South African law does not recognise the cohabiting relationship of an unmarried couple as a legal ‘marriage’, regardless of the duration. Here’s how people in ‘vat-en-sit’ relationships can protect themselves financially.
Cohabiting, or living together without being legally married, has become a norm and a growing trend in South Africa and internationally. Many couples now opt for a domestic partnership, buying assets together and sharing expenses and other responsibilities.
But often people aren’t fully aware of the legal implications of this form of partnership because of
a misconception that cohabiting is the same as being married. Unfortunately, with the term ‘common law marriage’ having crept into our discourse, many mistakenly believe they’ll have legal recourse should the relationship end.
This is not true. South African law does not recognise cohabiting couples as married even if they’ve been together for a lifetime. ‘If you don’t need to get divorced to split up, you were never married in the first place,’ explains David Thomson, Senior Legal Adviser at Sanlam Trust. Many people have learnt this hard truth during break-ups or after a death, often resulting in serious emotional and financial trauma.
‘There’s no such thing as common law marriage,’ David says. ‘Marriage is governed by statute – the Marriage Act, the Civil Union Act and Recognition of Customary Marriages Act. Common law is our body of unwritten law, which doesn’t cater for the legal relationship of “marriage” as we know it. Often one of the parties to a “living together” arrangement is left aggrieved and worse off than the other.’
Is lobola a prerequisite for customary marriage?
Another common misconception is that paying lobola alone is grounds for a relationship to be recognised under the laws of customary marriage. However, the Customary Marriages Act of 2000 clearly stipulates that lobola is not a legal requirement for customary marriage.
Instead, for a partnership to be recognised as valid under customary law, the couple must comply with
a set of requirements, including:
Both parties entering the marriage must be above the age of 18 years
Both have to give consent to be married under customary law
The marriage must be negotiated, celebrated and entered into in accordance with the parties’ relevant customs and traditions.
The Act does stipulate that paying lobola or at least negotiating the payment goes a step further to proving that the marriage was negotiated in accordance with custom. David emphasises that ‘after engaging in a traditional ceremony, the parties should register their marriage with the Department of Home Affairs so the status of the relationship will be unambiguous’.
Pitfalls of cohabiting
While cohabiting has practical benefits, particularly sharing of household expenses, couples need to be aware of the pitfalls when the relationship ends or when one partner dies – particularly in terms of their future financial well-being.
Parties in cohabiting relationships don’t enjoy rights similar to those of couples in legal marriages, such as the right of inheritance when their partner dies. In addition, since neither party is a ‘spouse’ as defined by law, there’s no enforceable right to claim maintenance when the relationship ends through death or break-up. However, a recent Constitutional Court judgment has given hope to couples in a permanent relationship who’ve entered into reciprocal duties of support.
If a party can prove that he or she was engaged in a partnership with the other – in other words, that both had agreed to contribute to a joint activity and share profits and losses – the common law may come to their rescue in certain circumstances. The onus of proof is on the person alleging the partnership.
Pension and retirement
For cohabiting couples, there’s no provision in law to allow one partner’s pension assets to be endorsed in favour of the other in a cohabitation partnership, as is the case in terms of the Divorce Act for legally married couples. Another drawback is that they cannot bind their partners to contracts with third parties for household goods.
In cases where a property is owned and registered only in one cohabitant’s name, the other partner has no claim or right to the property, subject to proving a legal partnership as mentioned above. The party who owns the property may also evict the other party upon reasonable notice and may even lease or sell the property without notifying the other.
How do parties protect themselves?
For all the above reasons, experts recommend that couples who cohabit draft a domestic partnership agreement to protect themselves. The agreement regulates each party’s obligations for the duration of the relationship, as well as the division of property, goods and assets if the relationship ends.
To avoid any possible confusion or misinterpretation, the agreement should be drafted by an attorney.
Drafting a will – joint or single – is also vital. In it, the partners can confirm their relationship status. They can also set out exactly how they wish their assets to be distributed upon their death and who should care for any children in the absence of a natural guardian.
Cohabiting couples that don’t intend to get married but want to protect their financial security can also get married under the Civil Union Act. Once registered, a relationship can be officially recognised as a civil union.
Couples can elect the matrimonial property regime under which they want to fall – either in or out of community of property. The out-of-community-of-property option comes with a requirement for the couple to have an antenuptial contract that aims to protect each partner financially and in which they’ll choose to fall under the accrual regime or not.
As with any contract or agreement, the parties have a responsibility to educate themselves about the pros and cons before entering into the arrangement. An antenuptial contract is legal only if executed by a notary.
In the absence of an antenuptial contract, all married persons are married in community of property by default. People who simply live together aren’t married, and therefore fall outside the ‘in- or out-of-community’ paradigm.