Gavin Howe
In South Africa, common-law marriage, also referred to as cohabitation, is not recognised as a legal union. Contrary to popular belief, couples who live together do not become legally married under common law after a set period. There is currently no obligation for cohabitants to maintain each other, and they have no enforceable right to claim maintenance. However, a surviving domestic partner may claim compensation if their partner died as a result of injuries received during the course of work, if they were living as 'husband and wife'. To protect their rights and obligations, couples can enter into a cohabitation agreement, which can be verbal or written, and should clearly set out the rights and obligations of each party.
| Characteristics | Values |
|---|---|
| Common law marriage recognised? | No |
| Cohabitation agreement | Recommended to protect rights and obligations |
| Joint bank accounts | Not allowed |
| Joint property | Possible, but recommended to register in both names |
| Inheritance rights | No automatic right to inherit from a partner |
| Spousal maintenance | No automatic right to spousal maintenance |
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What You'll Learn
Common-law marriage is a misconception in South Africa
Cohabitation, also known as a common-law marriage, is a misconception in South Africa. Despite the widely held belief, South African couples who live together do not become legally married under common law after a set period. In other words, partners living together have no legal duties towards each other, even if they have been together for a long time. This form of domestic partnership is not recognised under South African law.
South African legislation provides for various types of marriages, including civil marriages, customary marriages, religious marriages, and civil unions. However, none of these recognised forms of marriage include common-law marriage. This misconception can lead to various implications, including the incorrect assumption that cohabiting couples enjoy the same protection and legal benefits as parties who have entered into a civil marriage. For example, cohabiting couples have no automatic legal right to inherit from each other and no right to spousal maintenance on death unless provided for in a will.
To address this gap in legal protection, cohabiting couples in South Africa can enter into a cohabitation agreement, also known as a domestic partnership agreement. This is a contract that defines the respective rights and responsibilities of each partner in terms of their relationship and financial aspects. It can be entered into verbally or in writing and can include details such as assets, property, and financial contributions to the joint home. A cohabitation agreement is particularly valuable when there is a significant disparity in income or joint property between the partners.
While cohabitation agreements can provide some legal protection for cohabiting couples, it is important to note that they do not carry the same weight as a legally recognised marriage. As such, couples who choose to cohabit rather than marry may still face challenges and limitations in areas such as joint bank accounts and legal rights as domestic partners. To address these issues, South Africa is working towards legal changes that will give unmarried couples more opportunities 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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Cohabitation agreements
In South Africa, cohabitation, also referred to as a common-law marriage, is not recognised as a legal relationship. This means that, contrary to popular belief, partners living together have no legal duties towards each other, even if they have been together for a long time.
However, couples who are not married but live together can enter into a cohabitation agreement to define their respective rights and responsibilities. This is a contract similar to a prenuptial agreement that regulates the couple's obligations during their union and the consequences of its termination. Such agreements are particularly valuable when there is a significant disparity in the income of the parties or joint property.
A cohabitation agreement can be entered into verbally or in writing, but it is recommended that the agreement be in writing and signed. It can be concluded at any time during the relationship and should clearly set out the rights and obligations of both parties. This includes aspects regarding any joint property, such as a house, as well as living expenses, financial support, and provisions for any children involved.
It is essential that couples seek legal advice when entering into a cohabitation agreement to ensure that their interests are protected and that the agreement is fair and enforceable.
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Domestic partnership bill
In South Africa, there is a common misconception that if two people in a relationship reside together for a certain period of time, they are automatically deemed to be married "in the eyes of the law", even without having formally entered into a civil marriage. This is referred to as a "common-law marriage". However, this is not a recognised form of marriage in South Africa.
To address this, the South African Law Reform Commission drafted the Domestic Partnership Bill in 2006, acknowledging the need for legal protection for unmarried couples. The bill aims to assist couples who choose to cohabit rather than marry by providing them with the option to register their relationship as a domestic partnership, creating similar rights and responsibilities as a marriage union. This includes the opportunity to claim maintenance for surviving spouses, which is currently not available for domestic partnerships.
While the bill has not yet been passed into law, there are alternative ways for unmarried couples to protect themselves and their interests. Cohabitation agreements are contracts that can be entered into verbally or in writing, at any time during the relationship. These agreements define the respective rights and responsibilities of each partner, including financial aspects and the division of assets, property, and financial contributions to their joint home. It is recommended that couples seek legal advice when entering into these agreements to ensure fairness and enforceability.
As the law currently stands, unmarried couples in South Africa have limited legal protection. For example, they cannot claim inheritance under the Intestate Succession Act or make maintenance claims against each other upon termination of the relationship, which can leave financially dependent parties vulnerable. With the increasing number of couples choosing to live together without marrying, it remains to be seen whether the Domestic Partnership Bill will be enacted to address these gaps in legal protection.
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Rights and obligations of unmarried couples
In South Africa, unmarried couples do not have the same rights and protections as married couples. The law does not recognise common-law marriage, and cohabitation is not regulated by law. This means that, no matter how long a couple has lived together, they are not afforded the same legal protections as married couples.
The rights and obligations of unmarried couples in South Africa can be protected by a cohabitation agreement. This is a legally binding document that outlines the financial and property arrangements of the couple. It can be entered into verbally or in writing, but it is recommended that it is concluded in writing and signed. A cohabitation agreement can be a simple contract, detailing assets, property, and financial contributions to the shared home, and it can be ratified by a lawyer. It can also be more complex, covering various aspects of the relationship, including financial matters, property rights, and potential future issues.
Unmarried couples can benefit from cohabitation agreements by establishing clear guidelines and avoiding legal complexities. They can define financial responsibilities, protect individual assets, and plan for the future. These agreements are not exclusive to married couples or the wealthy, and can be customised to suit the specific needs of the couple.
In terms of property rights, each person in the couple will need to prove what property they have acquired together to get back what they are entitled to. It is a good idea to keep proof of payments in the form of receipts and invoices. In some instances, it is possible for the couple to share the property (as if they were married) if it can be proved that a universal partnership existed between them. However, this can be difficult to prove due to strict requirements.
Regarding children, the law does not distinguish between married and unmarried parents in terms of their obligation to maintain children. Both biological parents are responsible for the maintenance of their children, and both are liable if the couple splits up. However, this does not apply to same-sex couples, as both parents cannot share a biological link with the child.
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Common-law duty of support
In South Africa, common-law marriage—the idea that couples who live together for a certain period are automatically deemed married "in the eyes of the law"—is a misconception. South African legislation does not recognise cohabitation as a legal relationship. As such, partners living together have no legal duties towards each other, even if they have been together for an extended period.
However, cohabiting couples can enter into a cohabitation agreement to protect their rights and obligations. This agreement can be verbal or written but is ideally concluded in writing, signed, and ratified by a lawyer. It should detail the respective responsibilities and rights of each party, including assets, property, and financial contributions to the joint home.
While cohabitation does not grant the same rights and duties as a legally recognised marriage, there are certain protections in place for cohabiting partners in South Africa. For instance, under the South African Compensation for Occupational Injuries and Diseases Act, a surviving domestic partner can claim compensation if their partner passes away due to injuries received at work, provided they were living together as 'husband and wife'. Additionally, cohabitants can include each other as beneficiaries under insurance policies or as dependents under pension funds.
In terms of family law, a parent's duty to support their child does not end at a particular age but when the child becomes self-supporting, typically when they start working. However, support may need to continue if the child has physical or mental challenges. Grandparents also have a duty of support towards grandchildren if the parents are unable to provide maintenance.
Furthermore, in the case of Du Plessis v Road Accident Fund, the common-law duty of support was widened to include partners in a same-sex permanent life relationship similar to marriage, who had undertaken reciprocal duties of support.
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Frequently asked questions
No, common-law marriage is not recognised in South Africa. Cohabiting couples have no legal duties towards each other, even if they have been together for a long time.
A cohabitation agreement is a contract that defines the rights and responsibilities of each partner in a cohabiting couple. It can be entered into verbally or in writing, but it is recommended that it is concluded in writing and signed. It can include details on assets, property, and financial contributions to the joint home.
If there is no cohabitation agreement, a person is only entitled to retain the property that they purchased and own. The couple would be entitled to share property proportionately in terms of the contribution made to the relationship. Each person will need to prove what property they acquired together to get back what they are entitled to.
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