Cohabiting couples: Not common law spouses

Living together without marriage reflects modern relationship dynamics, but it’s crucial to understand the legal implications. The South African legal system doesn’t grant the same rights and protections to cohabiting partners as it does to married couples, says Angie Poole, Manager Estates, Business Restructuring at BDO South Africa.

Today, many couples choose cohabitation over marriage, valuing flexibility over formal commitment. However, despite common beliefs, living together does not make partners common law spouses in the eyes of the law. This lack of recognition leads to significant legal and financial challenges for cohabitants.

No will, no inheritance

One major issue arises when a partner dies without a valid will. The surviving partner does not automatically inherit under the Intestate Succession Act 81 of 1987, which excludes cohabitants from its provisions. This makes it essential for cohabiting partners to draft a valid will if they wish their partner to inherit, says Poole.

The 2008 draft Domestic Partnership Bill aimed to provide legal recognition and protection for cohabiting couples. However, it has not been passed, leaving them without statutory protection.

A safety net, not a guarantee

To mitigate potential complications, many couples enter into cohabitation agreements, which outline each partner’s rights and responsibilities. While these agreements provide some security, they do not guarantee inheritance rights under the Intestate Succession Act. Only a valid will can ensure that a cohabiting partner inherits.

Certain laws recognize cohabitation despite these challenges. The Domestic Violence Act protects cohabiting partners, and the Medical Schemes Act 131 of 1998 includes cohabitants as dependents. Additionaly, the law treats married and unmarried parents equally for child support. A partner can claim compensation if their spouse dies from work-related injuries, as long as they were living together as ‘husband and wife’ when the death occurred.

Court case underscores need for wills

A recent judgment, L.L v C.H NO and others [2023] ZAGPJHC, illustrates the legal difficulties faced by cohabiting partners. The applicant and the deceased had been in a relationship since 1980 and lived together since 1990. When the deceased died without a will in 2016, the applicant could not inherit under the Intestate Succession Act. The applicant sought a court declaration for their relationship as a universal partnership. The court initially dismissed their request, but later upheld it on appeal, granting them entitlement to half of the estate.

This case underscores the importance of having a valid will for cohabiting partners. As societal norms evolve, the legal framework has been slow to adapt, leaving cohabitants in uncertain positions. Poole concludes that individuals in such relationships must proactively protect their interests through wills and cohabitation agreements to ensure their rights are safeguarded and their wishes honored in the event of death or separation, until comprehensive legal recognition and protection for cohabitation is enacted.

NOW READ: Expert busts top hair transplant myths