A client asked me how long a couple must
live together, before they are regarded as being in a common-law marriage.
Common-Law
marriage
In South
African law, there is no such thing as a common-law marriage, no matter how
long a couple may live together. Their cohabitation does not create any
automatic legal rights and duties between them. This is a common
misunderstanding.
Cohabitation Agreement
In an age when most marriages fail,
parties with a trail of prior relationships and marriages behind them may
prefer to live together, rather than marry. Same-sex or heterosexual partners
who choose not to get married should sign a domestic partnership (also called a
life partnership or cohabitation) agreement to protect them should their
relationship end. It is cheaper than ending up in court!
A widely-used definition describes “domestic
partners” as “two adults who share an emotional, physical and financial
relationship like that of a married couple but who either choose not to marry
or cannot legally marry. They share a mutual obligation of support for the necessities
of life.”
Cohabiting couples do not have the same rights
as married couples under the law, so it makes sense to set out at the outset of
the relationship what the division would be if the cohabitation breaks down.
The life partnership agreement will provide for
such things as:
·
Movable
property: Provide for a fair division of
household goods on dissolution. A good idea is to list the respective assets of
the parties at the start of the relationship and agree whether or nor not these
become joint assets. Similarly, keep a register of assets acquired during the
relationship and agree whether these too become joint assets.
·
Immovable
property:
a. Who owns
the home that you live in? If it is co-owned, deal with the proportion of your
respective shares and who gets what, on dissolution.
b. If it is solely
owned, you may consider compensating the non-owner for improvements done to the
property at his or her expense.
c. If the common
home is leased property, provide for who stays on when you part company.
·
Financial
arrangements:
a. During
the relationship, will you operate a joint bank account? Who will pay the
household and living expenses? Who will own cars and other assets? Who will
enter into credit agreements? Will you take out life insurance on each other’s
lives?
b. When the
relationship ends who pays the debts of the partnership?
·
Children:
If you have or intend to have
children, agree whether one partner is to support the other party during
the relationship if such a partner is unemployed or staying home to care for
small children born from the relationship.
Universal Partnership Agreement
If parties live together but don’t conclude any form of agreement
regulating their respective legal rights and obligations, on dissolution of the
cohabitation, a party that feels he or she is entitled to something from the
other party (who disagrees), must go to court, at some expense, to prove that
entitlement. To do so, the party must prove they were in a ‘Universal
Partnership’, so that one party is entitled to certain property and assets of the
other party, on separation.
Because
the existence of a universal partnership is difficult to prove, it makes sense
to conclude a life partnership agreement.
If you did
not, and need to approach a court to prove the existence of such a partnership
you must show that:
·
The aim of the partnership was to
make profit.
·
Both parties must have contributed to
the enterprise.
·
The partnership must operate to
benefit both parties.
·
The contract between the parties must
be legitimate.
·
There must be valid consent.
·
There was an intention to create a
legally binding partnership agreement.
If a party cannot prove the existence of such a partnership, he or she
may walk away with nothing, even if the parties lived together for years.
