Gavin Howe
In South Africa, common-law marriage is not recognised as a legal form of marriage. This is contrary to the widely held belief that couples who live together for a certain period become legally married under common law. The misconception can lead to various implications, including the incorrect assumption that cohabiting couples enjoy the same protection and legal benefits as married couples. However, South African law is evolving to encompass this evolution in cohabitation. The proposed Domestic Partnership Bill will provide couples who choose to cohabit with the option to register their relationship and establish legal partnership rights.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Common-law marriage is not recognised in South Africa |
| Cohabitation agreement | A legal contract that outlines the rights, responsibilities and obligations of each partner during and after the relationship |
| Rights of cohabitants | No enforceable right to claim maintenance, no automatic legal right to inherit from the other |
| Obligations of cohabitants | No obligation to maintain each other |
| Protection | Cohabitants do not have the same protection as married couples or civil partners |
| Upcoming changes | The draft Domestic Partnership Bill, published in 2008, will give couples 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 is not recognised in South Africa
Common-Law Marriage Is Not Recognised in South Africa
Cohabitation is common in South Africa, with the number of cohabiting couples increasing by almost 100% each year. However, cohabitation is not regulated by law and does not receive the same protection as a marriage. There is no common-law marriage in South Africa, and the duration that a couple spends living together does not mean that a marriage has come into existence.
The Misconception of Common-Law Marriage
Many South Africans mistakenly believe that if two people in a relationship reside together for a certain period, they are automatically considered married "in the eyes of the law", even without a civil marriage. This misconception can lead to various implications, including the incorrect assumption that cohabiting couples enjoy the same protection and legal benefits as married couples.
Protecting the Rights of Cohabiting Couples
To protect their rights and obligations, cohabiting couples can enter into a cohabitation agreement, which is a relatively simple contract ratified by an appointed lawyer. This agreement outlines the rights, responsibilities, and obligations of each partner during the relationship and in the event of a separation. It addresses financial and property-related matters, such as joint assets, property, and financial contributions to their joint home.
Future Changes in the Law
The South African law on cohabitation is expected to change with the proposed Domestic Partnership Bill, which will provide couples who choose to cohabit rather than marry with the option to register their relationship as a domestic partnership, creating similar rights and responsibilities as a marriage union.
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Cohabitation agreements offer some protection
Cohabitation, or common-law marriage, is not recognised as a legal relationship in South Africa. There is no obligation on cohabitants to maintain each other, and they have no enforceable right to claim maintenance. This means that, unlike in a marriage, cohabitants have no automatic legal right to inherit from their partner and no right to spousal maintenance on death unless provided for in a will.
However, couples can enter into a cohabitation agreement, which offers some protection. This is a relatively simple contract that includes details of assets, property, and the financial contributions of each partner to their joint home. It is ratified by an appointed lawyer. A cohabitation agreement can be entered into verbally or in writing, but it is recommended that such an agreement is concluded in writing and signed. It can be concluded at any time during the relationship and can include arrangements regarding the house in the event of the relationship ending (except by death); regulation of living expenses and which person will be responsible for what expenses; provisions to establish what property and liabilities will be kept separate; aspects regarding life insurance and pension funds; and custody arrangements, child support, and other related matters if there are children involved.
A cohabitation agreement is important because it provides both parties with a clear understanding of their responsibilities and expectations, preventing misunderstandings and disputes in the future. It also protects assets by detailing how assets acquired before and during the relationship will be divided in the event of a breakup. Finally, the agreement can set out provisions for financial support during the relationship or in its aftermath, ensuring that both parties are adequately provided for.
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Domestic Partnership Bill will soon change this
South African law does not recognise common-law marriage. Couples who live together do not become legally married under common law after a set period. Currently, cohabiting partners have no legal duties towards each other, even if they have been together for a long time.
However, this is set to change with the introduction of the Domestic Partnership Bill. This bill will provide legal protection for couples who choose to cohabit rather than marry. It will allow them to register their relationship as a domestic partnership, granting them similar rights and responsibilities as a marriage union.
Under the current law, cohabiting couples can only protect their rights and obligations by entering into a cohabitation agreement. This is a contract that includes details of their assets, property, and financial contributions to their joint home. While these agreements are legally enforceable, they may give rise to potential problems. For example, they may be concluded solely for the benefit of one party, or circumstances may arise that were not anticipated when the contract was drawn up.
The Domestic Partnership Bill will address these issues by offering similar protections to married couples. For example, Section 28 of the bill will allow surviving domestic partners to claim maintenance from their deceased partner's estate, a protection currently only afforded to surviving spouses and civil partners under the Maintenance of Surviving Spouses Act.
The proposed bill represents a significant step forward in recognising the rights of cohabiting couples in South Africa. By providing the option to register their relationship legally, the bill will ensure that domestic partners can enjoy the same protections and benefits as those who choose to marry.
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No legal duties between cohabiting partners
Cohabitation, also referred to as a common-law marriage, living together, or a domestic partnership, is not recognised as a legal relationship by South African law. There is no law regulating the rights of parties in a cohabitation relationship. Therefore, cohabitants do not have the same rights and duties as married couples. This is irrespective of the duration of the relationship or gender of the partners.
Since their relationship is not recognised by law as a marriage, the rights and duties conferred by marriage do not apply. For instance, cohabitants do not have the right to inherit from their partner unless provided for in a will. In the case of married couples, the surviving spouse would be entitled to inherit under the laws of intestate succession if their spouse dies without leaving a will.
Cohabitants also do not have a right to spousal maintenance unless provided for in a cohabitation agreement. This is because there is no reciprocal duty of support between partners in a domestic partnership. However, cohabitants can include each other as beneficiaries under insurance policies or as dependents under pension funds.
Cohabiting couples can protect their rights and obligations by entering into a cohabitation agreement. This agreement can be verbal or in writing and can be concluded at any time during the relationship. It should include details of assets, property, and financial contributions made by each partner. In the absence of a cohabitation agreement, a person is only entitled to retain the property that they have purchased and own.
The status of cohabitants in South Africa will soon change with the adoption of the Domestic Partnerships Bill. This will provide the option to register their relationship as a domestic partnership, creating similar rights and responsibilities as a marriage union.
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Common law marriage is recognised in other countries
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that is considered valid by the partners and the community but is not formally recorded with a state or religious registry. While not all jurisdictions permit common-law marriages, some countries do recognise them if they were lawfully entered into in a different jurisdiction.
United States
Common law marriage is recognised in some US states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah. Each state has specific requirements that must be met, such as both partners intending to be married, cohabiting, and publicly presenting themselves as a married couple. However, four states—Ohio, Idaho, Georgia, and Pennsylvania—have recently repealed laws recognising common-law marriage.
Canada
While Canada does not legally consider couples in marriage-like relationships to be married, they may be defined as "unmarried spouses" and granted similar rights and responsibilities in certain contexts, such as taxes and financial claims.
England and Wales
The term common-law marriage is used to refer to unmarried, cohabiting heterosexual couples, but it does not carry the same legal recognition as a formal marriage.
Scotland
Scotland abolished common-law marriage with the Family Law (Scotland) Act 2006, but irregular marriages established before 4 May 2006 are still recognised.
France
France does not recognise common-law marriage but offers civil unions as an alternative, which has led to an increase in couple formation and childbearing.
Belgium and Ireland
Civil unions are also recognised in Belgium and Ireland, but the impact of this on couple formation has not been studied.
Kuwait
Kuwait has limited recognition of common-law marriages in expatriate familial disputes, such as maintenance payments and child support dues. However, this recognition does not extend to couples where one or both parties are Kuwaiti or to homosexual couples.
South Africa
South Africa does not recognise common-law marriage. However, the proposed Domestic Partnership Bill aims to provide couples who choose to cohabit with the option to register their relationship as a domestic partnership, granting them similar rights and responsibilities as a marriage union. In the meantime, cohabiting couples in South Africa can protect their rights and obligations through a cohabitation agreement, which can be verbal or written.
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Frequently asked questions
No, common-law marriage is not recognized in South Africa. There is a misconception that cohabitation leads to a common-law marriage, but this is not the case. Cohabiting couples have no legal duties towards each other and are not offered the same protections as a married couple.
Cohabiting couples can enter into a cohabitation agreement, a legal contract that outlines the rights, responsibilities, and obligations of each partner during the relationship and in the event of a separation. This contract primarily addresses financial and property-related matters.
Yes, changes are being made to the law to give unmarried couples the opportunity to establish legal partnership rights. The proposed Domestic Partnership Bill will provide the option to register their relationship as a domestic partnership, creating similar rights and responsibilities as a marriage union.
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