Common Law Marriages and their place in South African Law

Article by Tania Abbotts, Hammond Pole Specialist in Family Law and Divorce Attorney.

Throughout my career, I have had numerous uncomfortable consultations where I have to advise clients of their limited legal protection after their relationship ends with their domestic partner/fiancé/boyfriend/girlfriend. This is because there is a general misconception that South Africa recognises “Common Law” marriage.

A Common Law Marriage is a concept recognised overseas where two parties are seen as being “married” and thus are afforded some protection in terms of the law, even though they are not actually married.

There are various theories as to why South Africa does not recognise Common Law Marriages and the simplest answer is that: should two parties want the legal protection that comes with a marriage, then they should get married in terms of South African law.

South African law makers discussed ad nauseam the possibility of creating a term “Domestic Partnership” under a new statute “the Domestic Partnership Bill” which would in effect give life to the term and make it seen on the same standing as a Common Law Marriage, but sadly such a law has never been promulgated in Parliament and thus does not exist.

So where does this leave all the South African that break up after living with their partners or being in relationships with their partners for any amount of time and are not yet married?

1.There would be no claim for spousal maintenance. If your partner assist with your living expenses, after you break up, they would be entitled to stop these payments;

2.Should the parties have children, there would still be an obligation for child maintenance in terms of the Maintenance laws;

3.Assets would be split according to who bought what into the relationship. Anything bought during the relationship by both of the parties would need to be split accordingly – either one party buys it from the other, or the assets are sold and the proceeds split; and

4.In the event of one of the partners becoming deceased, in the absence of a last will and testament, the surviving partner would not be recognised as a spouse. The remaining surviving descendants would thus be entitled to benefit in terms of the estate and the surviving partner would be precluded accordingly.

A co-habitation agreement will provide some legal protection in the event that the parties do not wish to get married, however, it cannot afford protection as a party would have in the event of being married.

PLEASE NOTE THAT WE STRONGLY RECOMMEND THAT YOU CONTACT US DIRECTLY FOR A CONSULTATION FOR SPECIFIC ASSISTANCE AND ADVICE REGARDING YOUR SPECIFIC MATTER AS THE INFORMATION CONTAINED IN THIS ARTICLE IS INTENDED AS A GENERAL GUIDELINE AS TO FAMILY LAW IN GENERAL AND DOES NOT CONSTITUTE LEGAL ADVICE.