Unmarried Couples: Essential Tips to Safeguard Your Rights

 

Many couples choose to be in a committed relationship without getting married. However, it is essential to understand the legal implications of this decision. Unlike married couples, unmarried partners do not automatically have the same legal protections, which can lead to significant issues in the event of separation or the death of a partner.

Protect your rights as an unmarried couple by understanding the lack of common law marriage recognition, preparing a cohabitation agreement, updating your will, and knowing the legal avenues available for unmarried couples in South Africa.

Many people in South Africa still believe that if they have resided together as a couple for a certain amount of time, they are now “common law partners” or in a common law marriage”; this is not the case. For this reason, unmarried couples need to understand how to safeguard their interests if their relationship ends or if one of them dies.

 

Demystifying The Idea Of Common Law Marriage In South Africa

The South African judicial system does not recognise common law marriage. This lack of recognition means that no matter how long you and your partner have lived together, you are not afforded the same legal protections as married couples. This legal gap can leave many unmarried couples vulnerable, particularly in the event of separation or death.

 

Issues You Could Face As An Unmarried Couple If You Separate

Unmarried couples in South Africa do not automatically receive a 50% share of the other partner’s estate, even if they have contributed significantly to it. This reality can be particularly challenging for unmarried women who might have stayed home to manage the household or raise children. In the event of a separation, they are not guaranteed maintenance and may even find themselves without a home or way to provide for themselves.

Additionally, regarding the home the couple shared, if only one partner’s name is on the lease or property title, they can request the other partner leave, to which the expelled partner would have no legal recourse to refuse this request. They would need to go to court to prove that they have a legal right to the previously shared property.

 

Issues You Could Face As An Unmarried Couple If One Of You Dies

The Intestate Succession Act 81 of 1987 does not recognise unmarried couples. If one partner dies without leaving behind a valid will, the surviving partner has no legal claim on the deceased’s estate. Although you could go to court to argue your contribution to the estate, success is unlikely without substantial proof.

Even long-term cohabitation does not guarantee rights to the deceased’s property, potentially leaving you without a home. Even if you co-owned the shared property, you would likely have to buy out the inheritor of the deceased person’s half of the property. This situation can create significant financial stress, as you might need to raise substantial funds quickly to retain your home.

 

Ways To Mitigate Issues Surrounding Being An Unmarried Couple

While being in an unmarried relationship can pose several legal challenges, there are proactive steps you can take to protect your and your partners’ rights. These measures can help you safeguard your financial interests and ensure you are better prepared in the event of separation or the death of a partner. Below are practical ways to mitigate potential issues and secure your future together.

 

1. Keep All Receipts During Your Relationship

Documenting your financial contributions throughout your relationship can provide crucial evidence if you need to support your claims in court. Keep records of shared expenses, contributions to property improvements, joint purchases, and any other financial investments you have made together.

This documentation can help establish your financial involvement and strengthen your position in any legal disputes. However, this approach can be impractical and cumbersome over long periods. Therefore, exploring other, more comprehensive methods to protect your rights is also advisable.

 

2. Draft A Cohabitation Agreement

Cohabitation agreements are legally binding documents outlining unmarried partners’ financial and property arrangements. This agreement should cover various aspects, including property ownership, division of financial responsibilities, and provisions for separation or death. By clearly defining these terms, both partners can have a mutual understanding and avoid potential conflicts.

As always, the best advice would be to consult a legal professional to draft a cohabitation agreement that meets all legal requirements and adequately protects both parties. This agreement can provide peace of mind and legal clarity, ensuring that each partner’s contributions and rights are recognised.

 

3. Ensure To Keep Your Will Updated

Regularly updating your will to include your partner is crucial in protecting their rights and honouring your wishes. Without a valid will, your partner might have no legal claim to your estate, leaving them vulnerable. Specifying your partner’s entitlements in your will can prevent disputes and legal challenges from other potential heirs.

Additionally, consider setting up other legal instruments, such as trusts, to provide further security for your partner. Regular reviews and updates to your will, especially after significant life events, can help maintain its relevance and effectiveness.

 

4. Be Able To Prove That You Were In A Universal Partnership

A universal partnership is a legally recognised relationship where both parties agree to share in the profits and losses of their joint endeavours. You would need to meet the following requirements to establish a universal partnership:

  • Profit Motive: The partnership’s aim must be to make a profit. Both parties should be involved in activities that generate income or other financial benefits.
  • Contribution: Both parties must contribute to the partnership. Contributions can be financial, but they can also include skills, labour, or other resources.
  • Mutual Benefit: The partnership must operate for the benefit of both parties, meaning that both partners should share in the profits and benefits generated by the partnership.
  • Legitimacy of the Contract: The contract or agreement between the parties must be legitimate. This involves having a clear, mutual intention to form a partnership and abide by its terms.

 

One thing to note is that these stringent requirements can make proving the existence of a universal partnership challenging. You may need to provide substantial evidence, such as documentation of shared financial goals, joint bank accounts, and collaborative business activities.

Successfully proving a universal partnership provides a solid legal basis for claims on shared assets and offers protection similar to a marital relationship.

 

Legislation That Places Unmarried Couples And Married Couples On Equal Footing

Several laws offer some protections to unmarried couples, including:

  • Domestic Violence Act 116 of 1998: Protects against domestic abuse for all cohabiting partners.
  • Medical Schemes Act 131 of 1998: Allows unmarried partners to be recognised as dependents for medical aid purposes.
  • Children’s Act 38 of 2005: Ensures both parents have obligations and rights regarding their children, regardless of marital status.
  • Unmarried partners can be named beneficiaries in life insurance policies and may receive pension fund benefits as nominees.
  • Compensation for Occupational Injuries and Diseases Act 61 of 1997: Provides compensation to cohabiting partners of deceased workers if they died resulting from injuries sustained while working.

 

Navigating the legal landscape as an unmarried couple in South Africa can be complex. Taking practical steps to protect your rights and your partner’s is crucial. From drafting cohabitation agreements to keeping your will updated, these measures can provide much-needed security.

At Burnett Attorneys & Notaries, we understand unmarried couples’ unique challenges. Our experienced team is here to help you draft comprehensive agreements and provide legal advice tailored to your situation. Contact us today to protect your and your partner’s rights.