Cohabitation, often referred to as living together, common law marriage, or a domestic partnership, lacks legal recognition under South African law. This absence of recognition means that cohabitants do not have the same legal rights and responsibilities as married couples, irrespective of the relationship’s duration. Cohabitation involves individuals of any gender living together without being legally married, a practice historically known as extramarital cohabitation. Despite its increasing prevalence in South Africa, cohabitation does not confer the legal benefits and protections that come with marriage.
Lack of Legal Recognition and Protection
In South Africa, cohabiting couples do not enjoy the legal rights and protections afforded to married couples. Unlike marriage, which is governed by specific laws that ensure individual protection, cohabitation lacks such legal safeguards. Cohabitants are not legally obliged to support each other and cannot claim maintenance. Banks typically do not allow joint accounts for cohabitants, and any debts incurred are the sole responsibility of the account holder. Property rights are also strictly based on ownership, and courts do not have the authority to divide property equitably as they would in a divorce.
Judicial Intervention and Universal Partnerships
Despite the absence of statutory recognition, South African courts have occasionally provided relief to cohabiting couples by recognizing universal partnerships. A universal partnership can be established when parties act as partners in all material respects without a formal agreement. However, proving such a partnership is challenging, requiring evidence of mutual contributions toward a common, profitable enterprise. When recognized, courts may award a share of assets acquired during the partnership’s duration.
Limited Legal Recognition in Specific Legislation
Certain pieces of legislation do provide some recognition for cohabitation. For instance, the Domestic Violence Act and the Medical Schemes Act include provisions that apply to cohabiting relationships. The Income Tax Act and the Estate Duty Act treat cohabitants as spouses for tax purposes, recognizing permanent same-sex or heterosexual relationships. Additionally, life insurance policies may name partners as beneficiaries. However, these recognitions are limited and do not equate to the comprehensive legal protections available to married couples.
Inheritance Rights and the Constitutional Court Ruling
A significant development occurred in 2021 with the Constitutional Court’s judgment in Bwanya vs. Master of the High Court Cape Town and Others. This ruling addressed the exclusion of opposite-sex cohabitants from the Intestate Succession Act and the Maintenance of Surviving Spouses Act, deeming it unconstitutional. The court expanded the definitions of “survivor,” “spouse,” and “marriage” to include permanent life partnerships in the Maintenance of Surviving Spouses Act, thereby granting cohabitants inheritance and maintenance rights upon a partner’s death. This landmark decision marked a pivotal step towards recognizing and protecting the rights of cohabitants in South Africa.
Cohabitation Agreements
To mitigate the lack of legal protection, cohabitants can enter into cohabitation agreements or domestic partnership agreements. These contracts outline the financial arrangements during the relationship and the division of property upon its termination. Courts generally uphold these agreements as long as they are not illegal, immoral, or against public policy. Without such agreements, cohabitants must rely on proving a universal partnership or invoke contract, property, or unjust enrichment laws to enforce their rights.
Conclusion
While cohabitation remains unrecognized as a legal relationship under South African law, leaving cohabitants without the statutory protections available to married couples or civil union partners, there have been significant legal strides towards greater recognition and protection. The draft Domestic Partnerships Bill, once enacted, promises to address many current legal gaps. The landmark Constitutional Court judgment in the Bwanya case represents a crucial step towards equal treatment by acknowledging the rights of surviving partners in permanent life partnerships. However, cohabitants are advised to proactively safeguard their rights through cohabitation agreements, as the existing legal framework still falls short of providing comprehensive protection compared to marriage or civil union.
This information serves as a general guide to South African law. Individuals are advised to seek personalized legal counsel. While efforts are made to ensure accuracy, Harvey & Co and its affiliates disclaim liability for any consequences arising from its use.
