A client asked me how long couple must live together, before they are regarded as being in a common-law marriage.
In South African law, there is no such thing as a common-law marriage, no matter how long a couple may live together. Their cohabitation does not create any automatic legal rights and duties between them. This is a common misunderstanding.
In an age when most marriages fail, parties with a trail of prior relationships and marriages behind them may prefer to live together, rather than marry. Same-sex or heterosexual partners who choose not to get married should sign a domestic partnership (also called a life partnership or cohabitation) agreement to protect them should their relationship end. It is cheaper than ending up in court!
A widely-used definition describes “domestic partners” as “two adults who share an emotional, physical and financial relationship like that of a married couple but who either choose not to marry or cannot legally marry. They share a mutual obligation of support for the necessities of life.”
Cohabiting couples do not have the same rights as married couples under the law, so it makes sense to set out at the outset of the relationship what the division would be if the cohabitation breaks down.
The life partnership agreement will provide for such things as:
Universal Partnership Agreement
If parties live together but don’t conclude any form of agreement regulating their respective legal rights and obligations, on dissolution of the cohabitation, a party that feels he or she is entitled to something from the other party (who disagrees), must go to court, at some expense, to prove that entitlement. To do so, the party must prove they were in a ‘Universal Partnership’, so that one party is entitled to certain property and assets of the other party, on separation.
Because the existence of a universal partnership is difficult to prove, it makes sense to conclude a life partnership agreement.
If you did not, and need to approach a court to prove the existence of such a partnership you must show that:
If a party cannot prove the existence of such a partnership, he or she may walk away with nothing, even if the parties lived together for years.
Bregman Moodley Attorneys Inc. 2015/089214/21
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