The Fairy Tale Concept of the “Common Law Marriage” and Cohabitation
by Kristijan Madjarevic
There is a common notion that two people engaged in a romantic relationship who have been living together for numerous years are eligible to what is called “a common law marriage”, which means that their relationship has the standing of a legal marriage.
Many foreign jurisdictions follow this above-mentioned approach; however, this approach is not applicable in South Africa. This is extremely challenging as most South Africans believe that such a relationship includes all the rights and obligations of a legal marriage. When such a relationship is ended by either way of death or separation, the parties involved are often stunned and disheartened that they do not have any legal standing or any legal claim to their partner’s deceased estate.
Intestate Succession and Maintenance of Surviving Spouses
In terms of various laws in South Africa, such as Intestate Succession, where a spouse dies without a valid will and is married in community of property, the surviving spouse automatically receives half of the joint estate and qualifies as an intestate heir regarding the spouse’s half share. Individuals should note that regarding this notion of a “common law” marriage the parties are not entitled to inherit anything from their deceased spouse’s estate.
Similarly, in terms of the Maintenance of Surviving Spouses No. Act 27 of 1990, a spouse in a legal marriage whose partner dies, has a claim against his/her estate for maintenance after the death of the spouse. However, a “spouse” in a “common law marriage” follows the same route as that of Intestate Succession where the spouse that is left behind cannot claim maintenance from the estate of their companion.
The only concept close to a “common law” marriage in our law is where an unmarried couple live together in what bears a resemblance to a marriage is that of cohabitation. However, a couple who cohabit together also does not give rise to legal rights and obligations between the parties. The safeguard in terms of a ‘cohabitation relationship’, is that parties to such an agreement known as a cohabitation agreement is that both parties control and formalise their financial arrangements between themselves.
The agreement should be in writing and may contain any terms that are not unlawful or immoral. Generally, the cohabitation agreement relates to the financial and property matters and may deal with the following concepts of both cohabitees involved in the cohabitation agreement: assets purchased together, the “marital home” and who contributes towards the bond, the paying off of debts and who contributes towards such debts, living expenses and who is accountable for them, and the payment of insurance and pension funds.
These terms of the cohabitation agreement will control the financial relationship and other matters while the pair is together. The agreement must also contain sensibly drafted terms about what happens if the couple separate. For example, if the marital home is jointly owned by the partners, will it be sold on separation, and at what price.
A well-drafted cohabitation agreement can thus provide unmarried couples with substantial structure and likelihood in their financial lives, which to some extent resembles the marital regime of a married couple. Such an agreement will likely contribute to the general steadiness and consistency of such a couple should they remain unmarried.