14 May 2013

Litigation, Family Law Update, Common Law Spouse

A duty of support is only an inherent right by virtue of one's marital status. In South Africa, partners who have chosen to live outside the confines of marriage fall short of the status of a spouse when the issue of duty of support and care arise.

South African Law only recognizes three marital property systems, namely:

  1. Marriage in community of property
  2. Marriage out of community of property
  3. Marriage out of community of property with the accrual system

In turn one is either married or not and cannot become married by naturalization. Neither can one be in a default marriage after living together for a number of years or having children together.

With marriage there are certain proprietary consequences and financial benefits.  Accordingly no obligation and rights are conveyed on a common law /domestic partnership in respect of their chosen relationship and cohabitation. Neither are the third parties in a position to attach the property of the solvent partner.

The only way unmarried parties benefit from the deceased partners estate, is if provision is made for them in their will.

Confusion of the common law spouse has arisen as a result of the misinterpretation of certain statutes, namely.

Section 21 (13) of the Insolvency Act , defines spouse as a man/woman who is  married in terms of a custom/law or whom live together as though they were man and wife . This affords the creditors the relief or the right to attach the solvent partner's assets to satisfy the debt of the other.

Also the Road Accident Fund makes provision for the partners whom cohabit with the victim. They may receive compensation in certain instances, for example where the partner witnessed the accident.

What must be made clear is that legislation has created the illusion but nothing exists in common law to advise that these parties are now naturalized by law or can be seen as husband and wife.

The only remedy to rid the confusion and safe guard either parties right, is  to enter into a cohabitation agreement.

These agreements serve as a means to clarify what obligations and rights each party has toward the other.  Also, it helps to determine how debts are to be paid and how the property is to be shared/ divided upon termination of their domestic relationship.  The third parties such as creditors cannot attach the solvent parties' assets.

Failing to enter into such agreement waives any automatic rights to a duty of care. At the termination of the relationship each party retains their assets unless acquired jointly, and are liable for their own debts unless incurred jointly.

The Partnership Bill is still under review but cognizance or refuge can be sought through it to vocalise either party's rights. Therefore it is most wise for partners to enter into a cohabitation agreement to safe guard their rights and interests in order to take refuge in the Bill .  It is of utmost importance to consult with an attorney to ensure that your intentions are carried out.

Josette T Finger, Associate

Contact: 033 355 1780 and jfinger@wylie.co.za