C&A Friedlander Attorneys

1. What is it?

Not every couple desires to get married in terms of the Marriage Act 25 of 1961 or Recognition of Customary Marriages Act 120 of 1998 or enter into a civil union in terms of the Civil Union Act 17 of 2006, while others may not have the choice to do so. Instead, some couples live together, in a monogamous committed romantic relationship similar to a marriage, without legally formalising it. Such relationships are known as permanent life partnerships or cohabitation relationships.

With permanent life partnerships on the rise in South Africa, it is important to understand the legal consequences of these relationships and how they differ from legally recognized marriages or civil unions.

2. Does a permanent life partnership enjoy protection from the law?

People often refer to permanent life partnerships as a “common law marriage”. A common law marriage is a concept recognised in some foreign jurisdictions, in terms of which a relationship is legally recognised as a marriage after a couple lives together for a specified period of time. This is not applicable in South Africa.

In fact, permanent life partnerships / cohabitation relationships are not legally recognised as marriages in South Africa, regardless of the duration and nature of the relationship.

3. Bwanya decision

Initially, couples in permanent life partnerships enjoyed no legal benefit. Over the years, the courts afforded ad hoc protection to same sex couples in permanent life partnerships. This was extended to heterosexual couples, in very specific circumstances, based on the agreement reached between the couple.

In 2022, in the matter of Bwanya v Master of the High Court, Cape Town the Constitutional Court confirmed that it was unfair discrimination to treat heterosexual and same sex couples in permanent life partnerships differently.

As a result of the Bwanya decision, provided that if the parties in a permanent life partnership reciprocally supported one another in a familial setting (financially, emotionally, taking care of the household and children), upon the death of one of the parties, the other partner is:

  1. Entitled to inherit as a “spouse” in terms of the Intestate Succession Act 81 of 1987 (i.e. where the deceased passes away without having concluded a valid will)
  2. Entitled to claim maintenance as a “spouse” in terms of the Maintenance of Surviving Spouse Act

The protection afforded to all couples in a permanent life partnership only finds application upon the death of a partner and is therefore limited.

During the subsistence of the relationship, the parties have to rely on the agreement/s concluded between them to regulate their relationship. Examples of agreements they may have concluded include a cohabitation agreement, which regulates the terms of their relationship, a co ownership agreement or an agreement of sale / title deed insofar as immovable property is concerned.

Upon the dissolution of a permanent life partnership, there is no automatic right to claim “spousal” maintenance or a share in the other parties’ estate. There is no automatic right to share in the other partner’s pension as a “spouse” or a life policy.

4. Universal partnership

If a partner in a permanent life partnership can prove the existence of a universal partnership (as agreed in writing or tacitly – proved by the conduct of the parties), a court can order a distribution of the assets of one of the partners to the other.

In broad terms, a universal partnership arises in a permanent life partnership when the partners in such relationship pool their efforts and resources for their mutual benefit. Very specific requirements, which can be difficult to prove, must be met before a court will make such distribution order.

5. Key take away

The law on permanent life partnerships is evolving, with legal reform on the horizon.

To ensure that their rights are protected, parties should conclude a cohabitation agreement which properly regulates their relationship. The agreement will regulate aspects such as how they’ll manage their finances and property while living together and what happens if they split up. This can include how to divide property, handle living expenses, and whether any maintenance will be paid after their relationship terminates. The existence of a universal partnership and the agreement pertaining thereto should also be recorded to avoid uncertainties.

Parties should also ensure that their wills are updated, and that the wording of any policies is specific enough to allow their partners to benefit.

C&A Friedlander can assist with co-habitation agreements and advice pertaining to these relationships. We can also assist with drafting / updating your will.

Contact us for further details. https://caf.co.za/contact-us/

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).