McDonald v Young

The appellant (McDonald) and respondent (Young) cohabited as an unmarried couple for approximately seven years from June 1999 to May 2006. The appellant, aged 59 at the time they met, had no meaningful assets and limited income from surfing and surfboard marketing businesses. The respondent was 54, a woman of considerable means with annual cash income exceeding R1.3 million and substantial assets. During the relationship, the appellant received a monthly allowance from the respondent. The parties purchased property at Port Island, Port St Francis, Eastern Cape. The initial written agreement reflected both parties' names as purchasers, but the property was ultimately registered in the respondent's name alone. After the relationship ended in May 2006, the appellant instituted action claiming: (1) a joint venture agreement existed entitling him to a half-share in the property; alternatively (2) the respondent had a duty to pay him maintenance. The Western Cape High Court (Veldhuizen J) dismissed both claims. The appellant appealed with leave.

• Whether the appellant established the existence of a joint venture agreement entitling him to a half-share in the property
• Whether uncontradicted evidence must be accepted by the court
• Whether there is a legal duty of support on unmarried cohabitants by operation of law
• Whether a tacit contract for maintenance can be inferred from the parties' conduct
• What standard of proof is required to establish a contract on the balance of probabilities
• Whether a tacit contract can be inferred where it conflicts with an alleged express contract

The appeal was dismissed with costs.

The binding legal principles established are: 1. Uncontradicted evidence is not necessarily acceptable or sufficient to discharge an onus of proof. Evidence must still be credible and consistent with probabilities. Even unchallenged testimony that is "contrary to all reasonable probabilities" counts for nothing. 2. There is no legal duty of support on unmarried cohabitants by operation of law in South African law. Obligations between cohabitants arise only by agreement, and only to the extent of that agreement. 3. A tacit contract cannot be inferred where its terms would conflict with an alleged express contract between the same parties. A litigant can plead in the alternative but cannot testify in the alternative. 4. To establish a tacit contract for maintenance between unmarried cohabitants, the evidence and conduct of the parties must justify an inference that there was consensus between them to create such contractual obligations. Mere support during the relationship, inclusion in wills, or financial dependency is insufficient without evidence of mutual intention to create post-relationship support obligations.

The court made several important observations: 1. The court noted approvingly the statement from Dawood v Minister of Home Affairs regarding the social importance of marriage as an institution that gives rise to moral and legal obligations, particularly reciprocal duties of support - distinguishing it from cohabitation relationships. 2. The court observed that "the law may distinguish between married people and unmarried people and may, in appropriate circumstances, accord benefits to married people which it does not accord to unmarried people" (from Volks NO v Robinson). 3. The court noted that in marriage, spouses' rights are largely fixed by law and not by agreement, unlike parties who cohabit without being married, where obligations arise only from agreement. 4. The court referenced the principle from Rand Trading Co Ltd v Lewkewitsch that where parties erroneously assume a contract exists, their conduct in performing under that assumed contract does not create a binding contract - this precludes inferring a new tacit contract inconsistent with the assumed express contract. 5. The court observed that the "range of family formations has widened" in South African society, but this does not automatically extend legal duties of support to all such formations absent specific contractual or legislative recognition.

This case is significant in South African family law and contract law for several reasons: 1. It confirms that there is no general legal duty of support between unmarried cohabitants in South African law, even in long-term relationships. Any duty of support must arise from contract, not operation of law. 2. It clarifies the approach to extending common law duties of support - while constitutional developments have recognized contractual support rights in Islamic marriages and same-sex partnerships, these do not create a general duty for heterosexual cohabitants who choose to remain unmarried. 3. It reaffirms the principle that uncontradicted evidence is not automatically acceptable - courts must still assess credibility and consistency with probabilities. 4. It establishes that a tacit contract for maintenance cannot be inferred where: (a) it would conflict with an alleged express contract; (b) the party's own testimony negates the existence of consensus; or (c) conduct does not justify an inference of mutual intention to contract. 5. It demonstrates the importance of documentary evidence and consistency in claims - the evolution of the appellant's claims and his failure to mention alleged rights in contemporaneous documents proved fatal to his case. The judgment reinforces freedom of contract principles and the distinction between marriage (which creates legal duties) and cohabitation (which creates only agreed duties).