With couples increasingly cohabiting before (or instead of) formally marrying, and with the Domestic Partnerships Bill of 2008 still on ice, it bears repeating –
1. There is no such thing in South Africa as a “Common Law Marriage”
2. Any cohabiting couple needs to urgently take advice on concluding a formal “cohabitation agreement” – don’t risk not having one!
The Risk
A recent Supreme Court of Appeal case illustrates the dangers of not doing so: –
- A couple had lived together as life partners for 16 years, pooling their assets and resources and maintaining a joint household to which each contributed.
- Ms S had assisted Mr P with his various businesses and had contributed her earnings from employment (as well as the proceeds of her own furniture and car) to their joint expenses.
- The couple was at one stage engaged, there were promises of security and “what is mine is yours”, and Ms S had been referred to as a “spouse” on a retirement village application.
- When the relationship ended, Ms S was left with virtually nothing.
The 35% Result
The only way for a life partner in Ms S’s position to secure a share of accrued assets is to prove the existence of a “universal partnership”. That is never easy to do, and requires proof of all of the following:-
1. That each party has brought something into the partnership, and
2. That the partnership was carried on for their joint benefit, and
3. That the object was to make a profit.
As a result there are many unfortunate cases of life partners left destitute after decades of cohabitation. Where, as in this matter, the other party strenuously denies the existence of any such partnership, the dispute will probably end up grinding through the courts and appeal courts. Fortunately for Ms S, she was in this particular case able to prove the existence of a “tacit” universal partnership – her High Court award of 35% of the net assets of the partnership was accordingly confirmed on appeal.
The Remedy
The parties would have been much better off if only they had opted upfront for the certainty of a formal cohabitation agreement. The alternative is dispute, acrimony, delay, cost – and quite possibly destitution for the loser.
Should you have any queries please contact Jacques du Toit on jacques@gtlaw.co.za or 028 3123626.
© DotNews, 2005-2012. This newsletter is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.