Co-habitation and the law

Category: Matrimonial

25 January 2016  |  by Hayley Pillay

I was recently asked by a client to advise on the legal consequences of his “common law marriage”. His “wife” of 15 years had just passed on and had failed to sign her will. He was certain that he would still enjoy all of the benefits due to a spouse in terms of the intestate laws of South Africa.

My response:

Regrettably, I had to be the bearer of bad news when I informed him that he actually had no rights or claim against her estate in terms of our laws of succession.

My findings:

Cohabitation, also referred to as a common law marriage, living together or a domestic partnership, is not recognised as a legal relationship by South African law. Cohabitation generally refers to people who live together without being validly married to each other.

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, securing various legal rights, is not correct. To put it more simply, men and women living together do not have the rights and duties married couples have.

A survey done in May 2015 revealed that the number of marriages registered in South Africa has decreased every year since 2008. This survey also showed that cohabitation has become the more common choice and the number of cohabitants has increased every year since 2008. Reasons include less social pressure on people to tie the knot coupled with exorbitant costs of weddings today.

What you should do:

If your partner and you have decided to live together, but do not plan to get married, you should consider both the legal and financial risks.

The best way is to:

  • sign a cohabitation agreement which will help ensure that both you and your partner understand what your rights and assets will be if the relationship ends by death or separation; and
  • ensure that your wills are revised frequently and that you have adequately provided for each other in the event that one of you dies.

It is best to seek the assistance of an attorney who specialises in this field to ensure these documents are carefully drafted and validly executed.

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