Lize de la Harpe, Senior Legal Advisor, Sanlam Corporate

Introduction

We see it every day; couples living together instead of getting married (commonly referred to as a “domestic partnership”). If this is what you choose – and preferably before throwing caution to the wind and buying homes, cars, etc together without putting a formal agreement in place – just make sure you know exactly what rights and protections the law will and will not give you.

The common misconception

Before going any further, let’s just clarify exactly what we are discussing here. When referring to a domestic partnership, I am referring to couples (hetero- or homosexual) who are not spouses to a religious marriage and who have not formalised their relationship in terms of any act (i.e.: the Marriage Act of 1961, the Civil Union Act or 2006 or the Recognition of Customary Marriages Act, 1998).

There is a common misconception that there is some kind of time period after which you will be legally treated as a “spouse”. There is no such thing as a “common law marriage” in South African law. Put differently: no matter how long you’ve dated, your relationship will never legally “convert” into any kind of marriage.

What does this mean for you?

If you choose not to get married, it is important that you bear the following in mind:

• There is no automatic right to share in assets when the relationship ends.
• There is no legal duty on partners to support each other during or after the relationship.
• There is no right to sue for damages if a supporting partner is killed.

Although our courts have in very specific instances recognised that certain reciprocal duties flow from domestic partnerships, this is not a given. Also, the rights and protections established by family law are generally not available to unmarried couples.

Having said that, there are some remedies available in private law. The principle of a universal partnership affords couples living together the right to share in the property acquired during the relationship, but only if the requirements for proving that an universal partnership did in fact exist are met.

In the matter of Butters v Mncora 2012 (4) SA 1 (SCA) Ms M lived together with Mr B as husband and wife for nearly 20 years though they were never married. Mr B owned a business while Ms M maintained the home and raised the children of both parties. After the relationship ended, Ms M instituted action against Mr B claiming half of his assets on the basis that a tacit universal partnership existed between the parties in which they held equal shares. The remedy Mrs M sought to rely on in this matter is known as a universal partnership. Hence, she had to establish that she and the defendant were not only living together as husband and wife, but that they were partners.

The Supreme Court of Appeal held that in order to rely on this remedy, the following requirements must be met:

1. Both parties must contribute to the partnership (in the form of money, labour or skills)
2. The partnership must be carried on for the joint benefit of both parties, and
3. The objective of the partnership must be to make a profit.

The SCA accordingly found that a universal partnership did exist between the parties and accordingly awarded her 30% of Mr B’s assets.

Universal partnerships aside, certain legislation does afford some protection to domestic partnerships:

• The Medical Schemes Act, 1998 defines a dependant to include a “partner”.
• The Domestic Violence Act, 1998 includes protections for cohabiting partners.
• The law does not distinguish between married and unmarried parents regarding the obligation to maintain children.
• The Pension Funds Act, 1956 recognises a permanent life partner as a “dependent” for purposes of allocating fund death benefits in terms of section 37C.
• Following the Constitutional Court judgment in Bwanya v Master of the High Court, SA 250 (CC) (handed down on 31 December 2021), a partner in a permanent life partnership will be regarded as a “spouse” for purposes of the Intestate Succession Act, 1987 as well as the Maintenance of Surviving Spouses Act, 1990.

The recognition and forms of protection afforded to domestic partnerships however remains piecemeal.

Future development of our laws

In the matter of Volks NO v Robinson, the Constitutional Court recognised that unmarried couples who live together face many obstacles due to their relationships not being recognised and urged Parliament to correct this reality through legislation and policy reform.

Recognising the plight of unmarried couples, Parliament published a draft Domestic Partnership Bill in 2008 which distinguishes between two types of relationships, namely:

• A “Registered domestic partnerships”, being a relationship between two adults that has been registered as a domestic partnership under the bill – partners who register their relationship will be given some of the benefits married couples have; and
• and “Unregistered domestic partnerships”, being a relationship between two adults who live as a couple and who are not related by family.

However, seventeen years later, it remains in draft bill form.

Conclusion

If one looks at case law on this topic you can clearly see there are two distinct schools of thought: those in favour of legislative intervention to afford those in domestic partnerships more rights, versus those against the idea of the legislature interfering with peoples’ choice not to be married.

Makes one wonder…perhaps Beyonce had a point when she said “you should’ve put a ring on it”.

ENDS