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Divorce and Universal Partnerships | Isaacs v Isaacs

Isaacs v Isaacs 1949 (1) SA 952 (C) is a case which dealt with the distribution of assets of a universal partnership; well before the 2024 Divorce Amendment Bill which allowed for Muslim divorces in the Divorce Act.

It is always good to research the case history when looking at certain aspects of the law. They help us establish the roots of certain legal developments. One of the earlier decisions dealing with universal partnerships is that of Isaacs v Isaacs.

Plaintiff claims Tacit partnership based on Mohammedan Religious Law

The Plaintiff, Gadidja Isaacs, claimed from the Defendant, Gamat Isaacs, a half share of a fixed property situated at Waterloo Road, Meadows Estate, Lansdowne, Cape Province. The cause of action was based upon an alleged tacit partnership brought into existence at the time of the their “marriage” by Mohammedan Religious Law in 1918 and terminating with a tacit “dissolution” on the termination of the “marriage” in 1946.

Plaintiff was stay at home mother, Defendant was breadwinner

At the time of “marriage” the parties had no assets. During the 28 years they lived together ten children were born. The Defendant had spent most of his “married” years involved in business activities, and the Plaintiff had spent most of her time looking after the household and the welfare of the children.

Plaintiff claims half of Lansdowne property

The Plaintiff now at the “dissolution” of the “marriage” claimed a half share of the fixed property at Lansdowne. The Plaintiff averred that there was a tacit partnership between the parties covering all their undertakings in which she contributed equally with the Defendant in respect of labour and skill and that accordingly the property was a partnership asset to which she was entitled to half on dissolution.

Husband and wife tug of war with a house breaking in two

Defendant denies partnership exists

The Defendant on the other hand denied that there was ever any partnership between them, and maintained that the asset was solely the product of his labour and business ventures. He did not deny that to some small degree the Plaintiff from time to time assisted him in his different undertakings, but he denied that her contributions were in any way comparable with his and averred that in so far as she did assist him in his ventures she acted as his wife and a member of the family, and not as his partner.

Plaintiff was domestic, Defendant was tailor's assistant

At the time of marriage the parties were very poor. The Plaintiff was a domestic servant and the Defendant a tailor’s assistant. The Plaintiff assisted the Defendant in his tailoring activities. On her suggestion they commenced peddling fire-wood. A vegetable hawking business was developed. During certain periods of illness of the Defendant, the Plaintiff ran the business all alone.

Court finds tacit partnership did exist

The Court in the end found that a tacit, universal partnership had existed between the parties. One could not draw an inference on the fact that the Plaintiff’s intention was to work for her “husband” and to assist him to accumulate an asset for himself which he could dissipate at his pleasure.

The Court found further that the object of the partnership was to provide for the household, and that the labours of the Plaintiff in the home in part, if not entirely, formed part of her contribution to the partnership.

The Court held that they both had equal share and that it was impossible to hold that the Defendant had contributed more than the Plaintiff. This decision seems to be correct and is interesting as it lays the foundation for many future other cases involving the “universal partnership”.

article written by Cape Town divorce attorney, Peter M Baker

Divorce and Universal Partnerships | Isaacs v Isaacs

Plaintiff claims Tacit partnership based on Mohammedan Religious Law

Plaintiff was stay at home mother, Defendant was breadwinner

Plaintiff claims half of Lansdowne property

Defendant denies partnership exists

Plaintiff was domestic, Defendant was tailor's assistant

Court finds tacit partnership did exist

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