Not married – when the inevitable happens

What happens to the estate on death when a couple is not legally married

We recently wrote about the consequences of the death of a spouse in terms of the different marital regimes (featured on FIN24 and our blog here). A reader wrote to tell us of losing her life partner – they were never married – and her shock upon learning she had no legal right to his estate, despite living together for many years.

So we thought it would be helpful to clarify the situation surrounding the death of a non-married life partner. Although the trend in both civil and customary marriages is slightly upward, there are still many people, both heterosexual and same-sex, who choose to live together without entering into a legal union. This is often called a domestic partnership, but this term does not (yet) have any legal standing.

No such thing as common-law marriage

We’ve said it before, but it is worth repeating, because there are still many misconceptions. Common-law marriage does not exist. Living together as man and wife for a certain number of years or even having children together does not confer any type of legal status. This can be achieved via a cohabitation agreement, but does not occur automatically by virtue of the tenure of the relationship. If you have been labouring under the assumption that you have certain rights as common-law husband and wife, it’s important that you take alternative steps to secure your future.

When bereavement strikes

Hopefully you and your partner will live long, healthy lives unmarked by tragedy. But whether through accident or old age, one of you will probably predecease the other. If many of your assets are jointly owned, and if there are surviving parents or children, whether from your relationship or a previous one, the situation can be complex and potentially financially damaging for the surviving partner.

What happens in the event of death with no other contracts

Let’s assume for a moment there is no cohabitation agreement in place and your partner did not leave a will, or the will does not include you (for example, the will was drawn up before you met and was never updated). In this case, to all intents and purposes you have no automatic rights to half the estate. Of course if an asset, such as a house, is jointly owned, you will still own your half (provided both names are on the deeds; it may be more difficult to prove your contribution to household upkeep if the house is in only one name). But that might not help you if a distant relation lays claim to the other half. You would have to buy them out, which might entail selling the house. null

The principle of reciprocal duty of support between unmarried persons has been tested in the Constitutional Court. A landmark case in 2006 resulted in victory for the surviving partner of a same-sex couple, who successfully challenged the parents’ claim to inherit from their deceased son. However, it is crucial to note that this judgement was handed down before same-sex marriage became legal in South Africa. Since the option of marriage was not available to this couple, the Court ruled that the law was discriminatory. In subsequent challenges, the Court has made it quite clear that marriage is available to anyone who wants it, and if a couple chooses not to marry, they are also choosing to exclude themselves from the legal consequences of marriage – the rights and obligations that arise uniquely from marriage, whether civil or customary or civil union.

Will you or will you not?

There are two ways you can protect your partner and yourself from being financially compromised by the other’s death: a cohabitation agreement and a will. We recommend having both. A cohabitation agreement is a relatively simple contract that includes details of a couple’s assets, property and the financial contributions each partner makes to the joint home. It is valid when ratified by an appointed lawyer.

You can download a cohabitation agreement template here.

Secondly, you should both have a will (everyone should have a will). A will sets out an individual’s wishes for the disposal of their assets after death. In the absence of a will, the Intestate Succession Act No. 81 of 1987 applies. While this Act endeavours to ensure fair distribution of assets, it may not be in line with your express wishes. A will makes sure you look after one another in the event of the other’s death.

It’s important to note that, unlike a marriage, it is simple to unwind or change a cohabitation agreement or will. If your circumstances change and you want to amend your will, you can do so simply by making a new will or adding a codicil – a sort of appendix – to it (if the changes are very small) and having it signed by two witnesses. A cohabitation agreement can be updated in the same way. In fact, it is important you remember to do this, should you split up, or your ex-partner may inherit your assets against your wishes!

Domestic Partnership Bill

In 2008 Parliament proposed a Domestic Partnership Bill that would formalise the circumstances of couples who choose to cohabit rather than marry. If enacted, it will provide the option to register a relationship as a domestic partnership, creating similar rights and responsibilities as a marriage or civil union. However, we are still waiting for this Bill to become law. Meanwhile, the information in this article represents the current situation.

Let us Help

Don’t take chances with your future – or that of your children. Simon Dippenaar and Associates Inc. are experts in family and divorce law. If you and your partner are choosing cohabitation as a long-term option, we can help you draw up a cohabitation agreement and a will. Call us on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading

• Last will and testament
• Prenuptial agreements – Know the basics
• Cost of divorce

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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