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Love & Law: Know Your Rights

In South Africa there is a growing trend of cohabitation or domestic partnerships, where couples choose not to go the traditional route of entering a marriage but live together in a domestic partnership.

In such a case, what rights do you have in your domestic partnership relationship?

Although not as comprehensive as those afforded to married couples or those in registered civil unions, there are some rights afforded to couples cohabiting in South Africa.

Recognition of Domestic Partnerships:

While there is no specific legislation governing domestic partnerships in South Africa, the courts have recognized the concept of domestic partnerships in certain cases. If a couple can prove that they have lived together in a stable and committed relationship akin to marriage, they may be entitled to certain rights and protections, particularly in relation to property and support obligations.

 

In the judgment of Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51, Madlanga J, stressed that permanent life partnerships are a legitimate family structure and are deserving of respect and given recent developments of the common law, entitled to legal protection. 

Property Rights:

South African Courts have recognized the principle of unjust enrichment, which may apply to cohabiting couples. If one partner can show that they have contributed financially or otherwise to the acquisition or improvement of the other partner’s assets or property, they may have a claim to a share of those assets or property upon the dissolution of the relationship.

Maintenance:

Cohabiting partners may have a duty to support each other financially in the future, particularly if one partner is in need of assistance and the other is able to provide support. This is however not yet supported by legislation or majority case law, but a developing field in family law at the moment.  While there is no automatic right to maintenance for cohabiting partners, they may be able to claim maintenance under certain circumstances, such as where there is a child born of the relationship or where one partner has made sacrifices for the benefit of the other.

In the minority judgment in Volks, it was indicated that there are two groups of cohabitants whose duties to support one another deserve legal protection:

 ‘…The first would be where the parties have freely and seriously committed themselves to a life of interdependence marked by express or tacit undertakings to provide each other with emotional and material support…’

The legal duty of support here is based upon recognizing and enforcing the parties’ undertakings or agreements. In the second group, the law recognizes that the duty arises:

‘…from the nature of the particular life partnership itself. The critical factor will be whether the relationship was such as to produce dependency for the party who, in material terms at least, was the weaker and more vulnerable one (and who, in all probability, would have been unable to insist that the deceased enter into formal marriage). The reciprocity would be based on care and concern rather than on providing equal support in material or financial terms…’

More regard is certainly to be had in the matter of duty of maintenance when a life partnership terminates, and it is certainly interesting to observe the South African law evolving and progressing along with the times.

Inheritance Rights:

In the absence of a will, cohabiting partners may have limited inheritance rights under the laws of intestate succession. However, these rights are generally not as extensive as those of married couples or registered civil partners. It is therefore important for cohabiting couples to have a will to ensure that their assets are distributed according to their wishes upon their death.

The landmark case of Bwanya v Master of the High Court, Cape Town and Others (CCT 241/20) dealt with the issue of constitutional invalidity concerning the Intestate Succession Act and the Maintenance of Surviving Spouses Act. The applicant in the matter had been in a committed intimate relationship with the deceased before his death, and the couple had intended on entering into lobola negotiations, and thus a valid customary marriage, shortly before the deceased passed away.

The applicant argued that the specific sections in the Maintenace of Surviving Spouses and the Intestate Succession Act discriminated against her on the grounds of sexual orientation, marital status, gender, dignity and equality. Furthermore, that the law deals with parties to a same-sex life partnership and opposite-sex life partnership differently insofar as previous advances in law make provision for parties in a same-sex life partnership to inherit from one another through the Intestate Succession Act even after the Civil Union Act 17 of 2006 was enacted allowing same-sex partners to marry. The court agreed with the arguments placed before it by the applicant and held that parties in a life partnership should be afforded respect and legal protection.

Domestic Violence Protection:

Cohabiting partners may avail themselves of the protections offered by domestic violence legislation in South Africa. If one partner is subjected to domestic violence by the other, they may apply for a protection order from the court to prevent further abuse.

Conclusion:

It’s important for couples in a domestic partnership or cohabitative relationship to be aware of their legal rights and obligations, particularly in relation to property, support, and inheritance. Consulting with a qualified attorney who specializes in family law can provide guidance on these matters and help couples to protect their interests. Additionally, couples may consider entering into cohabitation agreements to clarify their rights and obligations during the relationship and upon its termination.

 

Contact us today for more information at 041 517 5555 or reception@rossouwinc.co.za

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Disclaimer: Information provided in this article does not and is not intended to constitute legal advice. All information, content, and references contained in this article are for general informational purposes only and may not constitute he most up-to-date legal or other information.