Cohabitation, engagement and the myth of the common law marriage

Cohabitation, engagement and the myth of the common law marriage
Setting the record straight

We debunk the notion that a couple living together for many years creates automatic legal rights and duties between them.

Darren Cohen
Darren Cohen - General Manager
24 March 2021 | 5 minute read
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Cohabitation, engagement and the myth of the common law marriage

There is a widespread myth that two people engaged in a romantic relationship who have been living together for many years have what is called “ a common law marriage”, which means that their relationship has the status of a legal marriage.

This is however, false with no basis in South African law whatsoever. How exactly the myth got started no one seems to know. It is however very problematic since the parties to such a relationship often believe mistakenly that their relationship includes all the rights and obligations of a legal marriage. When the relationship terminates, (by separation or death), the parties are shocked and dismayed to find that they do not have any legal rights whatsoever against their partner or his/her deceased estate. Let us look more closely at the rights these parties thought they had in terms of their “common law marriage”.

Laws of Intestate Succession

In terms of the Laws of Intestate Succession, when a spouse dies without a will, the other spouse automatically inherits 50% of the deceased spouse's estate or 50% of the joint estate if they are married in community of property. Now imagine an elderly woman in a so-called “common law marriage”, whose “husband” suddenly dies. She is grief-stricken over her loss. To make it worse, she discovers that she will not inherit a cent from her husband’s estate as the laws of Intestate Succession do not apply to her “common law marriage”.

Another example. In terms of the Maintenance of Surviving Spouses Act 27 of 1990, a spouse in a legal marriage whose partner dies, has a claim against his/her estate for maintenance. Again, however, a “spouse” in a “common law marriage” cannot claim maintenance from the estate of their partner. The Act does not cover partners to such a relationship.

Civil Union Act

The Civil Union Act, 2006 is an act of the Parliament of South Africa which legalised same-sex marriage. It allows two people, regardless of gender, to form either a marriage or a civil partnership. Civil partnerships can be formed by opposite-sex couples and by same-sex couples, and have the same rights, responsibilities and legal consequences as marriages.

Cohabitation

Since the term “common law marriage” is misleading and indeed there is no such thing, what do we call an unmarried couple living together in what resembles a marriage? Such a relationship is commonly referred to as “cohabitation”, and with two exceptions, the relationship does not give rise to legal rights and obligations between the parties.

Should the cohabiting parties wish to regulate and formalise their financial arrangement and other aspects of their relationship, they can enter into a “Cohabitation Agreement”. The agreement should be in writing and may contain any terms that are not illegal or immoral. Usually, however, the cohabitation agreement relates to financial and property matters and may deal with the following:

  • Jointly purchased assets
  • The “marital home” (who pays the bond)
  • Paying off debts
  • Living expenses (who is responsible)
  • Insurance and pension funds

These terms will regulate the financial relationship and other matters while the couple is together. The agreement must also contain carefully drafted terms about what happens if the couple separate. For instance, if the “marital home” is jointly owned by the partners, will it be sold on separation, at what price, will it be auctioned perhaps?

A well-drafted cohabitation agreement can thus provide unmarried couples with considerable structure and predictability in their financial lives, which to some extent resembles the marital regime of a married couple. Such an agreement will likely contribute to the general stability of such a couple.

There is an additional legal concept that may play a role in the lives of an unmarried couple – the so-called “Universal Partnership”. This comes about where a couple lives together and the following conditions apply to their relationship:

  • Each of the partners brings something into the partnership, whether it be money, labour or skills.
  • The business is carried on for the joint benefit of the parties
  • The object should be to make a profit.

It is difficult to prove a universal partnership but if it is found to exist, both parties will have a claim to the partnership property in terms of their agreement.

Engagement

Suppose you decide cohabitation is not the way to go. After resisting it for many years, you and your partner decide to take the plunge and go the traditional route. And so, you get engaged, amid much fanfare and celebration (pre-COVID-19). But you want to know, what is the legal status of an engagement. Is it a binding legal contract?

The answer is - yes and no! When a couple gets engaged, it is considered a legal obligation and a commitment by the parties to get married sometime in the future. It is, in short, an agreement to get married.

There are no formalities required for this contract, not even an engagement ring or witnesses. All that is required is a serious intention on behalf of both parties to get married. The parties must however have the capacity to understand the agreement, for instance, they cannot be intoxicated or under the influence of drugs. Furthermore, they must be 18 years or older. However, minors may get engaged with the consent of their guardians.

But what if things go wrong? What if one of the parties decides he or she no longer wants to go through with it? Can the other party force the reneging party to get married? After all, they do have a legally binding contract and in any other kind of contract, one party can force the other party to comply with the contract. The answer, of course, is no - neither party can force the other to get married.

Are there then no consequences to a broken engagement? Indeed, there are. If your fiancé breaks off the engagement without a good reason, you may claim monetary damages for breach of contract. But your claim will be limited to your actual expenses for planning and preparing for the wedding.

And finally, the most important question – who keeps the engagement ring? If you mutually decide to end your relationship (and the engagement), the ring must be returned to whoever bought it. However, if the party who bought the ring breaks off the engagement without a good reason, the other party (“the innocent party”) may keep all gifts, including the ring.

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