The short answer is, persons living together do not automatically have the same rights in their relationship as a married couple. This does not mean that persons who choose not to get married are without recourse. There are options available to protect the rights of the parties and determine the consequences if the relationship ends up on the rocks.
In a relationship of cohabitation, two persons, irrespective of their gender, live together in all respects as a married couple. Although a cohabitative relationship is not a marriage, it can in certain circumstances be seen as a ‘partnership’, provided very specific requirements for a partnership are present. This cannot always be easily demonstrated. Where the couple living together can show the presence of a partnership, they will be the equal owners of all assets collected during the existence of the relationship. If they cannot prove this, then each person’s assets will remain his or her property.
South African banks do not allow couples living together to open up a joint account. These couples also cannot claim that the other party must support them financially. The parties can however include such rights or obligations in an agreement between them, but these will only be recognised to the extent that the agreement provides therefore. If one party passes away the other party will not have an automatic right to inherit from the other if the deceased did not provide for the party in his or her will. If the will does provide for inheritance to the surviving party, this right can be influenced by the maintenance claims of a lawful spouse and/or children against the deceased’s estate.
In terms of our laws against family violence, parties living together can in the same manner as a married couple, obtain a protection order against the other. According to pension fund rules, a pension fund can after the death of a member, pay to the dependants, and in the same manner as with a married couple, a party to a cohabitative relationship can also qualify as a dependant, provided the one partner contributed to the maintenance of the other. If a party to a cohabitative relationship passes away due to an accident in the course and scope of his or her employment, the other party, similiar to a married couple, can claim damages subject to meeting the requirements for a valid claim.
The Childrens Act determines that the biological mother of a child is also the guardian of the child and that all concomitant rights and obligations vest in the mother irrespective of whether at the birth of the child she is married or in a cohabitative relationship. The biological father of the child who at the birth of a child is in a permanent cohabitative relationship with the biological mother, also receives all concomitant rights and obligations to the child in the same manner as the biological mother.
The Civil Union Act provides another alternative for same sex couples by allowing same sex partners to register their cohabitative relationship as a civil union thereby granting them the same benefits as a marriage. The partners cannot however get married until the registered civil union has been dissolved. To dissolve a civil union a process similiar to a divorce in terms of the Divorce Act must be followed.
Cohabitating partners can also choose to have a cohabitation agreement executed in which their respective rights and obligations are stipulated. This allows for upfront discussion of concerns and issues and provides valuable certainty for the consequences of the relationship. However, if the relationship does not work parties can only hold each other to the terms of the cohabitation agreement and they cannot rely on any help from legislative intervention.
Marriage and cohabitiation is not the same thing, but some of the same consequences can be established through the use of the options discussed above. When a couple decides to move in together it becomes important to consider the purpose of the relationship and weigh your options accordingly.