There is an additional legal concept that can play a role in the life of an unmarried couple, the so-called “universal partnership”. This happens when a couple lives together and the following conditions apply to their relationship: if the parties live together but do not enter into an agreement that governs their respective legal rights and obligations, if the cohabitation is dissolved, a party who feels entitled to something from the other party (who does not agree), must go to court with some effort, to prove this claim. To do this, the party must prove that it was part of a “universal partnership” so that one party is entitled to certain assets and assets of the other party at the time of separation. Although South Africa`s laws are catching up with the rest of the world, especially Europe, there is still no mechanism to recognise cohabitation as a legally binding relationship. It is therefore up to the parties in such a relationship to ensure that they do the necessary work and prepare the necessary documents to protect their two rights in the cohabitation relationship. The parties may even include an explicit provision on the payment of maintenance in the event of termination. If one of the partners refuses to obey the agreement, the other partner can go to court for help. Cohabiting couples who fail to conclude a contract or cohabitation contract have no legal protection unless they can prove the existence of a universal partnership. What happens if the relationship ends without a cohabitation contract? A cohabitation contract can be concluded at any time before the end of the cohabitation relationship. However, it is advisable to sign a cohabitation contract before starting the cohabitation relationship to ensure that there is absolute security in the relationship from the beginning. Often, cohabiting partners believe that if they have been together for some time, a de facto marriage is formed by which they receive certain benefits. It`s not true.
In South Africa, living together has become more common in recent years and the number of partners is increasing by almost 100% every year. The content of a cohabitation contract depends on the needs of the parties. The parties may include any provision in the contract, provided that it is not illegal, violates the morality of the company or violates public order. Legal&Tax is your companion. Our experts can advise you on how to legalize your life relationship and protect your rights and interests by helping you make a will. Contact us for more information. There is a widespread myth that two people who live in a romantic relationship and have lived together for many years have a so-called “common law marriage,” meaning that their relationship has the status of a legal marriage. Another example is Act 27 of 1990 on the maintenance of surviving spouses. A spouse from a conjugal marriage whose partner dies has a maintenance claim against his estate. Here too, however, a “spouse” in a “de facto marriage” cannot claim alimony from his partner`s estate. The law does not apply to partners in such a relationship. A well-drafted cohabitation contract can thus provide unmarried couples with considerable structure and predictability in their financial lives, which in some respects resembles the matrimonial regime of a married couple.
Such an agreement is likely to contribute to the overall stability of such a couple. Unlike a marriage or civil association, which is structured by laws that protect each party to the relationship, living together does not offer such comfort. If a partner dies without a valid will, his or her partner has no inheritance tax under the Intestate Succession Act, 81 of 1987. Another important way to protect yourself and your life partner is to make sure your will is up to date. It should be borne in mind that cohabitants are not entitled to property in the deceased estates of their respective partners if the partner dies without leaving a will. On the other hand, a person can make any bequest in the form of a will, and in this way, cohabiting parties can ensure that their partner is taken care of in the event of death. In the case of pension funds, cohabitation is recognized and a common-law partner may receive pension fund benefits if designated as a partner by the member. A common-law partner who qualifies under the definition of a dependant under the rules of that fund may also receive pension benefits.
In South Africa, no matter how long a couple can live together, the law does not recognize marriages as valid under the common law. Their coexistence does not have the same weight as a civil association. Since the term “common-law marriage” is misleading and in fact there is no such thing, what do we call an unmarried couple living together in a marriage that resembles a marriage? Such a relationship is commonly referred to as “living together” and, with two exceptions, the relationship does not create any legal rights and obligations between the parties. Living together is an ancient concept in Europe and parts of America. However, South Africa has always been more conservative and Calvinist in its approach to these types of relationships. However, living together in South Africa is at an all-time high. Statistics have shown that fewer people marry and more people form cohabitation without getting married. The good news is that much of the uncertainty that exists in cohabitation relationships can be eliminated by entering into a cohabitation contract.
One of the misconceptions surrounding cohabitation of relationships perpetuates the idea that if you have lived with a person for a while, that relationship becomes a “de facto marriage.” Although many people refer to a cohabitation relationship as a common law marriage, there is no underlying legal concept that describes a common law marriage or its implications. Under South African law, there is no common-law marriage, regardless of how long a couple lives together. Their coexistence does not automatically create legal rights and obligations between them. This is a common misconception. Although common law marriages do not have the same rights as partners in a marriage or civil partnership, some laws take into account cohabitation and marriage or civil association at the same level: • Cohabitation is recognized under the Domestic Violence Act 116 of 1998. • The Medical Plans Act 131 of 1998 defines a dependant as including a “partner”. • With respect to the Income Tax Act,58 of 1962, and the Inheritance Tax Act of 45,45 of 1955, cohabiting couples are treated as spouses for the purposes of tax legislation, and the word “spouse” is defined as including a permanent same-sex or heterosexual relationship. • Cohabiting couples can designate the other as the beneficiary of a life insurance policy. .