Common law question LAW CORNER

2016-12-07 06:02

I HAVE been living with my partner for many years, does that make me a common law spouse?

Unfortunately – no. 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.

In South Africa, however, common law marriage is not recognised – living together does not equate to a default marriage.

There is, however, a principle of universal partnerships which affords cohabitees­ to claim a share of the property acquired during the period of living together.

A universal partnership is an express or tacit agreement between two parties living together to share responsibilities and obligations in a permanent relationship without ever tying the knot.

This, however, does not mean that the parties involved enjoy automatic rights. When one of the parties (partners) dies without leaving a will, the surviving partner does not automatically become the beneficiary nor have maintenance paid to them.

The surviving partner must prove to the court that he or she was indeed in this relationship, and that he or she is owed something.

In a number of judgments, the requirements for a recognised partnership are set out. Universal partnerships are recognised when the following requirements are fulfilled:

• Each party brought something into the relationship.

• The partnership continued for their joint benefit.

• The object of acquiring the property was to make profit.

A written contract between the parties in a universal relationship will force a court to recognise and enforce the terms of the agreement therein.

A universal partnership can be terminated by:

• Death of one partner

• Agreement by both parties to terminate it

• Insolvency of one of the parties.

To protect each partners interests, cohabitees are advised to instruct an attorney to draft a universal partnership agreement clearly enunciating the terms of the agreement which must encompass the following:

• Division of their property

• Duty and support to each other

• The right to share in each other’s property during the term of the relationship

• Terms with respect to termination

• The right to inherit from each other’s estate should either party die without a Will in place.

It is strongly advised that a valid will be drawn up by both parties to govern and protect the succession of parties.

The Children’s Act No 38 of 2005 would provide the parties with rights and responsibilities for any children conceived in a universal. It provides that a father of a child who is not married to the child’s mother acquires rights and responsibilities to that child.

These include, among others, maintaining contact, acting as guardian, and contributing to the maintenance of the child.

Should you need any further information or assistance, contact Whyona Sithapersad on 033 845 9700 or email whyona@

Join the conversation! encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions.

Inside News24

Partner Content
How data is changing investments

Technological disruption is rife in many spheres of business and given the quantity of data available, it’s no surprise that the way in which asset managers work is also changing fast.

Behind the sparkle

Alluring, beautiful and timeless - diamonds are some of the most sought after gems in the world and are a true testament of everlasting brilliance. Let us take you behind the sparkle to show you the history behind this coveted jewel.


Fascinating facts about dogs

Think you know a lot about dogs? How many of these facts do you know?



Out with the old dog, in with the new
Play with your pet when you're not at home
How to get rid of fleas
12 Cool cat facts
Traffic Alerts
There are new stories on the homepage. Click here to see them.


Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.

Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire network.


Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.