Navigating property division in tacit universal partnerships

NAMATIRAI RUZVIDZO

In the quiet suburbs of Harare, a couple spends two decades building a life together.

Though never legally married, their relationship is marked by shared ambitions and mutual contributions.

One partner, a skilled artisan, launches a small manufacturing business using seed capital provided by the other, who manages the household and raises their children.

Together, they acquire properties, vehicles, and a comfortable lifestyle.

But when the relationship ends, the partner whose name is not on any title deeds suddenly faces the risk of losing everything—despite years of support and sacrifice.

This increasingly common situation highlights a critical and evolving area of Zimbabwean family law: the tacit universal partnership.

For decades, Zimbabwean courts have grappled with the equitable division of property for couples who, for various reasons, never formally married. While the new Marriages Act [Chapter 5:17] has brought welcome clarity by recognizing civil partnerships, the doctrine of Tacit Universal Partnership remains a vital legal tool, acting as a safety net for individuals who must prove their stake in a shared financial life built on an unwritten agreement. This article delves into the heart of this legal principle, exploring its foundations, the challenges of proving it and the strategies for navigating the complex terrain of property division.

What is a Tacit Universal Partnership?

A Tacit Universal Partnership is a legal concept, inherited from Roman-Dutch law, that recognizes a partnership existing between two parties even without a formal, written agreement. The term “Tacit” means the agreement is implied from the conduct of the parties. “Universal” signifies that it encompasses all property and commercial undertakings of the couple.

It arises when two people act as if they are in a partnership, contributing their resources, labour, and skills for their joint benefit with the goal of making a profit. In the Zimbabwean context, it has been most powerfully invoked upon the dissolution of long-term cohabitation relationships, where one party, often the woman, is left vulnerable because assets were registered in the other’s name.

The foundational case of Mtuda v Ndudzo 2000 (1) ZLR 710 (H)1 set a crucial precedent. In this case, the High Court of Zimbabwe recognized that a woman who had contributed to the household and a family business was entitled to a share of the property, even though she was not married to her partner. The court acknowledged that her indirect contributions such as managing the home, raising children, and providing support that enabled her partner to accumulate wealth were essential to the partnership’s success. This landmark ruling affirmed that a contribution does not have to be purely financial to have legal weight.

The Four Pillars: Proving the partnership’s existence

The burden of proving a Tacit Universal Partnership rest squarely on the person claiming its existence. It is not enough to have simply lived together; the claimant must satisfy four essential requirements, as established through decades of case law.

1. Each party must contribute

Both partners must bring something to the table. This can be money, assets, labour, or skills. The law is clear that these contributions are viewed holistically. For instance, if one partner provides the capital to start a business (for example a hospital), and the other, a qualified nurse, runs the hospital, both have made significant contributions. The court in Marange v Marange (1991) (1) ZLR 244 (S) articulated the principle that a wife’s non-financial contributions, such as managing the household, caring for children, and providing the domestic support that enables the husband to focus on generating income, are crucial to the accumulation of matrimonial property. The court recognized that these indirect contributions have real economic value and must be taken into account when dividing assets upon divorce. This ruling was pivotal in ensuring that the contributions of homemakers are not overlooked and are given legal weight in property disputes.

1. The venture must be for joint benefit

The claimant must prove that the intention was always for both parties to share in the fruits of their labour. This is often the most contentious element. The court will scrutinize the couple’s conduct. Was income pooled? Were decisions made jointly? Was the lifestyle of both parties supported by the profits of their joint enterprise? If profits from a business were used to acquire properties, but those properties were registered in one name, the claimant must argue that this was merely for convenience or, in worse cases, a deliberate attempt to exclude them from their rightful share.

1. The object must be to make a profit

The partnership must have a commercial goal. While this may seem to exclude purely domestic arrangements, the courts have interpreted “profit” broadly. The acquisition of assets and the general increase in the couple’s wealth are often seen as fulfilling this requirement. In a scenario where a couple runs a tuckshop, a farm, or even invests in real estate, the profit motive is clear.

1. The agreement must be legitimate

The purpose of the partnership cannot be for an illegal or immoral purpose. This is typically the easiest element to satisfy.

From conduct to courtroom: The challenge of evidence

Since these partnerships are defined by their lack of a formal contract, proving them requires a deep dive into the history of the relationship. A claimant and their legal team must become archivists of the couple’s life together. Key evidence can include:

1. Financial records

Bank statements showing joint accounts, fund transfers for property purchases, or proof of one partner paying for expenses related to an asset registered in the other’s name.

1. Witness testimony

Friends, family, or business associates who can attest to the couple’s joint endeavours and their public reputation as partners in life and business.

1. Correspondence

Emails, text messages, or letters discussing joint financial plans, property acquisitions, or business strategies.

1. Lifestyle analysis

Demonstrating that the couple shared a lifestyle funded by the joint enterprise, which points to the assets being treated as a common pool, regardless of the name on the title deed.

The case of Chapman v Chapman (1977), although an older case, illustrates the court’s willingness to look beyond formalities. Chapman v Chapman (1977) is not a Zimbabwean case. It is a prominent South African case from the Appellate Division (which is now the Supreme Court of Appeal). However, it is frequently cited and has been highly influential in Zimbabwean courts when dealing with cases of Tacit Universal Partnership. Because Zimbabwe’s legal system, like South Africa’s, is founded on Roman-Dutch law, decisions from South African courts, particularly from that era, hold significant persuasive authority. The court inferred a partnership from the couple’s conduct over many years, concluding that their intention was to share everything.

Strategies for navigating property division

For anyone who believes they are in a Tacit Universal Partnership, or for those exiting one, proactive and strategic thinking is essential.

For those currently in a relationship:

1. Document everything

While it may seem unromantic, keeping records is crucial. Maintain a file of major financial contributions you make to shared assets or business ventures.

1. Insist on joint ownership

Whenever possible, ensure your name is on the title deeds of properties and other significant assets. This is the simplest and most effective form of protection.

1. Consider a cohabitation agreement

A cohabitation agreement is a written contract between unmarried partners that outlines how assets will be divided if the relationship ends. While it may feel like planning for failure, it is a pragmatic tool that provides clarity and avoids costly legal battles later. It is the explicit antidote to the ambiguity of a “tacit” arrangement.

For those facing a separation:

1. Seek legal counsel immediately

Do not delay. An experienced family law practitioner can help you assess the strength of your claim and begin the crucial process of gathering evidence.

1. Gather your evidence

Systematically collect all financial records, correspondence, and a list of potential witnesses. Reconstruct a timeline of your contributions both financial and non-financial to the partnership.

1. Argue unjust enrichment

In addition to the Tacit Partnership claim, your lawyer may also argue unjust enrichment. This legal principle asserts that one person should not be allowed to get rich at the expense of another without a valid legal reason. You would argue that your partner was unjustly enriched by your contributions, which directly led to the acquisition of assets now solely in their name.

The Future of Tacit Partnerships in Zimbabwe

The legal landscape is continually shifting. The Marriages Act [Chapter 5:17] ‘s recognition of civil partnerships offers a more formal route for unmarried couples to secure their rights, defining them as a relationship between a man and a woman over 18 years of age who have lived together without being legally married. Upon dissolution, the law on divorce, specifically the Matrimonial Causes Act [Chapter 5:13], applies, which allows for a more straightforward and equitable distribution of assets.

However, the Tacit Universal Partnership will not become obsolete. It will remain the legal remedy for those who do not meet the specific criteria of a civil partnership or whose relationships predate the new Act. It will continue to serve as a testament to the principle that justice and fairness demand looking beyond formal documents to the substantive reality of a shared life.

In conclusion, the doctrine of Tacit Universal Partnership is a powerful declaration by the courts that it will not permit form to triumph over substance. It acknowledges the intricate and often unwritten ways people build lives together, ensuring that years of love, labour, and sacrifice are not dismissed by the absence of a name on a piece of paper. For anyone navigating the complexities of an unmarried long-term relationship, understanding this principle is not just a matter of legal knowledge, it is a crucial strategy for securing one’s future.

Namatirai Ruzvidzo is a registered Legal Practitioner, Conveyancer and Notary Public with the law firm, Ruzvidzo Legal Counsel. She can be reached on +263 784 228 534 or email namaruzvidzo@gmail.com, copying hello@rlcounsel.co.zw