Life Partnership Agreements
Because their relationship is not recognised by South African law as a marriage, they do not have the rights and duties married couples have, regardless of the duration of the relationship. Therefore, the assumption that if you stay with your partner for a certain amount of time, a common law marriage comes into existence whereby you will obtain certain benefits, is incorrect.
A few examples of the non-protection of cohabitants include the following: when a cohabitant dies without a valid will, their partner has no right to inherit under the Interstate Succession Act; a cohabitant cannot rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance on the death of a partner, and there is no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance.
Although legally cohabitants do not have the same rights as partners in a marriage or civil union, the South African courts have on occasion come to the assistance of couples by deciding that an express or implied universal partnership exists between them. A universal partnership exists when parties act like partners in all material respects without explicitly entering into a partnership agreement. In these cases, where the relationship breaks down, the court awards a share of the assets acquired during the relationship to each party.
Cohabitants (regardless of their gender) are permitted to enter into a contract similar to an antenuptial contract that regulates their respective obligations during the subsistence of their union, as well as the patrimonial consequences of the termination thereof. Such agreements are referred to as life partnership agreements and will usually contain regulations regarding finances during the existence of the cohabitation relationship and deal with the division of property, goods and assets upon its termination. In most cases, our court will enforce life partnership agreements.
Cohabitants who fail to draw up a life partnership agreement or contract will have no legal protection, unless they can prove the existence of a universal partnership. It is difficult to prove a universal partnership and the following requirements must be proven:
- each party brings something into the partnership, whether in the form of money, labour or skill;
- the partnership is carried on for the benefit of both parties;
- the object is to make a profit; and
- the partnership is legal.
DANIËL VAN ZYL
ATTORNEY & CONVEYANCER
VAN ZYL KRUGER INC