In South Africa there is no such thing as a common law marriage and living with your partner does not give rise to any special legal consequences, irrespective of how long you have lived together or whether you have children or not.
Similarly, the general principles of family law do not afford unmarried parties supportive and protective measures even if they have been living together for a significant period of time.
Further to this, engagement, which is essentially a promise to marry, also does not have any effect in creating obligations between couples living together. There is no obligation on partners living together to maintain one another after a break-up, nor would either party be automatically entitled to a portion of the other party’s estate in the event of dissolution of the relationship, whereas married parties, irrespective of the matrimonial property system, automatically have this claim.
However, you are not entirely unprotected if you are unmarried. It seems that protection may be sought at a commercial level – provided that either party can meet the requirements.
This is confirmed in Butters v Mncora where the court ruled that Mncora was entitled to a portion of Butters’ estate, despite them having lived together for 20 years but never marrying, as she managed to prove the existence of a Universal Partnership.
Accordingly, parties living together may ensure protection and support if they enter into a Cohabitation Agreement or a Universal Partnership Agreement setting out specific terms of the relationship, division of assets and possible maintenance/support in the event of a break-up.
It is clear that the laws that serve to protect families are stagnating, as they are still particularly exclusionary towards the wider definition of families/relationships, thus resulting in a less-than-just outcome for parties living together that are unmarried. It is imperative that these laws be revised to accommodate the modern times we live in.
Article compiled by Rae Thomas, a candidate attorney from Malherbe, Rigg and Ranwell. Contact them on 011 918 4116.
