Currently there exists insufficient legal protection for life partners. Be aware of the pitfalls and of the current options available for protecting yourself.
More and more partners in a romantic relationship are opting, for various reasons, to live together (cohabit) as opposed to getting married or entering into a civil union. Spouses are endowed with many rights and duties and enjoy substantial protection under the law. Many people mistakenly believe that when you live together a “common law marriage” comes into being and you attract the same legal rights, duties and protection. As the law stands now in South Africa, this is not the case.
Despite the fact that some legislation extends certain benefits to life partners and the courts having extended some benefits to same sex life partners, disadvantages still exist to being a cohabitee or life partner. An example is that there is no automatic right to a duty of support. Presently, the law is also uncertain regarding life partners qualifying as heirs should a partner die without a valid will with some experts arguing that no life partners qualify and others arguing that only same sex life partners qualify.
Many couples live together for many years and even have children together. During this time, one life partner could build up a substantial estate while the other has accumulated few or no assets and has either limited or no income due to the arrangement between the parties or otherwise. Suddenly, the wealthier party walks out of the domestic relationship, usually into the arms of a third party. Legal remedies enjoyed by spouses are not automatically available.
Universal partnerships and wills
The courts have sometimes come to the rescue in such cases by applying a universal partnership principle, but be warned this is not a solution to be relied on. The court case will be costly and there are very specific and difficult requirements that have to be proved to the court for you to succeed, such as the intention of making a profit.
Wills are a means of providing for a cohabitee on the death of a life partner, but bear in mind that wills can be changed at the whim of the testator. This offers no protection for a relationship that is terminated prior to death.
The lawmakers have realised that the law needs to protect cohabiting parties and the Domestic Partnership Bill of 2008 was formulated; however, it still has not been gazetted into law at the time of the writing of this article.
Clearly, cohabitees need protection as they can be very vulnerable. At this time, the best solution would be to execute a cohabitation agreement setting out, for example, the rights and duties between the parties; who gets what assets on the dissolution of the relationship; which assets are jointly owned; financial contributions and maintenance arrangements. It is important to note that these agreements must be very thorough as one can only rely on what is set out in the agreement. Also remember to keep proof of contributions made and of the purchasing of assets.
It is definitely worth turning to a specialist professional for the drafting of such agreements. The advantage with these agreements is that, in the main, it is easy for professionals to give you a precise quote so that you are able to compare between reputable professionals and accommodate your budget.
Civil Union Act 17 of 2006
Heaton J, South African Family Law (3ed) 243 -254