Marriage v Life Partnership – IPC Jeffreys Bay
Marriage v Life Partnership
Jeffreys Bay with its laid back lifestyle has many couples living together?
“As an Estate Agent working for IPC” (Independent Property Consultants) David Barkes says “I hear the following all the time”.
‘We plan to get married eventually”, or, ‘we will get married when our baby starts school’, they say.
“Well”, said David Barkes, ‘the latest Newsletter from Greyvensteins Attorneys spells it out very clearly, and that is, couples who are living together need protection, and not the sort of protection the SABC goes on about!”
It is widely believed that couples, whether heterosexual or same-sex, living together for a long period of time, results in a common law marriage, thus giving each spouse the equal protection of the law.
However, South Africa regulates only marriages contracted by means of civil law.
This allows the spouses in a civil marriage to benefit from certain automatic legal remedies available under the Marriages Act 25 of 1961, Matrimonial Property Act 88 of 1984, Maintenance of Surviving Spouses Act 27 of 1990 and the Divorce Act 70 of 1979.
Life partnerships involve the same commitment as that of civil marriage. Life partnerships involve the same core ideas and reciprocal duties of support as that of a civil marriage.
Life partnerships differ in that there is no legal recognition for a life partnership under any legislation.
Although the courts have decided whether an express or implied partnership exists, it becomes problematic in proving that such legal obligations exist. Life partnerships are problematic in that the relationship between the parties involves the same legal and propriety consequences, but there is no legal backing when the partnership is terminated either by the relationship failing or by death.
The law does, however, provide couples of this nature with some form of scapegoat by allowing the partners of the relationship to record the relationship in writing, thus constituting a contract of sort. It is in this written agreement where couples specify the legal and propriety consequences of their relationship.
There are two types of life partnership agreements which couples can choose from:
1. Universal partnership agreement
2. Life partnership agreement
A Universal Partnership Agreement allows a life partnership to be founded, subject to specific requirements:
- Each party in the life partnership must bring or bind himself/herself to bring something into the partnership.
- The partnership must be to the benefit of all the parties’ involved (joint benefit).
- The aim of the partnership must be to make a profit.
- The partnership may not contain any illegal or immoral provisions in order to be legally valid.
The universal partnership agreement will allow the couple to regulate the propriety aspects in terms of which assets form part of the partnership, the proportion in which the assets owned and shared and, furthermore, the proportion in which the generated profits from the partnership will be divided amongst the parties.
As the written agreement is formed under common law, it provides individual protection to each party with regards to the propriety consequences.
In the case whether there is death, the agreement does not provide protection to the surviving party if there is an intestate estate or absence of a bequeathing provision in the agreement between the parties.
A Life Partnership Agreement provides an alternative legal avenue for couples that cannot meet the requirements of the Universal Partnership Agreement. The agreement, also commonly known as a domestic partnership agreement, allows the couple to create and regulate the reciprocal duty of support and maintenance and allows the couple to regulate the propriety consequences in general.
Aspects that are commonly featured in such an agreement include: post-separation maintenance, ownership of assets acquired prior to the partnership and assets acquired during the partnership. The agreement provides provisions for the partnership to be dissolved, thus terminating the agreement.
It is important to note that where children are born between the parties out of wedlock, the Children’s Act 38 of 2005 establishes responsibilities and rights to both the mother and the father of the child. It provides that there is a legal duty to maintain the child/ren regardless of the living arrangements of the parents.