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Category Archive: Cohabitation

Heterosexual life partners can now inherit from each other

Heterosexual life partners can now inherit

Western Cape High Court File picture: Africa News Agency (ANA)

Reprinted from the Cape Times, by Chevon Booysen – 2020-10-01

Cape Town – Heterosexual life partners are now eligible to inherit from each other after the Western Cape High Court ruled that a section in the Intestate Succession Act (ISA) is unconstitutional and invalid.

The Legal Resources Centre (LRC) welcomed the judgment.

The LRC, which represented the Commission for Gender Equality as amicus curiae or friends of the court, said the judgment was a victory for life partners.

The applicant in the matter was in a permanent opposite-sex life partnership and her partner died without a will.

According to court papers, the applicant met the man during February 2014 while she had waited for a taxi in Camps Bay, where he had “swept her off her feet”.

The two were soon in a whirlwind romance and during June 2014, the deceased asked the applicant to move in with him at his Camps Bay property.

At the time of his passing, the couple were engaged to be married for nearly two years and had been living in a permanent stable relationship while preparing for marriage at a determinable future date, as soon as lobola negotiations between the deceased and the applicant’s family, who live in Zimbabwe, had been concluded.

Further, in court papers diary entries by the deceased were presented which showed the two had plans to start a business together and also had intentions of starting a family.

Court papers read: “The applicant avers that she and the deceased had a very traditional arrangement pertaining to the management of the household. He took care of all the expenses relating to (his two properties).

’’The deceased also bought all their groceries and other household necessities while she cooked and cleaned for him.

“The deceased acknowledged the applicant’s contribution of love, care, emotional support and companionship to their permanent domestic partnership.”

The man died on April 23, 2016, at age 57. He had a will but the heir appointed, his mother, died in 2013.

According to the ISA, and Maintenance of Surviving Spouses Act (MSSA), opposite-sex life partners could not inherit and/or claim maintenance respectively as they were not considered spouses in terms of these laws.

In a statement LRC said: “As a result the applicant filed an application challenging the constitutionality of both the ISA and the MSSA for failing to recognise and include heterosexual life partners who have undertaken reciprocal duties of support as spouses for the benefit of inheritance and maintenance respectively.

“The LRC welcomes the judgment in which the court declared that section 1(1) of the ISA is unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent heterosexual life partnership from inheritance,” the statement read.

In relation to the MSSA, the court held that the finding by the Constitutional Court in another judgment, was binding on the court as a lower court so it could not make a finding in favour of the applicant in this regard.

“We welcome also the declaration of invalidity in relation to the ISA as it is an important development of the South African jurisprudence on the rights of opposite-sex permanent life partnerships.

“Often women in such relationships are vulnerable and suffer discrimination when the relationship is terminated by death.

“The decision is a welcome development in advancing the rights of women to equality and dignity, specifically in relationships,” the LRC statement read.

Is your will up to date?

We welcome this judgment as a major advance for life partners who die intestate. However, whether you are married or not, the best way to ensure your wishes are carried out after your death is to make a will. We can help you draft or update your will. We can also draw up a universal partnership agreement, to protect your status as non-married life partners.

Simon Dippenaar and Associates are specialists in family law and will ensure your estate is distributed and your children are cared for exactly the way you would like after your death. Contact Simon now on 086 099 5146 or email him on info@sdlaw.co.za for a confidential discussion.

Further reading:

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Cohabitation – What is it?

Cohabitation

Cohabitation vs. marriage – the legal differences

For various reasons, marriage is not for everyone. Some prefer not to marry as a matter of principle; some can’t marry (for example if one party is waiting for a divorce to come through). Others want to live together prior to marriage, to road-test their compatibility. Whatever the motive, the status of cohabitation is generally socially acceptable in South Africa and we often hear the term ‘life partners’ used for committed, cohabitative relationships where there is no marriage.

However, in South Africa there is no ‘law of cohabitation’ and cohabitation is not a recognised legal relationship. Notwithstanding, there are legal consequences of cohabitation and some legislation defines ‘spouse’ in such a way that includes a partner in a cohabitative relationship.

 

What is cohabitation?

Cohabitation refers to a stable, monogamous relationship in which the couple, either male-female or same-sex, chooses not to marry but to live together as spouses. Familiar terms for cohabitation include living together, shacking up, de facto marriage, quasi-marriage, common-law marriage, domestic partnership or private marriage. A cohabitative relationship looks to the observer exactly like a marriage. The only distinguishing feature is the lack of legal sanction.

Cohabitation is defined differently in different legal systems, but there are three universal components: a sexual relationship between the couple, a factual cohabitative relationship (i.e. they live in the same home), and stability of the relationship. There may also be a requirement for a sense of responsibility for each other.

 

Common-law marriage – quashing the myth

Many people believe that if a couple cohabitates for a long period of time, the same marital rights apply that spouses in a marriage enjoy…that a ‘common-law’ marriage exists. This misconception exists in many jurisdictions but it is just that – a misconception. There is no such thing as common-law marriage.

 

Universal partnership

Despite the lack of legal status, the South African courts have ruled that there may be an express or implied universal partnership proper (societas universorum bonorum) in existence between a cohabiting couple. In a universal partnership both parties agree to put their current and future property in common, which would resemble a marriage in community of property.

 

Universal partnerships must satisfy four legal requirements:

  1. The aim of the partnership must be to make a profit
  2. Both parties must contribute to the enterprise
  3. The partnership must operate for the benefit of both parties
  4. The contract between the parties must be legitimate

 

The universal partnership argument can be used to give both parties a share in all property acquired during (and before) the commencement of the relationship. However, if a universal partnership cannot be proven, the private property owned by the cohabitees prior to cohabitation belongs to the partners separately and there is no community of property. Property acquired before the relationship is also exempt from any consequences of the Insolvency Act.

 

Cohabitation agreement

Proving the existence of a universal partnership on separation can add to the stress that already accompanies the end of a relationship. It is much more sensible for a cohabiting couple to draw up a cohabitation agreement at the outset of the living arrangement. A cohabitation agreement is a relatively simple contract that includes details of a couple’s assets, property and the financial contributions each partner makes to the joint home. It is valid when ratified by an appointed lawyer.

 

And that’s not all

There are many other issues cohabitative couples must contend with, should they decide to call it a day. There will be a home and associated mortgage or tenancy and decisions to be made about what happens to it, with the accompanying financial consequences. There may be children of the union. There could be shared debts. There may be insurance policies with both partner as beneficiaries, or a shared vehicle. A cohabitation agreement can help to mitigate conflict when it comes to deciding how these matters will be resolved.

 

If the worst happens

A will is often the last thing on the mind when a couple is caught up in the excitement of moving in together. But it’s an important consideration, particularly a few years down the line when there are children and/or shared property involved. Cohabiting partners have no automatic legal right to inherit from the other, as per the Intestate Succession Act, and no right to spousal maintenance on death, as provided for by the Maintenance of Surviving Spouses Act. If you want to be sure of looking after each other in the event of one or other’s death, it is important to make a will.

 

Free Cohabitation Agreement

Download our free Cohabitation Agreement

 

Contact us for more information

If you are about to move in with your partner and would like to draw up a cohabitation agreement and/or a will, or if you need help with the dissolution of a cohabitative relationship, call Simon today. Simon Dippenaar and Associates are experts in family law, including cohabitation. We’ll explain your rights and responsibilities and make sure your interests are protected. Contact Simon on 087 550 2740 or email contact us.

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