Is there Such a Thing as a Common-Law Husband
January 12, 2020
It doesn’t matter how similar your conditions are to that of a legal, registered marriage; a common law husband is just a husband in name only.
You can share finances, live to together and have children together. But your ‘marriage-like’ relationship won’t get you the same rights as a legally married couple. South African law doesn’t recognise a common law marriage. And even if you’ve been living in that state for 40 years, it’s not a legal union.
Alas – very Few Legal Rights
In the 21st century, it is very common to enjoy a long-term, permanent-like relationship with another person without ever getting married. It certainly is appealing, but there is limited legal protection for people in this kind of relationships.
When the relationship ends, whether from death or just a mutual parting of the ways. The remaining partner may well face dire consequences simply because there wasn’t an agreement about assets, etc.
Unfortunately, when a cohabitant dies without a will, the partner isn’t going to inherit under the Interstate Succession Act. In a marriage, when one person dies without a will, the other one becomes an automatic beneficiary in the estate of the deceased. In a cohabitation relationship, the partner hasn’t got that natural right to inherit under the Intestate Succession Act 81 of 1987. Instead of the partner, the estate will go to the deceased’s blood relatives.
- Another blow to the common law husband of a wife is that if there were children, they can’t rely on maintenance according to the provisions of the Maintenance of Surviving Spouses Act.
- apart from no maintenance, there is also no obligation for cohabitants to maintain each other
- South African banks also don’t usually co-habitants to have dual- or joint accounts. The other person, however, has co-signing rights. The partner in whose name the bank account is will be liable for things such as loans or overdrafts owed to the bank.
Some legislation does provide some degree of protection to partners. Under the Compensation for Occupational Injuries and Diseases Act 130 of 1993, as amended in 1997, the remaining partner may claim for compensation, if for instance, the partner died from injuries received at work. Also, co-inhabitants, if their medical aid allows it, can include each other in their medical aids.
The Cohabitation Agreement, Common Law Husband
People who are living together may well want to regulate their relationship with a cohabitation agreement. At least this will secure your assets should the relationship come to an end, and parties can even make provision for the payment of maintenance.
There is no such thing as a common law marriage in South Africa. If two unmarried people live together and share everything for a long period. Still neither of them will have any claims to any part of the other’s personal estate.
Cohabitants who don’t have a cohabitation agreement won’t have legal protection regarding South African law. Common law husbands and common law wives can avoid the risks of this by entering into this cohabitation agreement ensuring that your partner does inherit from you.
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All info was correct at time of publishing