To make explicit what is implicit

Life partners versus Marriage; What to expect legally?

Considering tying the knot? Perhaps not? Why not?

Whether it be the rise of the millennials and their unconventional views, the deteriorating economy or perhaps the amount of administration involved, whatever the reason may be, the trend is that more and more people are opting not to get married.

As the traditionalist idea and the practice of marriage becomes obsolete in today’s modern world, many couples are choosing to cohabitate. Co-habi-what? Cohabitation is the act of couples living together in a permanent relationship, who share a union based on love without being legally married.

In South Africa, there are three ways in which couples may lawfully wed, namely:
1. Marriage in terms of the Marriage Act;
2. Civil union in terms of the Civil Unions Act; or
3. Customary marriage in terms of the Recognition of Customary Marriages Act.

Any of above forms will achieve recognition in terms of South African law.

With no laws to regulate the union of permanent life partners, cohabitation is to a large extent unrecognised and unregulated. Hence, what appears to be an increasingly popular choice for many South Africans, might be an unceremonious arrangement.

The first thought that comes to mind when contemplating marriage is the celebration of love between persons who wish to (hopefully) spend the rest of their lives together. Marriage, cohabitation, or what is also known as a domestic relationship or life partnership, whether lawfully recognised or not, shares this common trait. What most fail to consider, however, are the ramifications or lack thereof that ensue.

The fact that a permanent life partnership is not concluded in one of the three above-mentioned forms results in little to no protection in terms of the law. Notwithstanding the few laws that do offer protection, the reality is that the consequences of marriage and cohabitation largely differ upon termination of each, be it by death or divorce. The most noteworthy implications are summarily discussed below:

• Maintenance
The Maintenance of Surviving Spouses Act entitles a surviving spouse of a marriage or partner to a civil union to institute a claim against the estate of the deceased spouse. The Act enables the surviving spouse to claim his or her reasonable maintenance needs from the deceased’s estate, until death or such time as the surviving spouse remarries. Life partners, however, are afforded no such right in law. The surviving life partner, who was previously supported by the now deceased life partner will have no claim for maintenance. Similarly, no claim for maintenance exists for cohabitating couples on dissolution of the relationship. Whereas spouses who divorce, may institute a claim for reasonable maintenance.

• Property
Another fundamental consequence of marriage is how the parties wish to deal with the property they own or will own. The Matrimonial Property Act makes provision for different marital property regimes in order to regulate the proprietary consequences of the marriage. Parties to a marriage may either marry in community of property or out of community of property, with or without accrual, allowing for the planning of their affairs. In the case of life partners, no joint estate can exist and what each partner acquires is his or her own. What may seem relatively simple at the time, quickly becomes complex at the dissolution of the partnership where partners have jointly bought property or where one partner has contributed to the living expenses during the subsistence of the life partnership.

• Inheritance
It is possible that a situation may arise, where one spouse dies without executing a will. Should this unfortunate event occur, the Intestate Succession Act allows for the surviving spouse of a marriage or partner to a civil union to inherit as an heir under the deceased’s estate. Case law has extended this provision to include life partners of the same sex who are in a permanent life partnership. Unfortunately, the ruling did not extend to include heterosexual life partners and therefore opposite sex life partners will not be able to inherit should their partner pass away intestate.

Although similar, if not identical, obligations and duties exist between marriages and domestic relationships, the same is not true concerning their rights in law. Consequently, cohabitating partners may find themselves in a vulnerable situation comprising of serious financial difficulties on top of the hardship one already faces on termination of the relationship.

Fortunately, there are ways in which partners in a domestic relationship can minimise the already discussed pitfalls. The partners can conclude a life partnership or cohabitation agreement in order to regulate various duties and obligations of their relationship and the consequences that follow upon termination of the partnership. If drafted properly, the cohabitation agreement can provide for the management of each partners’ proprietary interests and the maintenance of either partner should separation occur. It is also highly advisable that the partners execute a will in order to ensure the surviving life partner benefits should the other decease.

It must be noted however that life partnership and cohabitation agreements, unlike other marital regimes, are binding only on the individuals to the agreement and not third parties. Furthermore, the aforesaid agreements can become complicated by the difficulties faced by partners in trying to anticipate in the early stages of the relationship what property each partner will acquire, the contributions made towards assets or mortgage bonds, whether one party will cease employment in order to maintain the family household, the financial adjustments between the parties, the continuation of contractual debts incurred and a long list of other important aspects.

It is therefore crucial to seek sound legal advice on the options available and to consider the consequences of each option so that your attorney may carefully prepare the necessary agreement for the purpose of safeguarding yours and your partners interests and to prevent future uncertainty.

A note on the concept of common law marriage:

So you may be asking yourself - What about a common-law marriage?

Many South African’s have come across this term before and are mistakenly led to believe that unmarried partners who have been living together in a permanent relationship for several years and who share the same attributes as their legally married counterparts are considered to be married in terms of the common-law. This belief is incorrect and despite the prolonged duration of the relationship or the fact that it may resemble a marriage, unmarried partners who have been living together for several years and who have not entered into a life partnership or cohabitation agreement remain unmarried and their union is unrecognised in terms of the law.

That having been said, unmarried partners who have not entered into a life partnership or cohabitation agreement and who have been living together for several years are not without a remedy should the relationship terminate. In this regard, the aggrieved party may apply to court in an attempt to prove that a universal partnership existed between the parties. The party would have to persuade the court however that the following requirements were met:

  • that each of the partners brought something into the partnership (i.e. the relationship), such as money, labour or skill;

  • that the partnership was carried on for the joint benefit of the parties; and

  • that the object of the partnership was to make a profit.
  • If a party is successful in establishing the above, the said party would have a claim to the assets which the parties owned prior to and during the universal partnership.

    We strongly suggest that should you not be interested in marriage and are rather considering cohabitation, that you enter into a life partnership or cohabitation agreement as in the absence of a such an agreement, you will have to prove that a universal partnership existed between you and your partner, which universal partnership is difficult to prove and would most likely result in lengthy, acrimonious litigation and high legal costs with no guarantee of success.

    Author: Ryan Bouwer

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