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The Common Law Marriage

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The Common Law Marriage

Many people have their own ideas as to what a Common Law Marriage is (also referred to as cohabitation). How does it begin? Is it true that you are married in terms of Common Law if you have lived with someone for more than three years? How is it dissolved? Or even what is it in the first place?

A Common Law Marriage is, “a union of two people not formalised in the customary manner as prescribed by law but created by an agreement to marry followed by cohabitation.” Marriage has evolved over the many years of its existence, for example; in Ancient Rome, marriage was finalised by way of two Parties agreeing to live together. There were no forms which had to be filled in and none of those expensive yet so glamorous ceremonies that are the stuff of dreams.

This was then changed by the Catholic Church in 1563 when they stated that no marriage was valid unless they were contracted in the presence of a Priest and two witnesses. In England, marriage by way of cohabitation and agreement was valid up until 1753 which saw the enactment of Lord Hardwicke’s Act. This Act brought with it a number of certain requirements including the necessity of performing a religious ceremony in the presence of witnesses. American colonies rejected the religious aspect of these necessities however they did hold onto the performance of a ceremony of sorts.

Now this all sounds simple enough, but there is a small problem… Common Law Marriages are not recognised in South African law. Although provision is made for these relationships in other Acts such as the Domestic Violence Act, people in a long-term life partnership do not enjoy the same rights as that of a married couple. So now if this is the case, what options do you have available to you to make sure that your rights and interests will be safe and protected should the relationship come to an unfortunate end?

Your first option would be to enter into a Life Partnership Agreement. This Agreement will set out what is to happen to any property bought whilst you are together, if there are to be any financial arrangements to be made between the Parties and, if there are children in the relationship, how is that situation dealt with? These Agreements are best entered into at the onset of the relationship.

The second option is a Universal Partnership Agreement. This Agreement seems much more like a business agreement than anything else. In order to prove such an Agreement, you would have to prove that the aim of both Parties was to make a profit; that both Parties had contributed to the enterprise; and that the partnership operates to benefit both Parties…and so on and so forth.

Without one of the above Agreements in place, you just might face the possibility of having to walk away with nothing. Although there is a prevalent opinion that marriages don’t last and in not getting married you’re possibly saving yourself from future expenses such as a divorce disputes, you are not protected. You do not, and will not enjoy the same benefits as those of a married couple.

It is best to base such a life forming decision on a well-informed foundation upon which to base your future.


Duncan O’Connor


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