Legal Articles

Common law marriage?

It is widely, and mistakenly, believed that couples, whether heterosexual or same-sex , living together for a long period of time results in a common law marriage, thus giving each spouse the equal protection of the law.

"Our law does not give automatic rights to partners in a cohabitation relationship. If they had the choice of getting married and they didn’t, the law does not come to their assistance."

However, South Africa regulates only marriages contracted by means of civil law.

This allows the spouses in a civil marriage to benefit from certain automatic legal remedies available under the Marriages Act 25 of 1961, Matrimonial Property Act 88 of 1984, Maintenance of Surviving Spouses Act 27 of 1990 and the Divorce Act 70 of 1979.

Life partnerships

Life partnerships involve the same commitment as that of civil marriage. Life partnerships involve the same core ideas and reciprocal duties of support as that of a civil marriage.

Life partnerships differ in that there is no legal recognition for a life partnership under any legislation.

Although the courts have decided whether an express or implied partnership exists, it becomes problematic in proving that such legal obligations exist. 

Life partnerships are problematic in that the relationship between the parties involves the same legal and propriety consequences, but there is no legal backing when the partnership is terminated either by the relationship failing or by death.

The law does, however, provide couples of this nature with some form of scapegoat by allowing the partners of the relationship to record the relationship in writing, thus constituting a contract of sort.

It is in this written agreement where couples specify the legal and propriety consequences of their relationship.

Types of life partnership agreements

There are two types of life partnership agreements which couples can choose from:

1.      Universal partnership agreement

2.      Life partnership  agreement

A Universal Partnership Agreement allows a life partnership to be founded, subject to specific requirements:

• Each party in the life partnership must bring or bind himself or herself to bring something into the partnership.
• The partnership must be to the benefit of all the parties involved (joint benefit).
• The aim of the partnership must be to make a profit.
• The partnership may not contain any illegal or immoral provisions in order to be legally valid.

The universal partnership agreement will allow the couple to regulate the propriety aspects in terms of which assets form part of the partnership, the proportion in which the assets owned and shared and, furthermore, the proportion in which the generated profits from the partnership will be divided amongst the parties.

As the written agreement is formed under common law, it provides individual protection to each party with regards to the proprietary consequences.

In the case whether there is death, the agreement does not provide protection to the surviving party if there is an intestate estate or absence of a bequeathing  provision (A will) in the agreement between the parties.

A Life Partnership Agreement provides an alternative legal avenue for couples that cannot meet the requirements of the Universal Partnership Agreement.

Domestic Partnership Agreement

The agreement, also commonly known as a domestic partnership agreement, allows the couple to create and regulate the reciprocal duty of support and maintenance and allows the couple to regulate the propriety consequences in general.

Aspects that are commonly features in such an agreement include: post-separation maintenance, ownership of assets acquired prior to the partnership and assets acquired during the partnership. 

The agreement provides provisions for the partnership to be dissolved, thus terminating the agreement.

 It is important to note that where children are born between the parties out of wedlock, the Children’s Act 38 of 2005 establishes responsibilities and rights to both the mother and the father of the child.
 
 It provides that there is a legal duty to maintain the children regardless of the living arrangements of the parents.

Van Deventer & Van Deventer Incorporated - Antenuptial contracts Cape Town

Find out more about cohabitation agreements.

There are many misconceptions around the rights of couples in living arrangements outside marriage. Contact us to protect yourself, your children and your partner in a life partnership.