Byon December 27, 2015
Many couples opt not to get married. But what financial security and rights do you have when you live together? And what happens if your partner dies?
What is my legal status?
There’s no such concept as common- law marriage in South African law, says Old Mutual legal manager Soré Cloete. People who live together aren’t regarded as legal spouses, no matter how long they’ve lived together or whatever the reason is for them not marrying. This means they’re not covered by the rights of conventionally married couples but they can take steps to ensure their financial security.
Soré says these relationships can be registered under the Civil Union Act. The registered relationship is then officially a civil union. A couple’s rights depend on the kind of matrimonial property regime they register. They can choose between one that’s out of community of property (with or without accrual) or in community of property; for out of community of property they need to have an antenuptial contract. The aim of the antenuptial contract is among other things to protect each person financially.
Wills and death
If one partner dies the other doesn’t inherit automatically. They must mention each other specifically and by name as beneficiaries in their respective wills. They can also draw up a written agreement in which they detail the rights and duties of each in their live-in relationships. This agreement is like a contract between partners and is legally enforceable while both people are still alive. If one of them dies it’s enforceable against the deceased’s will and testament.
To register a civil union between a couple of the same or opposite gender both parties must be 18 or older and have valid South African identity documents. If one of them is a foreigner they must have a valid passport. And if one of them was married before they need a divorce order or the death certificate of the deceased spouse. Make sure you know what the legal requirements are and comply with them.
Research findings of the Old Mutual Savings & Investment Monitor for 2014 show just more than half (52 percent) of all couples who live together or are married have a joint budget, while 48 percent don’t have a budget or don’t handle their finances jointly. If you don’t have an antenuptial contract the registered civil union is deemed to be in community of property.
5 questions about civil unions
1. What is meant by community of property?
The couple share all assets and each partner is entitled to half of the joint assets.
2. Am I responsible for my partner’s debt?
If your relationship is registered as in community of property you and your partner are liable for each other’s individual debts. If you stand surety for your partner you’re also liable for their debt.
3. What does out of community of property without accrual entail?
Without accrual means each partner’s assets remains theirs. That includes assets you bring into the relationship and acquire after registering the civil union.
4. And with accrual?
Both parties retain the assets they each had prior to registration of the civil union but the growth in their respective estates is divided in the event of the civil union being ended, either by death or divorce.
5. How do you end a registered civil union?
As in the case of a divorce you have to apply to court to have the partnership dissolved.