Short notes on:
Marriage versus Cohabitation (Life Partnerships)
Introduction
Many couples prefer living together (often referred to
as
the
domestic
partnership,
cohabitation
agreements, living together, concubinage and
common-law marriage), as opposed to getting
married. For others, on the other hand, not getting
married is a forced way of life, because many
countries still do not recognise nor make provision for
the solemnisation of same sex marriages (in South
Africa these relationships are regulated by the Civil
Union Act 17 of 2006).
Thus, these cohabitation relationships can exist
between heterosexual or same sex couples and often
involve the same core sentimental ideas and
reciprocal duties of support that a marriage does, but
without having the marriage certificate to prove the existence thereof and without
having the automatic legal protection marriages do.
Therefore, being involved in a relationship of this nature does not merely involve
personal commitment and emotional investment, but also involves many legal and
proprietary consequences, that if not recorded in writing (partnership agreement) can
leave couples in dire straits upon it’s termination. The consequences that must be
recorded in writing include: the duty of support towards one another, right to share in
each other’s property during the relationship (or when it terminates) and to inherit
from each other in terms of the rules of intestate succession.
Thus, if the reciprocal duty of support between partners together with the proprietary
consequences of the relationship are not legally recorded, the parties are not
automatically afforded the ex lege (automatic) legal protection as is afforded by
marriage.
In recording the legal and proprietary consequences of cohabitation relationships,
two options exist:
1. Universal partnership
In cases where the cohabitation relationship meets the following requirements, a
common law universal partnership may be founded:1
(1)
(2)
(3)
(4)
1
2
3
Each party must bring something into the partnership or bind himself or herself
to bring something into it.
The venture must be carried on for the parties’ joint benefit.
The aim must be to make a profit.2
The partnership contract must be valid / legal.3
V (also known as L) v De Wet 1953 1 SA 613 (O).
Ally v Dinath 1984 2 SA 451 (T) and Sepheri v Scanlam 2008 1 SA 322 (C).
Zulu v Zulu 2008 4 SA 12 (D), Muhlmann v Muhlmann 1981 4 SA 632 (T).
© Nicolene Schoeman - Schoeman Attorneys 2010
1
The partnership agreement will therefore regulate which assets form part of the
partnership,4 the proportion in which partnership assets are owned and shared, and
the proportion in which generated profits are shared between the partners. However,
if these proprietary aspects are not agreed to in the said agreement, each partner’s
contribution (assets, money, domestic services)5 determines his or her share in the
partnership.6
Furthermore, the normal (common law) rules, provisions and legal consequences of
universal partnerships apply in these instances, thus a partner may not alienate or
use partnership assets as personal security, without the other partners’ prior consent
and may not entirely exclude a partner from controlling the partnership property /
assets. Moreover the partnership automatically terminates on death of either partner
and the surviving partner is entitled to an undivided 50% share of the partnership
assets, but is not entitled to remain in possession / occupation of partnership assets,
in the absence of a bequest (in a will) or an agreement (provision in the partnership
agreement) to the contrary.7
2. Life partnership
In cases where the requirements of the universal partnership cannot be met, couples
can establish a life partnership (which is also commonly known as a cohabitation or
domestic partnership agreement).
This partnership agreement will create and regulate the reciprocal duty of support
and maintenance between the parties as well as the proprietary consequences of the
relationship, in general, and will also regulate aspects such as; post-separation
maintenance, regulate ownership of any assets acquired prior to the relationship,
assets acquired during the subsistence of the relationship, payment of household
expenses and liabilities, etc. The common law rules relating to partnerships as
mentioned above, will also apply in these cases.
Even though an agreement of this nature aims to regulate the legal and proprietary
consequences of the relationship, much like a marriage does but without the intention
of generating profit (like the universal partnership), the contract and relationship can
be terminated (partnership dissolved) in accordance with the provisions contained in
the partnership agreement and / or common law (automatic dissolution upon death of
a partner).
Conclusion
The marriage is currently the only social / legal institution that protects the rights of
spouses, without having to enter into additional agreements, as there is an automatic
and reciprocal duty of support between spouses, duty of maintenance during and in
some cases after termination of the marriage, spouses can inherit from one another
through testate (will) and intestate succession, etc.
While the legal and proprietary consequences of life partnerships or cohabitation
relationships must be regulated by a partnership agreement. However, in the
absence of agreement, partners can still approach a court, after the relationship has
been terminated (by death or separation), for an order for maintenance, an intestate
4
V (also known as L) v De Wet 1953 1 SA 613 (O) and Ally v Dinath 1984 2 SA 451 (T).
Isaacs v Isaacs 1949 1 SA 952 (C).
Isaacs v Isaacs 1949 1 SA 952 (C) and Muhlmann v Muhlmann 1981 4 SA 632 (T).
7
Botha v Deetlefs 2008 3 SA 419 (N).
5
6
© Nicolene Schoeman - Schoeman Attorneys 2010
2
succession order and / or an order dividing the property. 8 In these instances the
courts must have regard to all the circumstances of the relationship before giving an
order.9 Nevertheless, this is an expensive and time consuming process that does not
guarantee a satisfactory outcome for the parties.
Therefore, we strongly urge couples who are in unrecorded life partnerships to
employ the services of an attorney to draft and assist in the execution of a suitable
partnership agreement and to make the necessary legal provisions in their wills.
8
9
South African law reform commission report March 2006 project 118 Domestic partnerships.
South African law reform commission report March 2006 project 118 Domestic partnerships.
© Nicolene Schoeman - Schoeman Attorneys 2010
3