Domestic Partnerships

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Dr Jones is a designated Marriage Officer qualified to conduct same sex marriages.

Domestic Partnerships

The dangers of living together without marriage

In South Africa, if you who are not married, but are living (cohabiting) with your partner, in either a same-gender or mixed-gender relationship, there a common myth that many people have:  in South Africa there is no such thing as “common-law marriage”. Therefore the amount of time that a couple live together, does not translate into a “default marriage”. This means that there is no duty of support between partners, and very few of the laws that protect individuals in marital relationships protect individuals who are merely cohabiting: which leaves them very vulnerable.  For example, when a cohabitant dies without leaving a valid will, their partner has no right to inherit under the Interstate Succession Act (except if the parties were married in terms of Islamic Law). A cohabitant can also not rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance on the death of a partner.  Furthermore, there is no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance. South African banks also normally do not allow joint accounts for cohabitants.  An account will usually be opened in one partner’s name, but giving the other partner co-signing rights.  Therefore, the partner in whose name the bank account is, will be liable for any monies owed to the bank in the case of an overdraft or loan. The law, as it stands, is unsatisfactory, simply because it does not place cohabitants on the same footing as partners in a marriage or civil union.  Fortunately, the South African law on cohabitation will soon be rectified by the draft Domestic Partnerships Bill that was published in January 2008.  Until the Bill is adopted into legislation, however, which could be many years in the future, the status of cohabitants in South African will remain significantly different from spouses in a marriage and partners or spouses  in a civil union marriage or partnership. Although this may act in one of the partner’s favour, if the partner is the main breadwinner in the relationship, it could put the less economically secure partner at a serious disadvantage should the relationship come to an end: as both partners assets will simply be divided in accordance with who owns what, and maintenance is not payable to either party, by the other party. This obviously becomes problematic when, for instance, one partner registers the immovable property in which the couple lives in their own name and pays the bond in respect thereof, on the understanding that the other partner pays general expenses such as rates, taxes, electricity and water, and groceries.  While the partner who doesn’t have official ownership may think that they would see some of the profits of this property, this is not the case, and as such it could leave that partner severely prejudiced in the event of a breakup; the only option which such a person may then have is to attempt to prove what is known as a universal partnership. LEGAL PROTECTION OPTIONS Cohabitation Agreement  It is always advisable for people who are living together to formally regulate their relationship with a cohabitation agreement, which is a legally binding document setting out how their assets are to be dealt with and any other pertinent matters should their relationship come to an end: which any attorney can draw up for them. Universal Partnership Contract In the absence of a Cohabitation Agreement, the following four requirements are necessary to prove the existence of a universal partnership: That the partnership has been entered into for the benefit of both parties; That the partnership has been entered into for the purposes of yielding a profit; That both parties made a contribution to the partnership (whether monetary or otherwise);  and That the contract must be valid. This agreement does not need to have been express, meaning the parties need not have sat down and formally agreed to enter into this partnership, and may be tacit, or “implied” by the parties’ conduct. The effect of a universal partnership, if proved, is similar to that of a marriage in community of property, and carries many of the same benefits and disadvantages.  In such a partnership, both partners will have joint control and ownership over the partnership’s assets and debts, and, on dissolution of the partnership, the parties would be entitled to an equal division of the assets of the partnership.  Maintenance would, however, still not be payable. Because a universal partnership is so difficult to prove, the possibility of its being found to exits poses huge risks to both cohabitants, as, if not proved, the less economically secure spouse could potentially walk away with nothing, or conversely the more economically privileged spouse could potentially lose half of all of his or her assets. An example of the ramifications of a universal partnership can be found in a case heard before the Supreme Court of Appeal in South Africa, where it was held that the man and woman in question, who had lived together as husband and wife for nearly 20 years, had tacitly entered into a universal partnership in which the female partner had a 30% interest.  She was thus awarded an amount equal to 30% of her partner’s net asset value as at the date when the partnership came to an end.
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