If living together does not work, what are your rights?
Cohabitation outside of a formal marriage is now widespread and widely accepted in many communities and family units have come to exist in many and varied forms.
POLOKWANE – Fifty years ago, couples who moved in before getting married were frowned upon, but the norm these days is somewhat different.
Director at DDKK Attorneys, Magdaleen de Klerk explains the legalities relating to support where cohabitation relationships are concerned. De Klerk says a recent study by Statistics South Africa found that many couples these days choose to live together rather than get married.
The question that often arise is whether a partner in a cohabitation relationship, who is normally the female partner, is entitled to claim maintenance from her former partner once the relationship is terminated.
“South African law has not yet given full legal recognition to cohabitation relationships as opposed to the institution of marriage. The South African Law Reform Commission, in a recent discussion paper, proposed far-reaching legislative development in this regard. The proposed legislation has however not yet come into operation.
“It is apposite to mention that one of the invariable consequences of a marriage is the reciprocal duty to support between the spouses. However, there is no such automatic duty to support between partners in a cohabitation relationship. Currently, a partner in a cohabitation relationship is entitled to approach a court when the relationship is terminated, to claim maintenance from her former partner based on the existence of an agreement that establishes the duty to support. The onus of proving such a duty to support rests on the partner who wishes to claim maintenance, which normally entails protracted and expensive litigation.”
De Klerk continues to say in a recent case in the Western Cape High Court, a woman who had been involved in a cohabitation relationship for nearly nine years and from which three children were born, claimed interim maintenance as well as a contribution towards her legal costs from her former partner, pending the finalisation of hearing of the action instituted by her in this regard. She claimed that she would otherwise be destitute.
The court confirmed the legal position – that there is not an automatic duty of support between partners in a cohabitation relationship and consequently dismissed her application. “It is therefore clear that women who had been involved in a cohabitation relationship, of which the relationship had ended, do not enjoy the same legal protection as spouses in a marital relationship. The latter is entitled to claim interim maintenance as well as a contribution towards their legal costs from their estranged husbands, pending the finalisation of the divorce action. These interim proceedings provide speedy and substantial relief for a spouse, normally the wife, upon the issuing of a divorce summons.”
The Constitutional Court, she said, recently observed that the reality is that millions of South Africans cohabit outside of marriage and that this number is increasing. The so-called nuclear family centred around a marriage is no longer the norm in South Africa.
“Cohabitation outside of a formal marriage is now widespread and widely accepted in many communities. Family units have come to exist in many and varied forms – all of which are worthy of respect and legal protection. It is necessary not to emphasise the importance of the institution of marriage as to devalue, if not denigrate, other institutions that are also foundational to the creation of other categories of families.”
The Constitutional Court, among others, concluded that the denial of the maintenance benefit provided for in Section 2(1) of the Maintenance of Surviving Spouses Act to permanent life partners, constituted unfair discrimination. “To put the aforesaid in perspective it is apposite to mention that the law should keep pace with the prevailing values of society. To summarise, the South African legal system has not yet given full legal recognition to cohabitation relationships as opposed to the institution of marriage. To succeed with a claim for maintenance upon the dissolution of a cohabitation relationship, the claimant has to establish a legally enforceable duty of support arising of a relationship akin to marriage.”
De Klerk says it would be advisable for women in cohabitation relationships to protect themselves during the subsistence of the relationship by establishing their own separate estates such as obtaining a half share in the common home, a motor vehicle registered in their names, a retirement annuity, investments, savings and the like.
Parties to cohabitation relationships are also advised to enter into a cohabitation agreement which will obviate protracted and expensive litigation should the relationship be terminated.
