Whilst common law marriages are legally recognized in countries such as the United States of America and Australia, it is NOT recognized in South Africa despite widespread belief to the contrary!
A common question posed to divorce attorneys is: “Am I married in terms of the common law?.” And the resounding answer to this question is “No.”
A common law marriage is referred to as a union between partners who choose not to be officially married but who live together as a married couple.
It is also referred to as a cohabitation agreement or a life partnership and is popular amongst younger couples.
The result of couples who erroneously thought that they were indeed married in terms of the common law is that they will not have the same legal benefits as that of married couples.
Even if you have spent a lifetime with your partner, you will still not be regarded as his/her/their common law wife/husband. The amount of time spent together therefore has no effect on whether you will be regarded as a married couple in terms of South African legislation.
IS A COHABITATION AGREEMENT THE SOLUTION?
South African Courts may recognize a universal partnership between cohabitants. A universal partnership is similar to a business partnership and gives rise to certain legal rights and responsibilities.
The law recognizes cohabitation and marriage as equivalent in the following instances: –
LEASED PROPERTY: Both partners will be responsible for the payment of rent in respect of a joint lease. However, should the lease agreement state that the parties can be held liable both jointly and severally, the lessor has the right to choose which one of the parties to pursue for the full rental amount owing.
Should the cohabitation relationship end, both partners will have the right to continue living on the leased property. The lessor will still be able to hold both parties liable for the full rental due, even if the parties agreed that only one of them will be responsible for the payment of rent.
Should only one of the parties sign the lease agreement, the other will not have any rights or responsibilities in terms of rental payments owing to the lessor. Similarly, this partner will have no right to remain in the property should the relationship end and can be evicted from the premises.
Some lease agreements stipulate that the premises may not be occupied- or sublet to any other person other than the legal tenant. Should the lessor find out about the cohabitant he/she/they will have a right to terminate the lease agreement.
MAINTENANCE: The Maintenance of Surviving Spouses Act allows for maintenance to be claimed by a surviving spouse against the deceased estate of their partner. In the matter of Bwanye vs The Master of the High Court Cape Town & Others (CCT 241/20), the Constitutional Court declared Section 1 of the aforementioned act to be invalid and unconstitutional. This has allowed life partners to have a maintenance claim against their deceased partner’s estate. However, the surviving partner can still not inherit assets from the deceased partner unless his will makes provision for it.
In the case of Daniels vs Campbell the Constitutional Court confirmed that the word “spouse” in the Maintenance of Surviving Spouses Act should also include widows from monogamous Muslim marriages and that such wives therefore had rights to claim maintenance from the estates of their deceased spouses.
Maintenance creates a reciprocal duty between spouses and parent and child. This reciprocal duty can still not be enjoyed by life partners when the relationship ends and as such a maintenance court cannot be approached for a maintenance order in this regard.
DIVORCE: Section 7 of the Divorce Act entitles spouses to claim future maintenance upon termination of marriages. This section applies to civil marriages and civil unions (i.e., heterosexual monogamous marriages) concluded in terms of the Marriage Act of 1961 and the Civil Union Act of 2006.
Should a registered customary marriage (i.e., registered monogamous or polygamous African customary marriages) end in divorce, the Recognition of Customary Marriages Act of 1998 determines that a court dissolving the marriage may make an order for post-divorce maintenance as contemplated in section 7 of the Divorce Act. This is set out in Section 8(4) of the Recognition of Customary Marriages Act which in effect creates a right to post-divorce spousal maintenance which did not originally exist in customary law. However, parties in life partnerships (and to an extent parties in Muslim marriages) are not allowed to claim maintenance during the subsistence- and/or following the termination of their relationships.
DECEASED ESTATES: In the matter of Bwanye it was determined by the Constitutional Court that life partners in terms of the Intestate Succession Act may inherit in terms of their deceased partner’s estate. However, this matter primarily links to the parties’ intention to marry before the demise of one of them. Accordingly, there is no precedent for life partners who merely intend to remain cohabitants.
TAX BENEFITS AND ADVANTAGES: Life partners already enjoy similar tax benefits as spouses. The Income Tax Act includes a “life partner” in the definition of “spouse”. This also extends to donations tax, which is not payable between life partners. The Estate Duty Act also includes life partners upon a spouse’s passing. A section 4(q) deduction can also be enjoyed by the surviving life partner should he/she/they inherit their deceased partner’s entire estate. In the event that you bequeath property to a life partner, that person will be exempted from paying transfer duty as they are regarded to be an heir to the estate.
COHABITATION AGREEMENT OR UNIVERSAL PARTNERSHIP?
The main risks for cohabitation without an agreement have been explained. Life partners may however agree to enter into a contract similar to an antenuptial contract that can regulate the parties’ obligations during the subsistence of their relationship as well as the consequences when terminating the relationship. Cohabitation agreements can include any provision as long as it is not unlawful, contrary to public policy, unenforceable and contra bonos mores.
These contracts generally regulate the finances of the parties during the relationship and deal with the division of assets upon termination. Parties can also include provisions for the payment of maintenance should the relationship terminate. Should either party default on the agreement, the other party may approach the Court to seek an order for specific enforcement. Parties should note that without a signed agreement, they will have no legal refuge should the relationship end.
Always make sure that you know and understand your legal standing before embarking on a long-term relationship. It is always worthwhile consulting an attorney for legal advice to protect your monetary interests whilst in a relationship with another party where both parties contribute financially towards household expenses, purchasing property etc. Ultimately, wisdom is the right use of knowledge