Wednesday, 30 May 2007


This blog deals with the South African law relating to 'a stable, monogamous relationship where a couple who do not wish to, or are not allowed to, get married, lives together as spouses". The definition includes people of the same sex living together in a stable, exclusive relationship.

1. Property

The general rule of law is that cohabitation does not give rise to special legal consequences, no matter how long the relationship has lasted. Cohabitants may make use of the ordinary rules and remedies of the law, such as those relating to property and contract, but no family law consequences flow automatically from their relationship.

However, there are a number of legal actions that can possibly be used to create an enforceable legal right by one partner against the other:

• One is a remedy based on "unjust enrichment" where a party has been enriched at the expense of another without that other having received due value in exchange;

• Another remedy uses the concept of "universal partnership". It has been held that a universal partnership can exist between cohabitants if the requirements of such a partnership are present. These requirements are that • the aim must be to make a profit (it is sufficient in the case of cohabitation if the objective is to accumulate an appreciating joint estate); • both parties must contribute; • it must operate the benefit of both; and • the contract must be legitimate. It has also been held that a universal partnership can arise from an express or a tacit agreement. The consequences of such a partnership are that the partnership property is owned jointly;

• Finally, there may be an express or tacit cohabitation agreement. Given the presence of certain legal difficulties in this fast developing area of our law, it is highly advisable for the couple to commit their agreement to writing and sign it, so that there cannot be any doubt as to its terms.

In the absence of a universal partnership, private property acquired before cohabitation belongs to the partner separately. If there is no universal partnership, property bought by one of the parties during the relationship will belong to the purchaser.

2. Maintenance and loss of support

There is no reciprocal duty of support in our law between cohabiting parties either during their relationship or after its termination by death or otherwise. Neither party may bind the other in contract for household necessaries, unless the one has appointed the other as his or her agent. If the couple hold themselves out to be husband and wife, they will be bound by each other's contracts for household necessaries as if they were legally married because they will not be allowed to say that there was no contract of agency between them (estoppel).

There is also therefore no action for damages for loss of support against a third party who unlawfully causes the death of a cohabitant who has been supporting the surviving partner. This is so even if the deceased had a contractual obligation to support the other, because such an action only lies if the duty to support exists by operation of law. This is the case where compensation for occupational injury or disease is claimed under the Compensation for Occupational Injuries and Diseases Act 130 of 1993. A cohabitant has been included in the definition of 'dependant of an employee' provided that the employee does not also have a legal spouse.

3. The Common Home

A cohabitant who has an ownership interest in the home has a special right to occupy it. Co-owners are both entitled to share in the profits from the home and are also liable to share in the expenses and losses which the running and upkeep of the property involves. Each will be jointly and severally liable for the whole amount of the bond. If one of the cohabitees pays more than his share of the expenses, the difference can be recovered from the other.

Joint owners both have the right to occupy the home and therefore neither can evict or exclude the other from control of such property or compel the other to sell the property after termination of the relationship. Even if they have equal shares, the court will have to settle the matter if the parties cannot agree. The court may order that the home be awarded to one of the partners, subject to the payment of compensation to the other. One of the partners, however, can sell his share in the property to a third party without the other's permission if the cohabitees have not formed a partnership, expressly or impliedly.

If one of the co-owners dies, his share in the property will form part of his estate. The deceased may bequeath his share to the partner by means of a valid will. If the deceased dies intestate or bequeaths his share to someone else, the cohabiting partner will have no claim to the deceased's share in the property and will become co-owner along with the beneficiary. The surviving partner's remedy is to apply to court for an order that the home be awarded to him or her.

4. Children

A child born of a cohabitation relationship is illegitimate. The mother alone has parental power over it and even on her death, the father has no inherent right of guardianship or custody, although this can be remedied in appropriate cases by a court application.

Sexual orientation and marital status may no longer legally play a role when determining the best interests of a child with regard to custody or access of a parent to his/her children.

5. Succession

A cohabitant may leave his or her estate to the other partner even to the exclusion of any spouse to whom he may be married, although the latter will have the right to claim maintenance from the deceased. There is no right of intestate succession between cohabitants.

6. Insurance

Either cohabitant may name the other as a beneficiary under a life insurance policy, provided such nomination is clear and specific. For instance, the cohabitant will not be regarded as a member of the insured's 'family'.

7. Insolvency

If one of the partners becomes insolvent, the estate of both partners vests in the trustee in the same way as that of a married couple.

8. Other Consequences

8.1 Change of name: a cohabitant wishing to change his or her surname to that of the partner must approach the Director-General of Home Affairs for permission to do so, in the same way as any other person.

8.2 Evidence: Whereas a spouse cannot be compelled in civil or criminal proceedings to disclose communications made to him or her by the other spouse, such protection does not extend to cohabitants.

8.3 Legal actions: The matrimonial property system of community of property does not ensue from cohabitation. This means that they may sue each other for patrimonial and non-patrimonial damages.

8.4 Medical aid: s 24(2)(e) of the Medical Schemes Act 131 of 1998 requires medical aid schemes to show upon their registration that they will not arbitrarily discriminate against people on various grounds including marital status and sexual orientation.

8.5 Pension Funds: a cohabitant will enjoy the same rights as a spouse by virtue of the definition of spouse being widened to include a member of " a union of two adults, whether of the same or the opposite sex, in respect of whom the Board is satisfied that the parties cohabit as if married".

8.6 Immigration permits: the special provision made for the authorisation of the issue of an immigration permit to the spouse of a person who is permanently resident in South Africa now includes a party to a life partnership.

Roland Darroll
Cape Town
Wednesday, 30 May 2007