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The Myth of Common Law Marriage in South Africa (Cohabitation)

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The Myth of Common Law Marriage in South Africa (Cohabitation)

Cohabitation or Common Law Marriage isn’t what people think it is. Two people start living together – usually in a domestic and sexual relationship.

The Myth of Common Law Marriage in South Africa (Cohabitation)

People in South Africa often think that living together, also called “common law marriage,” gives the same legal rights and responsibilities as a formal marriage. However, this belief is a myth, as no law in South Africa automatically recognises cohabitation relationships.

Even though they are not legally married, many still live together because they think they have the same rights and responsibilities as married couples.

Many people in cohabitation relationships, often called “common law marriages,” fully believe and expect they can benefit and enjoy certain rights from their relationship after living together for a certain amount of time, often five years or more.

This belief is widespread, with many people in these relationships expecting the same benefits and responsibilities as married couples.

However, a common law marriage is not a real marriage, and the parties have no inherent legal rights or obligations towards each other.

It’s as if it had somehow become a universal partnership or a form of marriage—but it’s not true!

Men and women or same-sex couples living together without formalisation through any documentation do not have the benefits or responsibilities of married couples because the law does not affirm any rights or obligations to this type of relationship.

Cohabitation in South Africa

Cohabitation refers to a relationship in which two people live together as a couple without being married.

Close up of a smiling beautiful young couple

Lack of Legal Protection in South African Cohabitation Relationships

When cohabitation relationships end, the parties involved may be left with no legal rights or protections.

Even if the relationship lasted for many years, there are no benefits or obligations beyond the pleasure of the time spent together.

Suppose one Partner dies without a valid will. In that case, the other Partner has no automatic right to inherit, and there is no obligation for one Partner to provide maintenance to the other after the relationship ends.

As a result, people in cohabitation relationships may find themselves “dancing alone” when the relationship ends, with no provisions made for them and no legal documentation to enforce any agreements or rights.

Banks in South Africa do not typically allow cohabitants to have joint accounts, and the Partner whose name is on the account may be held responsible for any debts.

Legislation For Cohabitation: How are couples protected during cohabitation?

In certain circumstances, South African courts may recognise a “universal partnership” between cohabitants, which is similar to a business partnership and can give rise to certain legal rights and responsibilities.

Some laws in South Africa recognise cohabitation and marriage as equivalent, such as:

  • Domestic Violence Act
  • Medical Schemes Act

However, cohabitation is generally not treated the same as marriage in matters of:

  • Tax
  • Insurance
  • Inheritance

Examples of Cohabitation and the Risks involved: 

Leased Property

Both partners are responsible for paying the rent in a joint lease, but each is only liable for their share.

However, if the lease states that the parties are jointly and severally liable, they may each be responsible for the entire amount of rent.

If the cohabitation relationship ends before the lease expires, both partners have the right to continue living on the leased property.

However, suppose one Partner decides to stay and subsequently defaults on rent payments. In that case, the lessor has the right to hold both partners liable for the total amount of rent, even if the partners had previously agreed that only one of them would be responsible for payments.

If only one Partner signs the lease agreement, the other (non-tenant) Partner does not have any rights or responsibilities and is consequently not liable to pay rent.

Yet, that (non-tenant) Partner has no security of tenure, so, if the relationship is terminated, they can be evicted by the other Partner (the legal tenant).

Suppose the Lease Agreement has a clause forbidding the occupation of those premises by any other person other than the legal tenant.

In that case, the lessor has the right to terminate the lease if they discover that the tenant is cohabiting or sub-letting.

When the relationship ends, as there is nothing legally binding between the two Partners, there is no duty to provide reciprocal support.

Maintenance 

There can be no enforceable right to claim any maintenance (unless there is a Cohabitation Agreement in place by which the Parties could regulate maintenance)—whether or not the relationship ended through the choice or death of one of the Partners.

Both of the Cohabitant Partners can only reclaim funds they may have spent on maintaining their Partner during the relationship if a case can be made for unjust enrichment.

Equally, if any donations were made between the Parties in the Cohabitation relationship, they cannot be reclaimed by the donor.

All things considered, all the excitement, comfort, and reward of a non-formalised Cohabitation Relationship last only for the relationship’s duration.

When a relationship ends, the partners are left with nothing but memories, which, while fantastic, do not pay the bills, feed the babies, or do anything else for the newly single ex-Partner.

The Myth of Common Law Marriage in South Africa (Cohabitation)

Constitutional Court recognises permanent life partnerships in historic ruling.

On December 31, 2021, the Constitutional Court issued its judgment in the case of Bwanya vs the Master of the High Court Cape Town and Others (CCT 241/20).

In this case, the applicant was a woman in a permanent life partnership with a man of the opposite sex. She argued that the Intestate Succession Act (ISA) and the Maintenance of Surviving Spouses Act (MSSA) should not leave out opposite-sex couples regarding inheritance and support, respectively. 

The Women’s Legal Centre Trust was admitted as an amicus curiae to provide the court with insight on the gender contexts and intersectional discrimination faced by black women in South Africa.

The applicant argued that the ISA and MSSA were unconstitutional as they did not recognise and include opposite-sex life partners who have undertaken reciprocal duties of support.

The applicant filed the case not only in her own interest but also on behalf of all other women in similar circumstances.

The court ruled in favour of the applicant and all other women in similar circumstances, stating that excluding opposite-sex couples from the ISA and MSSA unfairly discriminated against them.

In regards to the MSSA, the court found that section 2 was unconstitutional as it only granted maintenance to married spouses. The court acknowledged the existence and prevalence of permanent life partnerships in South Africa, stating that they deserve constitutional and legal protection. The court also recognised the vulnerability of women in these partnerships and the impact of the patriarchal nature of society on their ability to make choices about marriage.

Therefore, the ISA and MSSA have been amended to include opposite-sex couples and grant them the same rights as married couples concerning inheritance and maintenance.

Don’t leave your future to chance: Why a universal partnership is worth considering.

One of the main risks for couples who cohabitate is that their relationship is not recognised by law, and they do not have the same legal protections as married couples.

If the relationship ends, they may not have the same rights to property, maintenance, or inheritance as married couples.

It is important for couples considering cohabitation to understand this arrangement’s potential risks and limitations.

While cohabitation may be suitable for some couples, others may prefer the added legal protections and stability of a universal partnership or marriage.

A universal partnership is a legally recognised relationship that is similar to marriage but does not require a formal marriage ceremony.

Depending on the agreement, a universal partnership may provide many of the same legal protections as marriage, including the right to inherit from a partner, the right to claim maintenance, and the right to make medical decisions on behalf of a partner.

By entering into a universal partnership, a couple can have greater legal protection and security if their relationship ends or one Partner passes away.

Couples need to think carefully about their options and choose the arrangement that fits their needs and goals the best.

It is not so much ’til death do us part but more of ‘when we decide to part’.

If you are living together or plan to, it makes the most sense to see a Family Law Attorney and have them draw up a Cohabitation Agreement for you both – that way, whatever happens, you have some form of protection.

 

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