Articles

What’s yours is mine or is it?

Mamas & Papas August 2010
By Deborah Di Siena & Natalie Laurencik

Is there any law which regulates living with your partner out of wedlock?
Currently a domestic partnership bill has been published for comment, however, it has not come into force yet. This bill makes provision for a partner in a "domestic partnership" to be able to claim maintenance as well as a portion of the movable and immovable assets of the other partner upon the termination of the partnership.

The court will look at certain factors, for example the length and nature of the partnership, the standard of living of the partners, if children were born of the partnership etc, to determine the extent of the partner's claim. No formalities are required to enter into this "partnership". The court will determine the existence of the partnership based on the abovementioned factors.

How do I go about drawing up an ante-nuptial contract?
An attorney who is a notary can draft the ante-nuptial contract between you and your future spouse. The ante-nuptial contract must be notarised by a notary who will send it to the Registrar of Deeds to be registered. An ante-nuptial contract must be signed before the marriage ceremony takes place, however, it only needs to be registered within three months after the date of the marriage.

What can I do if I have lived with my partner for many years and now wish to leave him/her? Is there any way I can have a claim to the assets that were accumulated during the relationship?
It is possible to divide the assets that accumulate during the relationship if you can prove that a universal partnership existed between you and your partner. There are four requirements that need to be proven for a universal partnership to exist. They are:

  • That both parties contributed to a specific joint venture in one way or another, such as capital or labour;
  • That the venture was conducted for the benefit of both parties;
  • That the venture was conducted for a profit; and
  • That a universal partnership therefore came into existence.
It should be noted, however, that a universal partnership is very difficult to prove in court.

What can I do if do not wish to marry my partner; however we want a fair distribution of our assets if we split up?
Unmarried people who live together often decide to enter into a cohabitation agreement which can regulate certain issues, both during the cohabitation period and if/when the cohabitation period comes to an end. Examples of some of the issues which can be regulated in such an agreement are:
  • Financial matters during the relationship such as who will pay for groceries, who will pay the bond, etc.
  • Who will get the fixed property or will it be divided upon separation.
  • How household goods will be divided between the parties upon separation.
  • If one partner will pay a maintenance amount to the other partner upon separation.
A cohabitation agreement is a contract and so any terms can be included in it as long as they are legal. The cohabitation agreement merely needs to be signed by both parties and registered at Home Affairs.

I have been living with my partner for many years and believe I am a common law spouse. What are my legal entitlements?
In South Africa, there is no such thing as a common-law husband or wife. If two unmarried people live in the same house for any period, neither of them will ever qualify as a common-law husband or wife and as such neither party will have a claim to any part of the personal estate of the other party.

Regardless of whether you and your partner have children together, whether you share household expenses or whether you purchase certain assets together, if you decide to end your relationship neither party can claim anything from the other party based on the fact that a relationship existed between the two of you.

Talk to a specialist

Deborah Di Siena

Partner
011 775 6307
E-mail Deborah Di Siena