Today, more people are living together without getting married, which is also referred to as domestic partnerships, living together arrangements or cohabitation. These types of relationships are not recognised as a legal relationship by South African law.
A Civil Marriage:
A civil marriage is the most common form of marriage in South Africa. Any marriage solemnised under the Marriage Act of 1961 is referred to as a civil marriage and such marriage is between a man and a woman.
A Civil Union:
Civil Unions were introduced in South Africa by the Civil Union Act, 2006, which also legalised same-sex marriage. Civil partnerships can be formed by opposite-sex couples and by same-sex couples, and has the same rights, responsibilities, and legal consequences as marriages. Any reference to marriage in any law, including the common law, is deemed to include civil partnership in terms of the Civil Union Act; similarly, any reference to husband, wife or spouse in any law is deemed to include a civil partner. The law of divorce for civil partnerships is the same as that for civil marriages.
Domestic Partnerships:
In our modern society it is becoming more common for couples, regardless of gender, to live together in domestic partnerships, without ever getting married. Irrespective of the Iength of the relationship, little to no legal protection is provided upon the termination of such a relationship with regards to maintenance claims, property division or succession.
In other words, couples living together in cohabitation relationships do not have similar rights to institute claims against the other party upon termination as they would have in a marriage or civil union. This could leave financially dependent parties in unanticipated vulnerable positions.
Maintenance claims
The Maintenance of Surviving Spouses Act entitles a surviving spouse of a marriage, and a surviving civil partner of a civil union, to institute a claim for maintenance against the estate of the deceased. This provides for a claim of any reasonable maintenance needs that they cannot provide for by their own means, until such time that they remarry or pass away.
- Parties of a domestic partnership should note that this protection does not extend to domestic partnerships, and thus no such maintenance claim can be made. Should the Domestic Partnership Bill be enacted in the future, section 28 will offer such an opportunity to claim for maintenance. However, at this stage no such protection is afforded.
Property division
Parties to a marriage have a choice of three matrimonial property regimes. Simply put this is to be married either in community of property, or out of community of property with the accrual or out of community of property with exclusion of the accrual. Each property system will have different consequences flowing from it, either by law or contractually due to an Antenuptial contract.
- However, no property regimes exist for domestic partnerships, and as a result no division of the estate can be enforced in terms of any of the above regimes.
- The Supreme Court of Appeal has recently portrayed an increased willingness to extend contract-based legal protection to parties of a domestic partnership. Contracts can be concluded by parties in domestic partnerships to govern aspects such as division of property upon termination of the partnership.
- Although these types of contracts are legally enforceable, they may give rise to potential problems. The contract may be concluded solely for the benefit of one of the parties, or circumstances may occur that the parties had not anticipated when the contract was drawn up. In practice however, it seldom happens that parties to a domestic partnership actually enter into a contract. This may be due to a mutual decision, or due to the fact that parties did not foresee a need for such contract.
Intestate succession
In terms of the Intestate Succession Act, a spouse of a marriage will inherit if the deceased spouse dies without making a will. This has been extended to include partners of a civil union and customary marriage. Provision for inheritance by a partner of a permanent same-sex partnership has also been made in terms of this Act.
- This has however not been extended to the termination of heterosexual domestic partnerships, and thus no claim can be made in terms of the Intestate Succession Act on the estate of a deceased partner of a domestic partnership.
Estate planning
While unmarried couples do not benefit from laws that confer certain rights to married couples, such as the automatic transfer of assets to a surviving spouse, they are free to craft estate planning documents securing their partner’s rights. This means that your unmarried partner may name you as an heir or legatee in his / her will.
Also, the property division process after divorce will not apply when unmarried couples part ways. This means that you may want to consider devising an agreement with your partner to protect your property rights. If you make a legally valid contract, it can be enforced by a court even though it is not part of a formal divorce proceeding.
Children
On the other hand, unmarried couples can ensure that they are considered the legal parents of any children born in their relationship. Listing the names of both parents on a child’s birth certificate will achieve this goal, although an unmarried father may need to sign a certificate acknowledging his paternity.
The child will be eligible for government benefits, and he or she can bear the last name of either parent. If the relationship ends, each parent will have an equal right to spend time with the child and make important decisions regarding the child, unless a court rules that one parent should not have that right.
- An unmarried couple also can adopta child together, although they may face more obstacles from adoption agencies than a married couple would.
- If one person in the couple has biological children from a previous marriage, the other person may be able to adopt those children as his or her own.
The courts may come to the assistance of a party when proven that an express or implied universal partnership exists. The courts may award how each party may share in the assets he/she has acquired together during their relationship.
The following requirements must be proven to the court’s satisfaction:
- The aim of the partnership must be to make a profit meaning that both partners contributed to a specific joint venture in the form of labour or capital or skill;
- Both parties must contribute to the joint venture to make a profit;
- The joint venture must operate for the benefit of both parties;
- The contract between the parties came into existence and is legitimate.
Some legislation afford protection to domestic partnerships, and here is a few (and this is not an exhaustive list):
The Domestic Violence Act affords equal protection to a partner in a domestic partnership;
A dependant on a medical aid scheme, may include a partner;
Either partner may approach the Maintenance court for an order of maintenance in respect of their minor child/children born from a domestic partnership. The legal duty of support in respect of child maintenance between unmarried parents exists on equal footing as with married parents.
If nominated by your partner, you may receive pension fund benefits.
Simpsons Attorneys
Simpsons Attorneys Inc. was established in 1998 and is a vibrant and dynamic firm of attorneys in Cape Town specialising in personal injury law and family law. We operate on a no-win, no fee basis.
Personal injury claims stem from motor vehicle accidents, medical negligence, as well as product and public liability. Family law includes divorces, maintenance orders, parenting plans, relocation plans, domestic violence and protection orders.
As some of the most talented and specialised attorneys in the Cape Town area, we are proud to consider ourselves as #AttorneysWithHeart – we will always take your personal needs into consideration, alongside your legal journey.
Find us at: www.simpsons.co.za
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