Claims based on tacit universal partnerships are frequently encountered in divorce litigation, where the spouses where married to each other out of community of property with the exclusion of the accrual system. In the case of RD v TD 2014 (4) SA 200 (GP), the court reiterated the distinction drawn between two kinds of universal partnership. Firstly, societas universorum bonorum, by which the parties agree to put in common all their property, present and future.
Secondly, societas universorum quae ex quaestu veniunt, where the parties agree that everything they acquire from a commercial undertaking, will be property of the partnership. The court concluded that where spouses carry on a bona fide business and the essential elements to create a partnership agreement are present, a partnership exists. It was held that this would not necessarily contradict the terms of an antenuptial contract, nor would it constitute an attempt to amend the parties’ antenuptial contract. Therefore the provisions of an antenuptial contract (excluding community of profit and loss) would preclude the existence of a societas universorum bonorum, but not necessarily a societas universorum quae ex quaestu veniunt.
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