February 2, 2017

So you think you have a common-law marriage?

Robin Twaddle

We often have people coming to us for help, where they have been living with someone for many years and the relationship has gone sour. They want to know what rights they have arising from their “common-law marriage”. The short answer is none – there is no such thing as common-law marriage in South Africa, and so they have no rights, no matter how long the couple has been living together or what their sexual orientation is.

Common law is the source of our law that exists through usage and custom. Its roots go far back – as far back as Old Testament biblical times – and it develops as society evolves.  Common law is developed by our superior courts, who occasionally determine that common law rights and customs have become outdated or evolved. The other source of law is statute law, which comprises the Acts of Parliament.

At common law, husbands and wives have reciprocal rights and obligations (the so-called conjugal rights). These include the obligation to provide for each other’s maintenance needs, the rights to share in property, and so on. The ‘right’ to sex has always been regarded as a conjugal right. This is a good example of how common law has evolved. There was a time not too long ago where a man could not be convicted of raping his wife, as sex was regarded as a conjugal right. Our courts found that consent is a requirement for sex within a marriage as much as it is outside marriage, and sex was ruled no longer a right in marriage.

To enjoy the rights of marriage, you have to be married, as provided for in the Marriage Act.  These rights have been extended to people who choose to enter into a civil union under the Civil Unions Act, which provides for the exact same rights as a married couple. Civil Unions are available to heterosexual and same sex couples (same-sex marriage in South Africa is another myth: it is regarded as a Civil Union, not a marriage).

Some countries have laws that specify that after living together for a certain period of time, a couple is regarded as married and have the same rights as married couples. This is a classic common law marriage. But in South Africa, there is no such thing.

So, as much as you think getting married or entering into a formal civil union might spoil a good relationship, having nothing in place for your long term live-in relationship leaves you exposed. You should at least have an agreement with your partner that governs consequences of you splitting, such as division of property, maintenance and contact arrangements with children you may have.

If you’re planning on living with your partner for the foreseeable future without entering into a marriage or civil union and would like to draw up an agreement, contact our offices to speak to one of our experts.

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