Common law marriage myth in South Africa
There is a pervasive myth that in South Africa there is something called a common law marriage. The idea is that if a couple has been living together for a certain number of years then they are legally considered “married”.
That is simply not the case.
This presents a problem because often people believe that they are afforded a certain amount of legal rights because of their living situation, but then get a shock when they realise this to not actually be the case.
Where does the myth come from?
The idea of common law marriage arose during medieval times as a way for rural couples to become married when a justice of the peace couldn’t travel to where they lived. Today, the need for common law marriage doesn’t exist, and most states don’t recognise such unions.
Common law marriages have never been recognised in South Africa, but the reason for the confusion could be because it does exist in certain regions, such as in 15 out of the 50 American states.
Even in areas where common law marriages exist, however, it is not as simple as just cohabiting for a certain length of time. A couple would have to demonstrate the intent to be officially married in the eyes of the law and hold themselves out to the public as husband and wife. They would have to do things a married couple would like using a joint checking account and filing joint income tax returns.
Cohabitation – where does this leave you?
When two people get in a relationship, there can be many legal and financial implications involved. To reiterate, however, if two unmarried people live on the same property for any period of time in South Africa, neither of them will have a claim to any part of the other party’s personal estate.
If you are a cohabiting couple and want the protection and rights of having your partnership legally acknowledged, then the obvious solution would be to just get married.
If for whatever reason marriage is not an option but you would still like some form of legal cover, the other recourse is to sign a cohabitation agreement. A cohabitation agreement is a contract you and your partner draw up, it can be as binding or as flexible as you want it to be, and it is only binding between the parties who entered into that specific cohabitation agreement.
The agreement can cover things like how to conduct living arrangements, the duties and rights of each party, and the financial consequences in the case of a breakup. (Bear in mind that a cohabitation agreement can’t stipulate what should happen with the property of a person at his/her death – a valid will is needed.)
The particulars of a cohabitation agreement can be an uncomfortable topic for couples, especially when you layout what happens in breakup. After all, the polite thing is always to assume you never will breakup.
Having some kind of legal contract is very useful though, and not only in the case of a breakup. Coming together to draw up an agreement is also an opportunity to make sure you are both on the same page in relation to certain issues.
So don’t think of a cohabitation agreement just as protection in case you breakup, but as a way to come closer together.