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There is a common misperception of the term “common law marriage” in South Africa. The term is also known as cohabitation, domestic partnership or a life partnership and is defined as a heterosexual or same –sex couple who are not legally married but live together and share an emotional, physical and financial relationship.
Due to the nature of the relationship many regard it as equivalent to a legally recognized marriage, however this is incorrect.
It is also incorrect to assume that a life partnership will automatically result in the creation of a legally recognized marriage after years of living together, and further does not create the rights and duties as that of a legally recognized marriage between the parties.
Couples who choose to live together, but not get married to each other at any time in the future do have an alternative method to also enjoy some of the rights and duties of a legally recognized marriage by way of a life partnership agreement. A Partnership agreement must comply with the law of contract, which will contain the rights, duties and responsibilities each respective party have towards the other during the subsistence of the relationship. Both parties may appoint each other as heirs in a will or a joint will, but will not be able to inherit in terms of intestate succession.
The benefit for each respective party in a life partnership agreement is to enjoy legal protection for their interests once the relationship ends and/or to save on the costs incurred should divorce proceedings ever be instituted through a court of law.
If you are in a long term relationship with no intention of entering into a civil marriage in future and also have no partnership agreement in place, you should consider entering into such an agreement in the unfortunate event that the relationship fails.
Contact our attorneys in Cape Town for assistance with your cohabitation agreement.
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