Not married? You need a Life Partnership (or Cohabitation) Agreement
In an age when most marriages fails, 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!
• Our law does not give automatic rights to partners in a cohabitation relationship. If they had the choice of getting married and they didn’t, the law does not come to their assistance.
• Many people believe that if they live together they are in a ‘common law’ marriage and are as good as married. That is simply not the case. An aggrieved party would have to go to court to show that the parties were partners in a ‘universal partnership’ and that the one party owes something to the other. In the groundbreaking judgment heard in the Supreme Court of Appeal in March 2012, in the matter between Mncora and Butters, the parties were not married but lived together as husband and wife for almost 20 years. The court found that during their 19 years together, Mncora and Butters had formed a ‘tacit universal partnership’ entitling her to a slice of the pie when they went their separate ways:
“On all the evidence it is clear that the all-embracing venture pursued by the parties, which included both their home life and the business conducted by the defendant, was aimed at a profit; a profit which, in my view, they tacitly agreed to share. …the plaintiff had succeeded in establishing a tacit universal partnership between her and the defendant.”
• If one domestic partner dies the Constitutional Court held that Section 1(1) of the Intestate Succession Act is unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of this Act and that the word “spouse” includes a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support. See The recent Bwanya case – Bregman Moodley Attorneys Inc (bregmans.co.za)
• If one of the parties owns the common home, the other has to leave. Fathers of children born from domestic partnerships do not have automatic rights of access or custody, unless section 21 of the Children’s Act applies.