In South Africa, the concept of cohabitation, often referred to as common law marriage, is experiencing a notable surge.
Despite this growing trend, there exists a significant legal gap in the protection and recognition of these relationships. Many cohabitants remain unaware that living together does not equate to being married, resulting in stark contrasts in the rights and responsibilities they possess compared to formally recognised unions.
The vulnerability of cohabitantsÂ
As it stands, cohabitation, defined as couples, regardless of gender, living together without a legally valid marriage, lacks a comprehensive legal framework governing their rights and obligations. Partners in these arrangements do not enjoy essential legal benefits typically granted to married couples, such as the right to maintenance or the ability to claim a share of assets acquired during the relationship.
With no legal protections in place, cohabitants find themselves vulnerable. For instance, banks often refuse to allow joint accounts for couples merely cohabitating; instead, accounts may only be opened under one partner's name. This scenario places one partner at risk for liabilities arising from debts. Further heightening their situation, if a relationship were to dissolve, partners without a cohabitation agreement face considerable insecurity regarding asset division.
Anticipated legislative changesÂ
A legislative solution is on the horizon with the draft Domestic Partnerships Bill, introduced in January 2008, which seeks to grant cohabiting couples the same status and protections as those in formally recognised unions. However, until this bill progresses to law, cohabitants remain without essential legal safeguards that married couples and civil partners currently enjoy.
Limited recourse through universal partnershipsÂ
In particular cases, the South African courts have acknowledged the existence of universal partnerships, which arise when parties act as partners in various aspects without formal documentation. Legal precedents show that couples who operate cohesively may have their shared assets equitably divided upon separation. An example includes a Supreme Court case where a couple had lived together for two decades, and the woman received 30 percent of their assets after the dissolution of their relationship.
Recognitions and cohabitation agreementsÂ
Some intersecting legislation extends limited recognition to cohabiting partners. For instance, the Domestic Violence Act permits cohabiting partners to seek protection in instances of domestic violence. Likewise, the Income Tax Act considers cohabitants as spouses for tax purposes. While cohabitants can name one another as beneficiaries on life insurance policies, clarity in such nominations is vital to prevent future disputes.
Many couples are beginning to formalise their relationships through cohabitation agreements, akin to ante-nuptial contracts. These agreements can detail financial obligations and asset division guidelines upon a relationship's end. In the case of a separation, such agreements can become legally enforceable, offering cohabitants the invaluable security they often lack.
Complexities of property rightsÂ
The dynamics of property ownership add another layer of complexity to cohabitation. Without a clear cohabitation agreement, assets acquired during the relationship generally remain the property of whomever purchased them. Non-property-owning partners may be at risk of eviction and often find themselves with no claim to a shared home, heightening the emotional and financial stresses associated with separation.
If a relationship ends, it is possible for courts to be petitioned for a fair division of jointly acquired property, but these processes can be protracted and contentious. Courts retain discretion when determining settlements, heightening uncertainty for those without appropriate legal documentation or mutual agreements.
Future of cohabitation law in South AfricaÂ
As cohabitation becomes increasingly entrenched in South African society, the call for a comprehensive legislative framework grows louder. The ongoing disparities between the rights of cohabitants and those of married couples underscore a pressing gap in legal protections that urgently requires attention. While the draft Domestic Partnerships Bill offers a glimmer of hope for future legal recognition, many are eager for its transition from proposal to law, seeking the rights and security that accompany formal marital relationships.
A historic ruling on cohabitation and deathÂ
The urgency of recognising cohabitation rights was underscored by the Constitutional Court's ruling on 31 December 2021 in the matter of Bwanya vs Master of the High Court Cape Town and Others. The case was initiated by a woman whose partner passed away without a will, leaving her without rights to inheritance or maintenance due to her status as an unmarried partner. The court found that the exclusion of opposite-sex couples from the Intestate Succession Act and the Maintenance of Surviving Spouses Act was unconstitutional, thus acknowledging the need for legal recognition of permanent life partnerships. This landmark decision represented a crucial step in addressing the vulnerabilities faced by unmarried cohabiting partners, particularly women who often find themselves at a disadvantage in such arrangements.
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Courtesy: Family and Divorce law in South Africa - A Comprehensive Guide
