA 1 (SCA)

The parties had lived together as man and wife from June 1999 until May 2006 (seven years).  After the breakdown, the appellant (man) sought an order that a joint venture agreement existed for the fixed property at Port St. Francis, alternatively for an order that the respondent (woman) pay him maintenance.

After the parties met, the man moved in with the woman to her farm in Knysna.  The man’s business was the promotion and marketing of surfing and surfboard products.  The man and his brother were in the process of establishing a manufacturing and exporting of surfboards business.  The man had no meaningful assets, and limited income.

The woman however earned more than R1.3 million per year and had many assets.  The parties had been 59 (man) and 54 (woman) when they met.  The man received a monthly allowance from the woman.

The man now claimed a half share in the property.  He averred that there was an express oral joint venture agreement concluded by the parties.  He averred that in terms of the agreement the woman would contribute financially to the acquisition, completion and refurbishing of the property while he would contribute his time and expertise to oversee the development of the property.

The court on appeal found that the appellant had failed to prove the existence of a joint venture agreement.  The court furthermore found that no duty of support arose by operation of law in the case of unmarried cohabitants, and that any obligations arising during the subsistence of their relationship could only arise by agreement.

The court in conclusion decided that a tacit contract is established by conduct, and in order to establish a tacit contract, the conduct of the parties must be such that it justifies an inference that there was consensus between them.  There must be evidence of conduct which justifies an inference that the parties intended to, and did, contract on the terms alleged.

The court found that from the man’s evidence there was no consensus between the parties.  He was uncertain about his financial future.  He realised that he would only be entitled to what had been agreed between the parties, hence his desire to have a written contract “to fall back on”.

The man in evidence had further stated that the woman’s attitude that the man would leave the relationship without any financial benefit was further seen by the court to prove that the woman had not tacitly or otherwise agreed to support the man.

The appeal was dismissed with costs in the end.  In my opinion this was the correct decision.  There was no evidence of a tacit contract in terms of which the woman undertook to financially maintain the man for as long as he needed maintenance.

This article was written by Cape Town divorce lawyer, Peter M Baker

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