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@

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