Cameron Miranda
There is a common misconception that cohabiting couples in South Africa are automatically deemed to be married in the eyes of the law after a certain period. This is referred to as a common-law marriage, and while it is applicable in many legal systems around the world, it is not a recognised form of marriage in South Africa. However, couples who cohabit can enter into a cohabitation agreement, a simple contract that includes details of assets, property, and financial contributions, and which is ratified by a lawyer.
| Characteristics | Values |
|---|---|
| Common law marriage recognised? | No |
| Cohabitation agreement | A legal contract between parties in a relationship who live together but do not wish to marry. It outlines rights, responsibilities and obligations of each partner, including financial and property-related matters. |
| Universal partnership | Couples who cohabit and fail to draw up a cohabitation agreement will have no legal protection, but courts have assisted those who have proved the existence of a universal partnership. Requirements include: both parties contributing to the partnership through labour, capital or skill; the aim of the partnership being to make a profit; the partnership operating for the benefit of both parties; and a legitimate contract between the parties. |
| Domestic Partnership Bill | Proposed legislation that would provide couples who cohabit 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 is not recognised in South Africa
Common-law marriage is not recognised in South Africa. While it is a widely held belief that couples who live together for a certain period become legally married under common law, this is not the case. South African legislation does not incorporate the recognition of common-law marriages.
South African couples who live together do not become legally married under common law after any period of time. This means that partners living together have no legal duties toward each other, even if they have been together for a long time. This form of domestic partnership is not recognised under South African law.
However, couples who cohabit can enter into a cohabitation agreement, which is a legal contract between parties in a relationship who intend to or already live together but do not wish to marry. This agreement outlines the rights, responsibilities, and obligations of each partner during the relationship and in the event of a separation. It can include details on assets, property, and financial contributions to the joint home.
The proposed Domestic Partnership Bill will assist couples who choose to cohabit rather than marry, providing 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 legal protection
Cohabitation has become more common in South Africa over the years, with the number of cohabitants increasing by almost 100% annually. However, cohabitation does not offer the same legal protections as marriage. There is no obligation for cohabitants to maintain each other, and they have no right to claim maintenance or support from their partner during or after the relationship.
Cohabiting partners in South Africa do not have the same rights and protections as married couples. The laws governing property and asset distribution that apply to married couples do not apply to cohabiting partners. This means that without a cohabitation agreement, each partner would only be entitled to the assets they initially owned, and any jointly owned property could be subject to litigation or division at the court's discretion.
A cohabitation agreement is a contract between unmarried couples in a long-term relationship. It is a valuable tool that offers legal protection and helps establish a secure foundation for cohabiting couples. The agreement can cover various aspects of the couple's life together, including property rights, finances, and interests. It can also include clauses such as payment of maintenance and the division of assets.
To make a cohabitation agreement legally binding in South Africa, it must meet specific requirements:
- It should be documented in writing to ensure clarity and prevent misunderstandings.
- Both partners must voluntarily sign the agreement, demonstrating their informed consent and commitment to its terms.
- To strengthen the agreement's validity, it should be witnessed by an impartial third party who can confirm the authenticity of the signatures.
- It is advisable to sign and witness the agreement before a registered Notary Public to ensure its legality.
It is important to note that a cohabitation agreement does not confer the same rights as a civil marriage. Civil marriages provide more extensive legal protections and benefits, such as spousal maintenance, inheritance rights, and pension benefits.
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Universal partnership rights
In South Africa, universal partnerships are recognised in law as a way to protect the rights of individuals in non-marital cohabiting relationships. This is particularly relevant in the context of long-term cohabitation without formal marriage.
A universal partnership is a long-term relationship between two people, including same-sex partners, who decide not to get married. It is important to note that the law does not automatically confer rights on cohabiting partners. If one party dies without a will, the other is not legally entitled to inherit from their estate. To prove a universal partnership, certain requirements must be met:
- Both parties must have contributed to the partnership through their money, labour, or skill.
- The partnership should be carried out for the benefit of both parties.
- There must be evidence of an intention to benefit jointly, either express or implied.
- The parties must have integrated their financial affairs to some extent.
- The contract between the parties must be legitimate.
A formal agreement is highly recommended for couples considering a universal partnership, as it provides a clear, mutual understanding of each partner's rights and responsibilities and can help mitigate misunderstandings and legal disputes should the relationship end.
The recognition of universal partnerships in South Africa is influenced by Roman and Roman-Dutch law, which acknowledges these partnerships and provides a mechanism to regulate the rights and responsibilities of cohabiting partners. The Butters v Mncora case is a landmark judgment in South African law that addresses the legal recognition of universal partnerships and their impact on asset division.
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Domestic Partnership Bill
In South Africa, common-law marriage is not recognised. However, cohabitation is recognised under certain legislation. For instance, the law does not differentiate between married and unmarried parents regarding their obligation to maintain children. Furthermore, a domestic partner can claim compensation if their partner dies as a result of injuries received during employment.
In 2006, the South African Law Reform Commission acknowledged the need for legal protection for domestic partnerships and drafted the "Draft Domestic Partnership Bill". Despite this, Parliament has not prioritised passing the bill, leaving the legal position in South Africa unchanged.
The Domestic Partnership Bill aims to address the legal rights of couples in domestic partnerships. Currently, couples in domestic partnerships do not have the same rights as married couples or those in civil unions. For example, they cannot make claims against each other upon termination, which can leave financially dependent parties vulnerable.
The bill would provide an opportunity for surviving domestic partners to claim maintenance from the estate of the deceased partner, similar to the rights of surviving spouses in marriages and civil unions under the Maintenance of Surviving Spouses Act.
Additionally, the Supreme Court of Appeal has shown a willingness to extend contract-based legal protection to domestic partnerships. Contracts can be concluded by domestic partners to govern aspects such as the division of property upon the termination of the relationship. However, these contracts may give rise to potential issues, such as benefiting only one party or not accounting for unanticipated circumstances.
Overall, while the Domestic Partnership Bill seeks to provide legal protection for domestic partnerships in South Africa, it has not yet been enacted, leaving these couples without the same legal rights as married couples or those in civil unions.
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Civil marriage, customary marriage, civil union, or religious marriage are legally recognised
In South Africa, common-law marriages are not recognised by law. However, civil marriage, customary marriage, civil union, and religious marriage are legally recognised.
Civil Marriage
Civil marriages are governed by the Marriage Act and the regulations issued under the Act. They are solemnised at the offices of the Department of Home Affairs and in churches.
Customary Marriage
Customary marriages are recognised as valid marriages under the Recognition of Customary Marriages Act, which came into effect in November 2000. Customary marriages are negotiated and celebrated according to indigenous African customary law. They are recognised as valid and receive full legal protection, irrespective of whether they are monogamous or polygamous.
Civil Union
Civil unions are legally recognised marriages between two individuals, regardless of their sexual orientation. Introduced in 2006 through the Civil Union Act, they provide the same legal rights and responsibilities as civil marriages, serving as an alternative for couples who wish to avoid the religious associations linked to civil marriages.
Religious Marriage
Religious marriages are not recognised as legal marriages under South African law. However, the spouses are protected by law in certain instances, such as maintenance orders against the deceased spouse's estate and protection against domestic violence. The Draft Marriage Bill of 2022 proposes to change the laws to recognise religious marriages, giving them the same legal rights as other legally recognised marriages.
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Frequently asked questions
No, common-law marriage is not a recognized form of marriage in South Africa.
Common-law marriage refers to when two people in a relationship are considered legally married after cohabiting for a certain period.
Unmarried couples who live together in South Africa can enter into a cohabitation agreement, a legal contract that outlines each partner's rights, responsibilities, and obligations during the relationship and in the event of a separation.
A cohabitation agreement includes details of the couple's assets, property, and financial contributions to their joint home. It can also specify which assets and/or property are owned individually or jointly and how jointly-owned property will be divided in the event of a separation.
