Cameron Miranda
Many people in South Africa believe that living together for a certain period of time constitutes a common-law marriage, but this is a misconception. Common-law marriage is not recognised in South Africa, and couples who live together do not become legally married under common law. However, couples who choose to cohabit instead of marrying can enter into a cohabitation agreement, which is a legal contract that outlines the rights, responsibilities, and obligations of each partner during the relationship and in the event of a separation. This agreement can be entered into verbally or in writing and can include details such as assets, property, and financial contributions. As more couples choose to live together instead of marrying, changes are being made to the law to give unmarried couples the opportunity to establish legal partnership rights.
Does common law marriage exist in South Africa?
| Characteristics | Values |
|---|---|
| Common law marriage recognised? | No, it is a misconception that cohabiting couples are automatically deemed married "in the eyes of the law". |
| Cohabitation agreement | A legal contract that outlines the rights, responsibilities, and obligations of each partner during and after the relationship. It addresses financial and property-related matters and protects the interests of both partners. |
| Inheritance rights | Couples in cohabitation do not have the same inheritance rights as married couples. Inheritance rights must be specified in a valid will. |
| Types of marriages recognised | Civil marriage, customary marriage, religious marriage, or civil union. |
| Upcoming changes | The Domestic Partnership Bill will provide couples with the option to register their relationship as a domestic partnership, creating similar rights and responsibilities as a marriage union. |
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What You'll Learn
Common-law marriage doesn't exist in South Africa
Common-law marriage does not exist in South Africa. Despite the widely held belief, couples who live together do not become legally married under common law after a set period. The partners living together have no legal duties towards each other, even after a long time together. This form of domestic partnership is not recognised under South African law.
South African legislation provides for various types of marriages, including civil, customary, and religious marriages, as well as civil unions. However, none of these legislations incorporate the recognition of common-law marriages.
Cohabiting couples in South Africa can protect their rights and obligations by entering into a cohabitation agreement. This is a legal contract between parties in a relationship who live together or intend to live together but do not wish to marry. The agreement outlines the rights, responsibilities, and financial obligations of each partner during the relationship and in the event of a separation. It can be entered into verbally or in writing, but it is recommended to have a written and signed agreement.
The proposed Domestic Partnership Bill aims to assist cohabiting couples by providing them with the option to register their relationship as a domestic partnership, creating similar rights and responsibilities as a marriage union. This will give unmarried couples the opportunity to establish legal partnership rights.
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Cohabitation agreements protect couples' rights
Cohabitation agreements are an effective way to protect the rights of couples who live together but are not married in South Africa. While cohabitation can be a fulfilling experience, it's important to consider the legal aspects to protect your assets and financial obligations.
In South Africa, common-law marriage is not recognised, and couples who live together do not become legally married under common law after a certain period. As a result, partners living together have no legal duties towards each other, even after a long time together. This means that the rights and protections afforded to married couples do not apply to cohabiting partners.
A cohabitation agreement is a contract that outlines the rights and obligations of each partner in a cohabiting relationship. It can be entered into verbally or in writing, but it is recommended to have it in writing and signed, especially if it involves joint property or assets. The agreement can include details such as assets, property, and financial contributions to their shared home. It is a flexible and customisable agreement that can be adapted to the couple's unique needs.
One important distinction is that cohabitation agreements cannot include provisions for inheritance or maintenance after the death of one of the partners. These matters are governed by separate laws, and any terms in the agreement regarding inheritance or maintenance will be invalid. However, a cohabitation agreement can provide protection in other areas, such as property rights and interests, during and after the relationship.
In South Africa, the law is evolving to recognise the changing nature of relationships. The proposed Domestic Partnership Bill aims to provide similar rights and responsibilities to married couples for those choosing to cohabit. This includes the option to register their relationship as a domestic partnership.
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Domestic Partnership Bill to recognise cohabiting couples
Cohabiting couples in South Africa do not have the same rights as married couples or civil unions. There is no common-law marriage in South Africa, and the time spent living together does not equate to a marriage.
To protect their rights, cohabitants can enter into a cohabitation agreement or contract, which can be verbal or written. This agreement should outline the rights and obligations of each partner, including any joint property or assets, and financial contributions. However, this does not offer the same protections as marriage or civil unions, particularly in the case of a partner's death.
The Domestic Partnership Bill, first drafted in 2006 and published in 2008, aims to address this issue by providing the option for cohabiting couples to register their relationship as a domestic partnership, with similar rights and responsibilities to marriage. This would allow cohabitants to have the same rights to claim maintenance from their partner's estate as married couples or civil unions. While the Bill has not yet been passed, the Constitutional Court affirmed the existence of domestic partnerships in Bwanya v The Master in 2021, recognising that these relationships should have equal protection under the law.
The Draft Marriage Bill of 2022 also demonstrates the South African Legislature's intention to recognise all forms of intimate partnerships, regardless of gender, sexual orientation, or cultural and religious beliefs. This aligns with the country's broader goal of achieving substantive equality in marriage legislation. However, there are concerns that the current wording of the Bill may lead to legal uncertainty and further discrimination against vulnerable groups, including women and the LGBTQIA+ community.
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No automatic right to inherit for cohabiting couples
In South Africa, cohabiting couples do not have the automatic right to inherit from each other in the absence of a valid will. This is because the country does not recognise common-law marriage, and cohabitation is not considered a formal legal relationship.
The South African legal system does not provide cohabiting partners with the same rights and protections as married couples. This means that, in the event of the death of one partner, the surviving partner will not automatically inherit their estate. For instance, in the case of *L.L v C.H NO and others [2023] ZAGPJHC*, the applicant and their partner had been in a romantic relationship and cohabited since 1990. When the latter passed away in 2016 without a will, the applicant was unable to inherit any part of their long-term partner's estate.
Cohabiting couples can protect their interests by drafting a will and a cohabitation agreement. A cohabitation agreement is a contract that outlines each partner's rights and responsibilities, providing clarity and security in the event of separation or death. It can be concluded at any time during the relationship and can be entered into verbally or in writing. However, it is recommended that the agreement be in writing and signed.
The cohabitation agreement can cover various aspects, such as specifying that the agreement does not constitute a marriage and addressing any joint property or assets owned by the couple. For instance, if the couple is buying or renting a house together, the agreement can include both names on the lease or recommend registering the property in both names.
While a cohabitation agreement can provide some security, it is important to note that it does not confer the same rights as a marriage certificate. In the absence of a will, the surviving partner in a cohabiting relationship will not be able to inherit under the Intestate Succession Act. Therefore, it is crucial for cohabiting couples to proactively protect their interests through these legal avenues to ensure their wishes are honoured in the event of death or separation.
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Common misconceptions about common-law marriage
There are several misconceptions about common-law marriage in South Africa. Firstly, it is commonly believed that if two people in a relationship live together for a certain period of time, they are automatically considered married "in the eyes of the law". This misconception may be due to the existence of common-law marriage in other countries, and people assume that South Africa has similar legislation. However, in South Africa, common-law marriage is not a recognised form of marriage. The Marriage Act 25 of 1961, Civil Union Act 17 of 2006, and the Recognition of Customary Marriages Act 120 of 1998 do not incorporate the recognition of common-law marriages.
Another misconception is that couples who live together under common-law marriage have the same protection and legal benefits as couples who have entered into a civil marriage. This is not true, as partners living together under common-law have no legal duties towards each other, even if they have been together for an extended period. For example, in the event of one partner's death, the surviving partner in a common-law marriage would not be entitled to inherit under the laws of intestate succession, unlike in a civil marriage.
Furthermore, some people believe that common-law marriage only applies to opposite-sex couples, but this is not the case. Common-law marriage, if it were recognised in South Africa, could include same-sex couples as well.
To protect themselves, couples living together outside of marriage are advised to enter into a cohabitation agreement. This is a legal contract that outlines the rights, responsibilities, and obligations of each partner during the relationship and in the event of a separation. A cohabitation agreement can be entered into verbally or in writing, but it is recommended to have it in writing and signed by both partners.
While common-law marriage is not currently recognised in South Africa, the proposed Domestic Partnership Bill aims to assist couples who choose to cohabit rather than marry. This bill will provide the option to register their relationship as a domestic partnership, granting similar rights and responsibilities as a marriage union.
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Frequently asked questions
No, common-law marriage is not a recognized form of marriage in South Africa.
A common-law marriage is a marriage that is recognized in the eyes of the law, even though the couple has not formally entered into a civil marriage. This usually refers to couples who have lived together for a certain period of time.
Yes, couples who live together but are not married can enter into a cohabitation agreement. This is a legal contract that outlines the rights, responsibilities, and financial obligations of each partner during and after the relationship.
A cohabitation agreement can include details of assets, property, and financial contributions made by each partner to their joint home. It can also outline how property and assets will be divided in the event of a separation.
A cohabitation agreement can be made verbally or in writing. However, it is recommended that the agreement is made in writing and signed to ensure it is legally enforceable.
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