Common law marriage not recognised as a formal legal relationship

Common law “marriage” not recognised as a formal legal relationship

By: Natasha Archary

Living with your romantic partner without being married has become increasingly common practice, as more couples are opting to cohabitate rather than get marrieid today.

Angie Poole, Manager Estates, Business Restructuring at BDO South Africa joins Gugulethu Mfuphi on Kaya Biz to share more on why common law “marriage” is not recognised as a formal legal relationship.

Cohabiting may seem romantic and viewed as a step in the right direction towards a potential commitment one day, but there is no law in South Africa that regulated the rights of partners in a cohabitation relationship, regardless of how long they have been living together.

While many South Africans believe that by living together for a period of time you become common law “husband and wife”, the law doesn’t recognise cohabitation, and those in cohabiting relationships don’t have the same rights and protections as married couples.

This often leads to complex legal and financial complications which Angie Poole sees all too often.

“There’s no such thing as a common law marriage in South African law unfortunately, so it’s a total misconception.

To put it simply, couples who cohabitate doe not have the same rights as married couples. There’s certain laws that do recognise cohabitation for instance if you look at the domestic violence act, it includes the protection of cohabitating partners, the medical schemes act in the definition includes the definition of a partner.

Life insurance policies, if you are listed as a beneficiary you are entitled to inherit, but where the problem comes in is in the event of death, if your partner did not have a valid last will and testament then you cannot inherit because a domestic partnership is not recognised by the Intestate Succession Act.”

Without a valid will, your estate will be distributed to your closest relatives in a pre-determined order, which is set out in the Intestate Succession Act. Although the Act can get rather technical as to the exact order of inheritance, the basic line of inheritance applies as follows:

Firstly, your spouse and your children inherit in equal shares. Should you have no spouse, your children inherit equally. Inheritance treats adopted children equally to biological children.
Should you have no spouse or children still living upon your death, your estate is distributed equally between your parents.
Should either one of your parents predecease you, their share is distributed to their surviving children in equal shares.
Should you have no surviving parents, siblings, spouse or children, the estate falls to the nearest blood relative, which most often in this case, would be the grandparents in equal shares.

Before moving in together here are some of the factors that you and partner should consider:

Property – our love nest

Will the home you live in be co-owned, who will get what if the relationship doesn’t work out? If you are renting, who stays on and pays the rent when you part ways?
Do you move into one’s place or you find a new place that you both will like.

Children

In the event that you break up and you have children, who will be the primary care-giver of the children? Would the they move to stay with the primary care-giver, far away? Additionally, there is no obligation on cohabitants to maintain each other, and they have no enforceable right to claim maintenance.You need to also discuss the visitation rights and learn to co-parent with your partner should you break up. Also discuss what is the best way to raise the child together as co-parents.

Finances

Who pays for what in the house? Shared responsibilities work out easily if they are communicated. If there is any credit taken on behalf of the couple, for example, a car, whose responsibility will it be to pay it if there’s a breakup? Who does the car belong to? If there are any collective debts, who will pay for them if the relationship ends? Because there is no law that regulates cohabitation in south Africa, debt that is acquire for the relationship by one party will remain your debt and not affect your partner should you separate.

Insurance and policies

How insurance policies are managed should ideally be covered in the cohabitation agreement. This is to avoid finding yourself in a situation in which the policy has been terminated without consultation. Should your partner die, it could cause complications especially if you have children and there is no will in place. Ensure that you have policies and insurance for the children so that they can still be taken care of should you not be able to.

Cohabiting might make financial sense to you and your partner, and could be romantic, l however there are many more factors that you both need to consider. It’s important to have those uncomfortable conversations about the future and the eventuality of you breaking up.