In this day and age more and more parties in a romantic relationship (regardless of their sex) prefer not to get married and would rather live together.
It is important to note that a so called “common law marriage” is not recognised by the South African authorities, thus if you have lived with a person for any amount of time it does not constitute a marriage after any period of time.
The legal implications thereof can be far reaching if no life partnership agreement (also known as a co-habitation agreement) is entered into between the partners in the relationship.
Such an agreement will usually contain regulations regarding finances during the existence of the cohabitation relationship and deal with the division of property, goods and assets upon its termination. Parties may even include an express provision for the payment of maintenance upon termination. If one partner refuses to follow the agreement, the other partner can approach a court for assistance. In most cases, a court will enforce the agreement. Cohabitants who fail to draw up a cohabitation agreement or contract will have no legal protection, unless they can prove the existence of a universal partnership.
The contents and nature of a cohabitation agreement will depend on the needs of the parties. The parties may include any provision in the agreement that is not illegal, against the morals of society or contrary to public policy.
As no reciprocal duty of support between partners in a domestic partnership exists, there is no enforceable right to claim maintenance, either during or upon termination by death or otherwise of the relationship, unless maintenance is regulated in a cohabitation agreement. There is also no action for claiming damages in the event of the unlawful death of a partner.
There is no law that allows for a person’s pension assets to be transferred in a cohabitation partnership. A cohabitation agreement will have no effect either, as it would not be enforceable against the pension fund. Even those who are able to prove the existence of a universal partnership and a joint estate cannot share in their partner’s pension assets on termination of the relationship, as is the case with people who have registered their unions in terms of the Marriage Act or the Civil Union Act. It still needs to be decided by our courts whether or not this amounts to discrimination on the basis of marital status, especially since cohabitants can be awarded these assets on the death of their partners. Cohabitants also cannot bind their partners to contracts with third parties for household goods.
A partner may apply to court for an order to divide the property of the other partner in a fair manner. The partner who applies for the order must be able to show that he/she contributed, directly or indirectly, to the maintenance or increase in the other partner’s separate property during the relationship.
In the absence of a cohabitation agreement or a proven universal partnership, private property acquired by the cohabitants prior to their relationship belongs to the partner who originally acquired it and no community of property can be established. It therefore follows that a cohabitant who is not the owner of the property has no special right to occupy the common home. Cohabitation per se does not give rise to automatic property rights, but the ordinary rules of the law of contract, property and unjustified enrichment might be invoked by cohabitants to enforce their rights.
If there is no cohabitation agreement or proven universal partnership between the cohabitants, property bought during the relationship will belong to the purchaser thereof, unless it can be proven otherwise.
When a property is co-owned and registered in both cohabitants’ names, they each have an undivided share in the property and are joint legal owners of the property. They are also both liable for the expenses and losses associated with the running and upkeep of the property. The mortgage bond will be in both their names, thus they will be jointly and severally liable for paying the bond. If one of the cohabitants paid more than his/her share of the expenses, the difference may be recovered from his/her partner.
If one partner defaults on his/her share of the monthly bond installments, the bond holder can either obtain a judgment against both cohabitants for the full amount outstanding on the mortgage bond, or a court order to force sale of the property to cover the debt.
When the property is in both partners’ names, neither can evict the other from the property. One cohabitant may, however, approach the court to terminate the joint ownership and divide the property in cases where the cohabitants can’t agree. The court will normally appoint a receiver or liquidator who will dispose of the property by way of a private sale or public auction. The proceeds from the sale, minus the receiver or liquidator’s costs and expenses and those of the auctioneer or estate agent, will be divided between the cohabitants according to their respective shareholding. If one partner can prove that he/she contributed towards any improvements and should therefore receive a greater share, he/she may claim unjustified enrichment.
If, however, the property is registered in only one cohabitant’s name, the other partner has no claim or right to the property, and may be evicted, although is entitled to reasonable notice. In addition, the cohabitant who owns the property can sell it without notifying the other.
In a similar vein, if the cohabitants acquired goods together, they both have a legal right to such goods. Upon termination of the relationship, if the couple is unable to agree how to divide the goods, either may approach the court to institute a division of the assets. In such cases, the court will normally appoint a receiver or liquidator to sell the assets and pay the proceeds to the parties. The court normally has a wide discretion and will make an order that is fair and equitable under the circumstances.
There is no right of intestate succession (when someone dies without a will) between domestic partners, no matter how long they have lived together. A partner is not automatically regarded as an heir or dependent.
If the surviving partner is not named in a will, the surviving partner will be faced with the monstrous task of having to prove his or her specific contribution to the joint estate before entitlement will be forthcoming. Proving actual contribution is often extremely difficult, especially when a partner has died. Litigation is usually lengthy, costly and unwelcome, particularly at a time already fraught with emotional trauma.
There is no obstacle to making specific provision for a domestic partner in a will. A person is entitled to leave his/her estate to a partner even to the exclusion of his/her spouse.
It is thus of utmost importance to ensure that a life partnership is entered into to protect your and your partner’s interests.