Law Clinix

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Relationships & Marriage

Domestic, Civil or Life Partnerships

A domestic partnership is a legal or interpersonal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage or civil union. The domestic partnership is almost equivalent to marriage.

Domestic partnerships may involve either different-sex or same-sex couples. One of the purposes of domestic partnership relation is to recognise the contribution of one partner to the property of the other.

Cohabitation, also referred to as a common law marriage, living together or a domestic partnership, is not recognised as a legal relationship by South African law.

There is, therefore, no law that regulates the rights of parties in a cohabitation relationship. This relationship where a man and women or (man and man or women and women) living together do not have the rights and duties married couples have.

This is the case irrespective of the duration of the relationship. A cohabitant can also not rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance on the death of a partner. Furthermore, there is no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance.

The current legal position pertaining to life or domestic partnerships in South Africa is fraught with inconsistencies. To begin with, there is no "law of domestic partnerships" so that, generally speaking, none of the invariable consequences that attach to marriage attach to non-formalised domestic partnerships and such couples only have the "ordinary rules and remedies of the law" (such as the law of contract, estoppel and unjustified enrichment) at their disposal. This general position has been developed on an "ad hoc" basis by the legislature and the courts, so that domestic partnerships receive recognition under certain circumstances.

As far as the judicial developments are concerned, this recognition has been limited to same-sex life partners, as, at the time of the applications for extension being brought, same-sex marriage was not yet legally permissible, with the result that a domestic partnership was "the only form of conjugal relationship open to gays and lesbians in harmony with their sexual orientation”.

The Constitutional Court was in Volks NO v Robinson and others 2005 5 BCLR 446 CC  of the view that the law may distinguish between married people and unmarried people and may, in appropriate circumstances, accord benefits to married people which it does not accord to unmarried people. The learned Justice reasoned as follows in paragraph:

"There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouses' rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married." 

Four elements seem to be essential for the creation of a co-habitative relationship namely:

a) A sexual relationship between the couple;

b) A factual co-habitative relationship and

c) Measure of durability and stability of the relationship and

d) “Consortium” the loyalty, care, affection and concern the material needs physical care the rendering of services in the running of the common household.

Salient features of the Draft Domestic Partnerships Bill. In January 2008, the South African legislature unveiled its first concrete attempt to regulate the position of life partnerships in South Africa in the form of a Draft Domestic Partnerships Bill.       

This Draft Bill provides for two forms of domestic partnership: registered and unregistered. Entering into a registered domestic partnership involves a public commitment in the form of a formal registration process that is undertaken by two persons (irrespective of their gender), neither of whom is married or in a civil union or another registered domestic partnership with an outsider.

In consequence of registration, many of the legal consequences that attach to a valid marriage are extended to the partners. 

For instance, registered domestic partners will be placed under an ex lege duty to support one another according to their respective means and needs, will be prohibited from disposing of joint property without written consent, and will be entitled to occupy the family home irrespective of which partner owns or rents it.

A registered domestic partner will also automatically qualify as a "spouse" for the purposes of the Intestate Succession Act 14 and the Maintenance of Surviving Spouses Act,15 7 2006 1 SA 524 (CC); hereafter Minister of Home Affairs v Fourie as the preamble to the Draft Bill, which refers only to "opposite-sex couples" and therefore should be amended.

The Civil Union Act defines a "civil union" as:

the voluntary union of two persons who are both 18 years of age or older,  which is solemnized and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others.

The youngest case law in McDonald v Young (292/10) [2011] ZASCA 31 the court found that whilst there was a reciprocal duty of support between married persons, "no duty of support arises by operation of law  in the case of unmarried cohabitants”. This was an unequivocal statement of the law by the Constitutional Court. Skweyiya (Judge) went on to state that to the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement and only to the extent of that agreement.

There are some legislation that places cohabitation and marriage on an equal grounds:

Cohabitation same sex or life partners are recognized under the Domestic Violence Act.

The law does not distinguish between married and unmarried parents in regard to the obligation to maintain children. Decisions regarding care and contact are based on what is in the best interests of the child. 

A domestic partner may also receive pension benefits as a factual dependent if he/she qualifies as such under the definition of ‘dependent’ in the regulations or conditions of that particular fund. A domestic partner will, however, not be entitled to their partner’s pension interest on termination of their relationship.

 

MARRIAGE IN TERMS OF AFRICAN CUSTOMARY LAW

South African customary law refers to that usually uncodified legal system developed and practiced by the indigenous communities of South Africa. Customary law has been defined as an established system of immemorial rules evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councillors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules.

The Recognition of Customary Marriages Act, Act No. 120 of 1998 is a South African statute in terms of which marriages performed under African customary law, which are now recognized as legal marriages. It also reformed the law relating to the legal status of women in customary marriages, the financial consequences of a customary marriage and the dissolution of customary marriages, replacing the customary law with statutory provisions.

All customary marriages which were valid under customary law when the act came into force, whether monogamous or polygamous, are recognized as marriages for all legal purposes.

The spouses are obliged to register the marriage with the Department of Home Affairs within three months existed marriages before the act came into force, there was a one-year period for registration.  However, a customary marriage is valid even if it is not registered, and there is no penalty for failure to register.

The act declares that a wife in a customary marriage has equal legal status and capacity as her husband, including the ability to buy, own and sell property and the ability to enter into contracts.

All customary marriages contracted after the act came into force are same as a marriage in community of property, meaning that all assets and liabilities belong to both spouses equally, unless an (ANC) antenuptial contract is drawn up.

The act applies the civil divorce law (the Divorce Act, 1979) to customary marriages, meaning that a customary marriage can only be dissolved by the High Court or a regional civil magistrate's court and only on the grounds of irretrievable breakdown of the marriage. The power of traditional leaders and other customary institutions to grant divorces is ended, but they may still mediate in spousal disputes before the legal divorce.

Both parties can decide the terms of the divorce and then the judge will issue the relevant orders regarding care and maintenance. If the court has to decide on these matters it will take into account any arrangements that may have been made in terms of customary law.

The wife's family may have to return all or part of the “lobola” (wedding gifts) to the husband's family, unless the husband publicly rejected his wife for no reason at all.

Marriage

Marriage (also called matrimony or wedlock) is a socially or ritually recognized union or legal contract between spouses that establishes rights and obligations between them. The definition of marriage is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged.

Individuals may marry for several reasons, with legal, social, emotional, financial, spiritual, and religious consequences. Marriages normally performed in civil or religious ceremony known as a wedding ceremony.

The act of marriage usually creates legal rights and obligations between the parties involved, and any offspring they may produce include interracial marriageinterfaith marriage and same-sex marriage.

A marriage in community of property is achieved where there is no antenuptial contract (ANC). 

To achieve a marriage out of community of property an antenuptial contract (ANC) must be drawn by a Notary Attorney and requires registration at the Deeds Office in the province where parties stays prior to the marriage ceremony

After the marriage couples marital status change in to either three categories and It`s important that both parties consult with the notary public beforehand and request an explanation of the various marital regimes, and understands the implications of each on divorce or death.

1. In community of property

2. Out of community with the exclusion of the accrual system in terms of the Matrimonial Property Act, 1984

3. Out of community with the accrual system in terms of the Matrimonial Property Act, 1984

In community of property

No antenuptial contract is needed. There is one joint estate whereby the spouse is entitled to ½ undivided shares. Both parties are responsible for debt incurred, binding the other spouse automatically.

Section 14 of the Matrimonial Property Act 88 of 1984 both spouses must sign with the purchasing of goods.

The income of both spouses is seen as one estate. Debt must be paid out of the joint estate. In the case of administration or sequestration it’s one estate. The marriages of black persons according to the traditional marriages are recognised as in community of property, with implementation of Act 120 of 1998.

Out of community with the exclusion of the accrual system

An antenuptial contract is needed. A public notary attorney draws up the contract and the contract is registered in the Deeds office. 

There shall be no community of property between parties, there shall be no community of profit or loss between parties and the Accrual System provided for in terms of Chapter l of the Matrimonial Property Act, 1984 (Act No 88 of l984) is expressly excluded

Even though the spouse’s matrimonial bond are bonded by a marriage certificate, each spouse retains their own estate. Thus the one spouse’s debt is not the other spouse responsibility except if the spouse signed surety for the other spouse.


Out of community with the accrual system

 An antenuptial contract is needed. A public notary attorney draws up the contract and the contract is registered in the Deeds office.

There shall be no community of property between parties, there shall be no community of profit or loss between parties and the marriage will be subject to the Accrual system provided for in terms of Chapter 1 of the Matrimonial Property Act, 1984 (Act No. 88 of 1984) is will be inclusive.

The nett value of the respective estates must be stated in the contract. The principle is the same as in community. In the case of a divorce or death then the spouse is entitled of ½ of the other party whose estate is the largest or strongest. Each party is responsible for his or her own debt, except where the spouse has signed security for the spouse.

In the event that the ANC is not signed or registered timorously, the couple can approach the High Court by means of a joint condonation application for the late signing and/or registration of the antenuptial contract but the application must be made within a reasonable time. Instructions must be given to an attorney to bring such an application. 


Currently we only register Antenuptial Contracts in Gauteng area but other regions and provinces will follow:

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