Under South African law, there is no common-law marriage, no matter how long a couple can live together. Their cohabitation does not create automatic legal rights and duties between them. It`s a common misunderstanding. A relationship of common life usually consists of two people who live together as a couple, much like a marriage without getting married. Click here for a free sample of a cohabitation agreement. Although many people describe a relationship as a common marriage, there is no fundamental legal concept that describes a common marriage or its implications. The Supreme Court of Appeal ruled in 2012 on this issue in the Butters/Mncora case (2012) (4) SA 1 (SCA). In that case, the Court held that there was no need for a formal agreement and that a tacit agreement could be reached by the conduct of the parties. The Tribunal also found that the partnership should not consist of a commercial enterprise. “There may be children in the union. There could be a common debt. There may be insurance policies with both partners as beneficiaries or a common vehicle. An agreement on cohabitation can help mitigate conflicts when it comes to deciding how to resolve these problems. Technically, partners who live together have no legal duties to each other, even though they have been together for a very long time.
This form of internal partnership is not currently recognized by South African law. Couples who live together, who want to clarify their relationship and enter into a legal agreement can enter into a cohabitation contract. A cohabitation contract is a binding contract between two parties who wish to live together or live together, in which different aspects of their relationship are formalized and which, if properly developed, give both parties substantial protection in cohabitation. Single fathers who live in permanent partnership with the child`s mother therefore have the right and responsibility to be in contact with the minor child, to care for the minor child, to be guardians for the minor child and to contribute to the financial maintenance of the minor child. Cohabitation agreements, also known as common law contracts, provide structure and security for the relationship between unmarried couples living together. It can be compared to antenuptial contracts between married couples, but without marriage. There are a number of reasons why cohabiting people should regulate their property through a written contract. It is primarily a partner`s right to maintenance or assistance.
Many people think that by living together, they enter into a common marriage for a while. Such a marriage does not exist and people are protected only by a cohabitation agreement. Cohabitation refers to a couple, heterosexual or same-sex, who live together without being legally married to each other. While many people thought that living together was a common law marriage, South African law does not recognize it as a legal relationship. There is therefore no law governing the rights of parties in cohabitation. People living in a cohabitation scheme do not enjoy the same rights as a legally married couple, regardless of how long the couple stayed together, while co-location in South Africa is becoming increasingly the norm. One client asked me how long a couple must live together before being considered a couple. Section 21 of the Children`s Act 38 of 2005 grants single fathers living in permanent partnership with the child`s mother, on the date of birth of the child, full parental responsibility and rights.