Common law marriage: yes or no?

What sort of protection does the law afford to people living together on a permanent basis, but not under a legally recognised marriage or civil union? In answering this, is it important first to note that South African law does not recognise the concept of a “common law marriage”. Therefore, the amount of time that two unmarried persons spend living together does not translate into a “default” or “common law marriage”. Courts have in certain cases recognised that reciprocal duties flow from such permanent relationships, but this is not a given in every case.

Some disadvantages

Because “common law marriage” is not legally recognised,  unmarried persons who are cohabiting are not afforded the same protections that the law provides married persons. This means that there is no legal duty of support between unmarried cohabiting partners. Usually South African banks do not allow joint accounts for cohabitants. When one cohabitant dies without a valid will, the surviving cohabitant has no right to inherit under the Intestate Succession Act. What is more, a surviving cohabitant cannot rely on the provisions of the Maintenance of Surviving Spouses Act to receive maintenance on the death of their partner.

There are few protections for unmarried persons who are cohabiting. Unmarried cohabitants are therefore left in a very vulnerable position. When a permanent relationship comes to an end because of breakdown or death, it may leave one person in incredibly difficult circumstances.

If not common law marriage, then what? Domestic partnership agreements

If there is no legally recognised concept of “common law marriage” in South African law, and permanent relationships offer the cohabitants limited legal protection, is there anything that can be done to provide some layer of protection?

A way to ensure that there is some protection when the relationship ends (because of breakdown or death) is for the persons in the relationship to enter into a domestic partnership agreement. This is a contract that regulates the cohabitants’ affairs, for example regarding assets and maintenance. It can also include each party’s expectations regarding contributions to the joint household and matters regarding joint or individual ownership of various assets. The contract also affords an opportunity to iron out any issue that may arise in the future. The contract is enforceable between only the parties themselves. It does not affect the rights of third parties.

Domestic Partnership Bill

In 2008, the Domestic Partnership Bill was promulgated with the goal of dealing with matters relating to the above. To date, is has not become an act and is not law.

Need help?

If you need assistance in a matter related to any of the above, please do not hesitate to contact us at [email protected].

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