IS COMMON LAW MARRIAGES RECOGNISED IN SOUTH AFRICA?
COMMON LAW MARRIAGES SOUTH AFRICA
Common law marriage, a concept that refers to couples living together without being legally married to each other. There is common belief that if people cohabitate for a long period of time they enjoy the same marital rights as spouses in a marriage. The amount of time that a couple lives together does not translate into a default marriage, the “six-month rule” is unfortunately a total myth.
In South African law, there is no such thing as a common-law marriage – no matter how long a couple may live together. As such, couples who are in an unofficial domestic partnership are not automatically considered legal spouses regardless of how long they've been living together. Therefore, the legislative protection which married individuals enjoy, do not apply to them. A girlfriend or mistress for example is not legally entitled to any of the deceased's assets unless they're listed as a beneficiary on a will or life insurance policy, or if a child is involved.
This means that should you be living with someone, you are unfortunately not automatically regarded as your partner's spouse, even though you may have been living together for several years.
This also means that unless you are specifically recorded as an heir or beneficiary, you won’t be able to inherit from your partner either. It is therefore strongly advised that a valid will be drawn up by both parties to govern and protect the succession of parties.
It is also a good idea for couples to draft a written agreement (cohabitation or domestic partnership agreement), in which the rights and obligations of each party in the live-in relationship are clearly set out in order to protect them should their relationship end. In this way, you will know exactly where you stand with each other. Such an agreement should preferably be drafted by a legal expert.
There is however some legislation that places cohabitation and marriage on an equal footing for example:
- Cohabitation is recognised under the Domestic Violence Act for purposes of a domestic relationship;
- The Medical Schemes Act 131 of 1998 defines a dependant to include a ‘partner’;
- In terms of the Income Tax Act and the Estate Duty Act, cohabitants are treated as spouses for the purposes of tax legislation, and the word ‘spouse’ is defined to include a permanent same-sex or heterosexual relationship.
- Either partner in a cohabitation relationship may name the other as a beneficiary in a life insurance policy. The nomination, however, must be clear, because a clause in an insurance policy that confers benefits on members of the insured's ‘family’ may cause problems. And if a policy, for instance a car insurance policy, covers/excludes passengers who are members of the insured’s family, this provision does not operate to the benefit/detriment of the insured’s partner.
- A domestic partner may receive pension fund benefits as a nominee. A domestic partner may also receive pension benefits as a factual dependant if he/she qualifies as such under the definition of ‘dependant’ in the regulations or conditions of that particular fund. A domestic partner will, however, not be entitled to their partner’s pension interest on termination of their relationship.
- Under the South African Compensation for Occupational Diseases Act, 1997, a surviving domestic partner may claim for compensation if their partner died as a result of injuries received during the course of work, if at the time of the employee’s death they were living as ‘husband and wife’.