There is a common myth that two people who start a romantic relationship and have lived together for many years have what is called a “common-law marriage,” which means that their relationship has the status of a legal marriage. However, this is false and has no basis in South African law. How exactly the myth began, no one seems to know. However, this is very problematic because the parties to such a relationship often mistakenly believe that their relationship includes all the rights and obligations of a legal marriage. When the relationship ends (by separation or death), the parties are shocked and dismayed when they discover that they have no rights against their deceased partner or estate. Let`s take a closer look at the rights these parties thought they had with respect to their “common-law relationship.” If you live or plan to live together, it makes more sense to consult a family law lawyer and have a cohabitation agreement drafted for both of you – that way, you`ll definitely have some form of protection. Under South African law, there is no such thing as a de facto marriage, regardless of how long a couple lives together. Their cohabitation does not automatically create legal rights and obligations between them. This is a common misconception. Another example is the Surviving Spouses Maintenance Act No. 27 of 1990. The spouse of a legitimate marriage whose partner dies is entitled to maintenance on his or her estate.
Again, however, a “spouse” in a “common-law marriage” cannot claim support on his or her partner`s estate. The law does not apply to partners in such a relationship. Living together or living in a common-law relationship is not what people think. Two people begin to live together – usually in a domestic and sexual relationship. When it comes to an end, you don`t continue with anything other than what you have left. Suppose you decide that living together is not the right way. After resisting it for many years, you and your partner decide to take the plunge and take the traditional route. And so you engage, in the midst of a lot of fanfare and celebrations (before COVID-19). But you want to know what the legal status of a commitment is. Is it a legally binding contract? Although common-law relationships do not have the same rights as partners in a marriage or registered partnership, some laws consider cohabitation and marriage on an equal footing.
Please do your homework. Many people believe that by living together for a period of time, they are entering into a common-law relationship. There is no such marriage and people are only protected by a cohabitation contract. IF THEY SEPARATE: A domestic partner is not entitled to his partner`s pension rights in the event of termination of his or her common-law relationship. In the case of pension funds, cohabitation is recognised and a spouse may receive benefits from the pension fund if he or she is appointed as a partner by the member. A spouse who is considered a dependant under the rules of this fund may also receive pension benefits. Cohabitation refers to a heterosexual or same-sex couple living together without being legally married. While many people have believed that cohabitation is a de facto marriage, it is not recognized as a legal relationship under South African law. There is therefore no law regulating the rights of the parties in a cohabitation relationship.
People living in a form of cohabitation do not enjoy the same rights as a legally married couple, regardless of how long they live together, while living together is increasingly becoming the norm in South Africa. A client asked me how long a couple must live together before being considered in a common-law marriage. Since the term “common-law” is misleading, and there is none, what do you call an unmarried couple living together in marriage? Such a relationship is commonly referred to as “cohabitation” and, with two exceptions, the relationship does not create any legal rights and obligations between the parties. Cohabiting couples do not have the same rights as married couples under the law, so it makes sense to explain at the beginning of the relationship what the separation would look like if the cohabitation broke up. But what if something goes wrong? What happens if one of the parties decides that they no longer want to go all the way? Can the other party force the renegade party to marry? After all, they have a legally binding contract and in any other type of contract, one party can force the other party to comply with the contract. The answer, of course, is no – neither party can force the other party to marry. Since persons living together do not have the same rights as married couples, in the event of the death of one of the partners, the other partner is excluded from the estate of the deceased partner under the Succession Act if the deceased partner died by the execution of a will. However, nothing prevents one partner from designating the other partner as a beneficiary who will inherit according to his last wishes and will. In addition, the surviving partner does not have a maintenance claim within the meaning of the Surviving Spouses Maintenance Act against the estate of the deceased partner, as this is an application that can only be made by a legally married spouse.
Common-law marriage – Contrary to popular belief, South African couples living together are not legally married common-law after a certain period of time. In South Africa, banks generally do not allow joint bank accounts for cohabitants and allow co-signature rights, and therefore all debts of the bank account owner are executed on said bank account. The other partner ends up with the painful practice of having to prove that they have their money in that bank account, or has to claim their money against the indebted partner. If the partner in whose name the bank account is managed has an overdraft facility, the money will be deducted from the bank account, regardless of which partner holds what share and in what proportion. In South Africa, regardless of the length of a couple`s lifespan, the law does not recognize the validity of common-law relationships. Their cohabitation (cohabitation) does not automatically create legal rights and obligations between them. The rights of a spouse are not equivalent to those of a spouse registered in a conjugal marriage. With respect to inheritance law, if there is no will and one of the partners dies in a common-law marriage, the common-law spouse has no interest in the property or property left behind.
Therefore, it is important to have a will written to make arrangements for your partner. Home » Family Law » Cohabitation, betrothal and the myth of common-law unions The technical definition: – A spouse is a partner in a recognized marriage, without being officially registered with a national or religious register, but on the basis of custom and reputation. These conditions govern the financial relationship and other matters while the couple is together. The agreement should also include carefully crafted terms about what happens if the couple separates. For example, if the “matrimonial home” is jointly owned by the partners, is it sold upon separation, at what price, perhaps at auction? Under the law of legal succession, if one of the spouses dies without a will, the other spouse automatically inherits 50% of the deceased spouse`s estate or 50% of the joint estate if he or she is married in community of property. Now imagine an elderly woman in a so-called “common-law marriage” whose “husband” dies suddenly. She mourns his loss. To make matters worse, she discovers that she will not inherit a penny from her husband`s estate, as the laws of legal succession do not apply to her “common-law marriage.” The Civil Union Act 2006 is an Act of the South African Parliament that legalizes same-sex marriage.
It allows two people, regardless of gender, to enter into a marriage or registered partnership. Civil partnerships can be formed by opposite-sex couples and same-sex couples and have the same rights, duties and legal consequences as marriages. However, the partner whose name appears on the opened bank account remains responsible for all sums due to the bank in the event of an overdraft or loan. If one of the partners dies without a valid will, the other partner does not have an automatic right of succession. Overall, all the excitement, comfort, and reward of an unformalized cohabitation only lasts for the duration of the relationship. It is important to remember that parties living together do not automatically have the legal right to inherit from the other and no right to spousal support in the event of death, unless a will provides for it. A well-drafted cohabitation contract can therefore give unmarried couples considerable structure and predictability in their financial lives, which to some extent resembles the matrimonial regime of a married couple. Such an agreement is likely to contribute to the overall stability of such a pair. Suppose the lease contains a clause prohibiting the use of these premises by anyone other than the lawful tenant. In this case, the landlord has the right to terminate the lease if he finds that the tenant lives together or sublet.
What happens if the relationship ends without a cohabitation agreement? At a time when most marriages fail, parties with a record of past relationships and marriages prefer to live together rather than get married. Same-sex or heterosexual partners who choose not to marry should sign a domestic partnership (also called civil partnership or cohabitation) to protect them in case their relationship ends.