In South Africa there is a myth that, if you are not married, but living with (cohabiting) your partner for a certain amount of time, it translates into a “common law marriage” by default. The truth is: cohabitation or living together is not recognised as a de facto marital relationship, of any kind, in terms of South African law.
This presents a problem because people often believe that they are afforded a certain legal rights simply because of their living arrangements. In many instances, in the event that the unforeseeable happens to one partner (illness or even death) or you break up (the relationship is terminated), you do not have the legal protection in place you may expect. For that reason, couples need to know their rights and how to protect it.
Cohabitation and legislation
Here are some of the problematic situations a cohabitation relationship faces compared to a marriage:
- As soon as you get married, a reciprocal duty of support is established between spouses, depending on their respective means and needs. This does not automatically apply to cohabitation relationships. Couples have no duty of support to each other and no enforceable right to claim maintenance.
- A cohabitant cannot rely on the provisions of the Maintenance of Surviving Spouses Act 27 of 1990 to secure maintenance on the death of a partner. In a marriage, if one spouse dies, the other spouse can claim maintenance from his or her deceased estate.
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