Marriage is a special, internationally recognised institution, the protection of which is a legitimate concern for the law. The law may in appropriate circumstances accord benefits to married people that it does not accord to unmarried people.1
Marriage is argued to be a choice. Couples have the choice of either a marriage in terms of the Marriage Act No. 25 of 1961 or the establishment of a domestic partnership. This reasoning has been put forward in support of the premise that the law need not afford the same protection to cohabitees as is provided to their married counterparts. However, within the South African context it may be convincingly argued that ignorance of the law, gender inequality and illiteracy may operate against the existence of a genuine choice whether or not to enter into a marriage contract. The regulation of domestic partnerships is an essential requirement of South African family law. What protection does South African law afford cohabiting couples?
Cohabitation may be defined as a monogamous long-term, intimate relationship between two persons without marrying. This form of relationship is also referred to as a domestic partnership or a permanent life partnership. The only difference between a cohabitative relationship and marriage is that the couple are not legally married to each other.
In South Africa, there is no law of cohabitation governing cohabitation in the same sense as marriage. A widespread misconception is that cohabitees are protected by the so called 'common law marriage.' Despite cohabitation not being a recognised legal relationship, the South African courts have aided such couples by declaring that an express or implied universal partnership exists between the parties. For a universal partnership to exist, four requirements must be established. First, the partnership must aim to make a profit; secondly, both parties must contribute to the partnership; thirdly, the partnership must operate for the benefit of both parties; and fourthly, the contract between the parties must be legitimate. In the absence of an express agreement for the establishment of a universal partnership, a tacit agreement is acceptable if demonstrated from the conduct of the parties.
The principle of a universal partnership assists cohabitees by according them a right to a share in the property acquired during the relationship, and in certain cases prior to the commencement of the relationship, in the absence of any other legal entitlement. If it is found that the parties created a universal partnership, the property will be owned jointly by the parties in undivided shares, in accordance with the contributions of each of the parties. However, in the absence of the establishment of a universal partnership, the cohabitees will retain all property acquired during and prior to the commencement of the relationship, unless such property is, by agreement, acquired jointly by the parties.
Cohabitees would be well advised to legally regulate their relationship by means of a codified cohabitation contract, expressly stipulating the division of the assets upon termination of the relationship, irrespective of whether or not the relationship is deemed to be a universal partnership. The cohabitation contract may be entered into at any point during the relationship, prior to the termination of the relationship and should govern the division of both movable and immovable property. In addition, a will should be drawn up in order to govern the succession of the parties.
Director, Dispute Resolution: Litigation and Arbitration
1 A. Cooke 'Choice, heterosexual life partnerships, death and poverty' in 2005 SALJ 122(3) at 544.