“The general rule of our law is that cohabitation does not give rise to special legal consequences, no matter how long the relationship has endured” (From a 2010 High Court judgment and still applicable)
One of the more pervasive myths in South Africa is that, if you live together for long enough as “life partners”, you have some form of legal protection because you are in a “common law marriage”.
Not so! Our law has never recognised any such concept, and you could well be left high and dry when your partner dies or leaves you. The problem is that cohabitants have none of the general legal rights and duties to each other that apply to formal marriages and civil unions. The draft Domestic Partnerships Bill, which was published in 2008 and was supposed to remedy this situation, appears to have fallen off our lawmakers’ radar.
So what should you do?
If you don’t want to get formally married or register a civil union (some customary marriages are also recognised), ask your lawyer as soon as you can for advice on –
a. During your relationship, and
b) In the event of separation or death. Under this heading, address questions such as –
i) How will your various assets be divided?
ii) Will you be liable/eligible for maintenance and other financial support?
iii) Whether there will be any financial adjustment between you. What happens for example if only one of you works? Or if you paid for an extension to your life partner’s house or have been paying the bond?
iv) Who will take over ongoing liabilities and contracts such as leases, bonds, medical and life policies, monthly accounts and so on?
v) Anything else that will need to be regulated in your particular circumstances. This item is of course particularly important if there are children involved.
The risk of doing nothing
If you don’t have such an agreement and wills in place, you will have no rights of inheritance on death, and will walk away from a broken relationship with nothing but whatever you can prove to be your own separate assets. Our law reports are full of tragic cases of long-term life partners left destitute and homeless after decades of cohabitation.
If you are faced with that bleak prospect, ask your lawyer for advice on whether –
Avoid all that risk, cost, delay and dispute with a comprehensive life partnership/cohabitation agreement!
© DotNews, 2005-2018. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).