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- Featured article by LAWYERS-ONLINE.CO.ZA

What is the Law regarding Cohabitation?

Cohabitation is also referred to as a common law marriage. However, living together or a domestic partnership is not recognised as a legal relationship by South African law. There is, therefore, no law that regulates the rights of parties in a cohabitat ion relationship.

Cohabitation generally refers to people who, regardless of gender, live together without being validly married to each other. In the past, these relationships were called extramarital cohabitation. Put simply, men and women living together do not have the rights and duties married couples have.

Such relationships are not recognised by law as a marriage, the rights and duties that marriage confers do not apply. This is the case irrespective of the duration of the relationship.

Therefore contrary to popular belief, the assumption that if you stay with your partner for a certain amount of time a common law marriage comes into existence whereby you will obtain certain benefits is incorrect.

In South Africa, cohabitation has become more common over the past few years and the number of cohabitants increases by almost 100 per cent each year.

Unlike marriage, which is regulated by specific laws that protect the individuals in the relationship, cohabitation offers no such comfort. For example, when a cohabitant dies without a valid will, their partner has no right to inherit under the Inte state Succession Act. A cohabitant can also not rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance on the death of a partner.

Furthermore, there is no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance. South African banks normally do not allow joint accounts for cohabitants. An account will usually be opened in one partner’s name, but giving the other partner co - signing rights. Therefore, the partner in whose name the bank account is will be liable for any monies owed to the bank in case of an overdraft or loan .

The law as it stands is unsatisfactory, simply because it does not place cohabitants on the same footing as partners in a marriage or civil union. Fortunately, the South African law on cohabitation will soon be rectified by the draft Domestic Partnerships Bill that was published in January 2008. Until the Bill is a dopted into legislation, however, the status of cohabitants in South Africa will remain significantly different from spouses in a marriage and partners in a civil union.

Although legally cohabitants do not have the same rights as partners in a marriage or civil union, the South African courts have on occasion come to the assistance of couples by deciding that an express or implied universal partnership exists between them. A universal partnership exists when parties act like partners in all material respects without explicitly entering into a partnership agreement. In these cases, where the relationship breaks down, the court awards a share of the assets acquired during the relationship to each party.

To prove a universal partnership is very difficult and certain requirements must be satisfied: the aim of the partnership must be to make a profit; both parties must contribute to the enterprise; the partnership must operate for the benefit of both parties; and the contract between the parties must be legitimate.

To succeed with a universal partnership claim, it must be proved that: both partners contributed to a specific joint venture in some form or other through their labour, capital or skill; the venture was conducted for the benefit of both partners; the venture was conducted for profit; and a universal partnership came into existence.

Universal partnerships aside, there is some legislation that places cohabitation and marriage on an equal footing: cohabitation is recognised under the Domestic Violence Act. The Medical Schemes Act 131 of 1998 defines a dependant to include a ‘partner’. In terms of the Income Tax Act and the Estate Duty Act, cohabitants are treated as spouses for the purposes of tax legislation, and the word ‘spouse’ is defined to include a permanent same - sex or heterosexual relationship. Either partner in a cohabitation relationship may name the other as a beneficiary in a life - insurance policy. The nomination will, however, have to be clear, because a clause in an insurance policy that confers benefits on members of the insured's ‘family’ may cause problems. And if a policy, for instance a car insurance policy, covers/excludes passengers who are members of the insured’s family, this provision does not operate to the benefit/detriment of the insured’s partner. The law does not distinguish between married and unmarried parents in regard to the obligation to maintain children. Decisions regarding care and contact are based on what is in the best interests of the child. Children are protected if the couple is not married since both biological parents are responsible for the maintenance of their children. The father and mother are both still liable for maintenance if the couple splits up. This will not apply to same sex couples as both cannot share a biological link with the child. A domestic partner may receive pension fund benefits as a nominee. A domestic partner may also receive pension benefits as a factual dependant if he/she qualifies as such under the definition of ‘dependant’ in the regulations or conditions of that particular fund. A domestic partner will, however, not be entitled to their partner’s pension interest on termination of their relationship. Under the South African Compensation for Occupational Diseases Act, 1997, a surviving domestic partner may claim for compensation if their partner died as a result of injuries received during the course of work, if at the time of the employee’s death they were living as ‘husband and wife’.

Date: 8th May 2014
Legislation: Intestate Succession Act 81 of 1987
Maintenance of Surviving Spouses Act 27 of 1990
Domestic Violence Act 116 of 1998
The Medical Schemes Act 131 of 1998
Income Tax Act 58 of 1962
Estate Duty Act 45 of 1955
Compensation for Occupational Diseases Act, 1997

Cohabitation - Legal Information South Africa