Life Partnerships, sometimes referred to as common law marriages, are not recognized as a legal relationship by South African law. These types of relationships involve the same sentimental ideas as a marriage would have, however they do not share the same legal consequences. Life partnerships usually refer to people who, regardless of gender, live together for a long period of time and have a reciprocal duty of support that a marriage does, without the legal protection that marriages do. There is, therefore, no law that regulates the rights of parties in a Life Partnership.
Although Life Partnerships do not share the same rights and legal consequences as partners in a marriage, the South African courts have on occasion recognized the duties and responsibilities that flow from Life Partnerships and have come to the assistance of couples who are involved in such relationships. The courts have, over the years, determined the requirements and circumstances that must exist for a Life Partnership to be recognized at a basic level. For a Life Partnership to be founded, the following circumstances must exist:
- The aim of the relationship must be to make a profit;
- The venture must be carried out for the joint and mutual benefit of the parties;
- Both parties must contribute to the relationship; and
- The relationship contract between the parties must be legal – the agreement must not contain illegal clauses, must not be against the morals of society or contrary to public policy.
The partnership agreement regulates the reciprocal duty of support and maintenance regarding finances during the existence of the relationship, ownership of assets acquired prior and during the subsistence of the partnership, regulates aspects of post-separation maintenance, and deals with the division of property, goods, and assets upon its termination.
If parties in a Life Partnership have not recorded an agreement to regulate their relationship, they can still approach the courts to seek some relief, although litigation of such nature is usually drawn-out, costly and unwelcomed. It is therefore essential that one concludes a valid will that will ensure that your partner derives some benefit from your estate, guarantee that they are able to carry on a living and safeguard against any liability that they would otherwise not be able to endure, as parties in a Life Partnership are not protected on death of a partner in respect of the Intestate Succession Act.
Author: Thato Mokone