Gavin Howe
In South Africa, common-law marriage is a misconception. Contrary to popular belief, couples who live together do not become legally married under common law after a certain period. However, couples can enter into a cohabitation agreement to protect their rights and obligations. This agreement can be verbal or written and should outline each partner's rights and obligations, including financial contributions, assets, and property ownership. While common-law marriage is not recognised, cohabitation agreements provide a way for unmarried couples to establish legal partnership rights and protect themselves in the event of separation.
| Characteristics | Values |
|---|---|
| Common law marriage | Does not exist in South Africa |
| Cohabitation agreement | Can be entered verbally or in writing, but it is recommended to be in writing and signed |
| Should set out the rights and obligations of the couple, including any joint property and financial contributions | |
| Can outline how disputes will be resolved | |
| Does not constitute a marriage | |
| Cannot stipulate inheritance or maintenance after the death of one of the persons in the relationship | |
| Should be concluded with legal advice to ensure fairness and enforceability | |
| Universal partnership | Must be proven through labour, capital, or skill contributions; the aim must be to make a profit; it must benefit both parties; and the contract must be legitimate |
| Domestic Partnership Bill | Provides couples who cohabit the option to register their relationship and gain similar rights and responsibilities as a marriage union |
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What You'll Learn
Common-law marriage
In South Africa, common-law marriage is not recognised as a legal form of marriage. Contrary to popular belief, couples who live together do not become legally married under common law after a certain period. This means that partners living together have no legal duties towards each other, even after a long period of cohabitation.
However, cohabiting couples can protect their rights and obligations by entering into a cohabitation agreement. This agreement can be verbal or written, but it is recommended to have it in writing and signed. The cohabitation agreement should outline the rights and obligations of each partner, and it cannot include terms related to inheritance or maintenance after the death of one of the partners. The agreement can cover various aspects, such as the division of assets, property ownership, financial contributions, and the resolution of disputes. It is important to seek legal advice when drafting a cohabitation agreement to ensure fairness and enforceability.
While common-law marriage is not recognised in South Africa, the country's legislation provides for various types of marriages, including civil marriages, customary marriages, religious marriages, and civil unions. As more couples choose cohabitation over marriage, changes are being proposed to give unmarried couples the opportunity to establish legal partnership rights. The Domestic Partnership Bill, for example, aims to provide similar rights and responsibilities as a marriage union to couples who register their relationship as a domestic partnership.
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Cohabitation agreements
Cohabitation, or common-law marriage, is not recognised as a legal relationship by South African law. This means that there is no law that regulates the rights of parties in a cohabitation relationship. As a result, cohabiting couples have no legal duties towards each other, and the duration of their relationship does not equate to a marriage.
However, couples can enter into a cohabitation agreement to protect their rights and obligations. This agreement can be verbal or written, but it is recommended that it be written and signed. It can be concluded at any time during the relationship and should clearly outline the rights and obligations of both parties.
A cohabitation agreement can include various aspects, such as:
- Joint property ownership, including the family home, and other assets
- Financial contributions and living expenses
- Maintenance and support provisions
- Inheritance, wills, and estate planning
- Custody arrangements and child support, if there are children involved
- Life insurance and pension funds
It is important to note that a cohabitation agreement cannot include immoral or illegal provisions. While it offers a framework, each relationship is unique, and consulting a legal professional is advisable to ensure the agreement is tailored to the couple's specific needs.
South African law is evolving to encompass this shift towards cohabitation. The proposed 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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Domestic partnerships
In South Africa, common-law marriage is a widely held belief that couples who live together become legally married under common law after a certain period. However, this is not true, and partners living together have no legal duties towards each other, even after a long time. This form of domestic partnership is not recognised under South African law.
To protect themselves, couples who cohabit can enter into a cohabitation agreement, which is a contract similar to an antenuptial contract. This agreement regulates their respective obligations during their union and the consequences of its termination. It can be entered into verbally or in writing, but it is recommended that it be in writing and signed. The agreement should clearly set out the rights and obligations of the couple, including that the agreement does not constitute a marriage and aspects regarding any joint property.
Cohabitation agreements can include clauses such as the payment of maintenance and the division of assets, property, goods, and finances. Without such an agreement, cohabitants have no legal protection. However, South African courts have, on occasion, recognised the existence of an express or implied universal partnership between couples who have not explicitly entered into a partnership agreement. To prove a universal partnership, certain requirements must be satisfied: both parties must have contributed to the partnership through their labour, capital, or skill; the partnership must aim to make a profit; it must operate for the benefit of both parties; and the contract between the parties must be legitimate.
The South African law on cohabitation is expected to change with the draft Domestic Partnerships Bill, published in January 2008. This bill will provide the option to register their relationship as a domestic partnership, creating similar rights and responsibilities as a marriage union. Additionally, civil partnerships were introduced in South Africa by the Civil Union Act of 2006, which also legalised same-sex marriage. Civil partnerships can be formed by opposite-sex or same-sex couples and carry the same rights and responsibilities as marriages.
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Legal protection
In South Africa, common-law marriage is a widely held misconception. Many believe that by living together for a certain amount of time, they enter into a common-law marriage. However, this is not a recognized form of marriage in South Africa, and couples who live together do not become legally married under common law. As a result, partners living together have no legal duties towards each other, even after a long period of time.
To protect themselves, couples in cohabitation can enter into a cohabitation agreement, which can be verbal or written. A cohabitation agreement is a contract that outlines the rights and obligations of each partner during and after the relationship. It can include details such as the division of assets and property, financial contributions to the household, and how debts will be dealt with. The agreement can also specify how disputes will be resolved, such as through mediation, arbitration, or approaching the Court.
It is recommended that a cohabitation agreement be concluded in writing and signed by both parties. This ensures that the agreement is fair and enforceable, and that the interests of both parties are protected. Seeking legal advice when entering into a cohabitation agreement is essential.
In South Africa, the law is evolving to encompass the changing nature of cohabitation. 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. This development will give unmarried couples the opportunity to establish legal partnership rights and protect themselves legally.
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Common misconceptions
South Africa has a 'hybrid' or 'mixed' legal system, formed by the interweaving of several distinct legal traditions. The country's legal system is influenced by Roman Dutch civilian law, English common law, customary law, and religious personal law.
One common misconception is that common-law marriage exists in South Africa. Contrary to popular belief, couples who live together do not become legally married under common law after a set period. There are no legal duties between partners, even if they have been together for a long time. This form of domestic partnership is not recognised under South African law. However, couples can enter into a cohabitation agreement to protect their rights and obligations during and after the relationship. This agreement can be verbal or written, but it is recommended to have it in writing and signed.
Another misconception is that common law does not play a significant role in South Africa's legal system. While the country has a mixed legal system, common law inherited from the British has influenced various aspects of South African law. English law is followed in criminal and civil procedure, company law, constitutional law, and the law of evidence.
Additionally, some may assume that indigenous law is not a significant part of the legal system. However, indigenous law has three recognised forms: law practised in the community, law in statutes, case law, or textbooks on official customary law, and academic law used for teaching purposes. Furthermore, African indigenous courts deal exclusively with indigenous law, and a draft Traditional Courts Bill aims to introduce a Traditional Court alongside or above the Magistrates' Courts.
Finally, it is important to note that common-law marriage should not be confused with civil marriage, customary marriage, religious marriage, or civil union, which are all recognised forms of marriage in South Africa.
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Frequently asked questions
A common law marriage refers to a couple that is considered legally married after cohabiting for a certain period, without formally registering their union.
No, common law marriage is not recognised in South Africa. Couples who live together do not become legally married under common law after a set period of time.
Couples who live together in South Africa can enter into a cohabitation agreement.
A cohabitation agreement should include details of assets, property, and financial contributions. It can also outline how disputes will be resolved and how property will be divided in the event of a separation.
To make a cohabitation agreement legally binding, it is recommended that it is concluded in writing and signed. It is also important that both parties seek legal advice to ensure that their interests are protected.
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