While common law marriages are legally recognised in the USA and Australia, the same cannot be said for South Africa. As local specialist divorce lawyers, the team at the Law Offices of Karen Olivier is here to provide a clear definition of the common law marriage and unpack some of the potential problems that come with this type of relationship.
Defining a Common Law Marriage
A common law marriage refers to the union between partners who choose not to be officially married but who live together as husband and wife (or as wife and wife, or husband and husband).
This situation, which is also referred to as “life partnership” or “cohabitation” is becoming more common as many younger couples choose not to go through with the expenses and formalities of a traditional marriage.
To ascertain whether a relationship qualifies as a common-law marriage, several factors are considered. These include, but are not limited to:
- The length of time two people have cohabited
- How household responsibilities and finances are shared
- The existence of mutual agreements that present the two people as a married couple to friends and family
- The extent to which they have integrated their lives socially and economically
- Documented evidence of a committed relationship – including shared leases, joint bank accounts, and named beneficiaries on insurance policies
Problems That Common Law Marriages Present
While common law marriages are quite prevalent, it should be noted that these types of partnerships are not recognised by the South African legal system, and being in a “life partnership” with someone, therefore, does not offer the same legal protection and benefits as being in a registered marriage.
Over time, many potential problems could arise, especially if you and your partner were to split up. As you were never a registered spouse, you won’t have the same rights when it comes to property division and maintenance. If your partner were to pass away, you may not receive an equitable share of your partner’s estate.
Legal Protection Linked to Marriage
Depending on the type of agreement, married couples automatically receive several legal protections that unmarried couples do not. Let’s explore these further below:
Tax Advantages for Married Couples
Married couples can benefit from several tax advantages, including:
- Income tax splitting – this can lower the couple’s overall tax burden
- Transfer of tax-free gifts between spouses without incurring donations tax
- Potential for lower estate duty taxes when a spouse dies
- Utilisation of spousal capital gains tax exemptions
Spousal Maintenance
Upon separation, a married person can receive various types of spousal maintenance, including:
- Rehabilitative Maintenance: Temporary support to help the spouse become financially independent.
- Permanent Maintenance: Ongoing support where one spouse cannot become self-sufficient.
- Interim Maintenance: Temporary support during divorce proceedings.
Spousal Medical Decisions
A married person can make several medical decisions for their spouse, including:
- Consent to medical treatment or surgery.
- Access to medical records and information.
- Decisions regarding long-term care and living arrangements.
- End-of-life decisions, including do-not-resuscitate (DNR) orders and withdrawal of life support.
Additional Benefits For Married Couples
Other benefits of an official marriage agreement include:
- Automatic rights to intestate succession (inheritance without a will).
- Eligibility for spousal pensions and benefits.
- Legal recognition for joint adoption.
- Protection under domestic violence laws
- Rights to participate in decision-making regarding children, including custody and guardianship.
How Parenting Rights Differ
Parental rights differ between married and unmarried couples, for example:
Parental Rights for Married Couples:
- Both spouses are automatically considered the legal parents of children.
- Both parents share joint guardianship and custody.
- Married couples can jointly adopt a child, reducing legal hurdles.
- Children automatically inherit from both parents without needing a will.
Parental Rights for Unmarried Couples:
- The biological father must formally acknowledge paternity to gain legal parental rights.
- Unmarried fathers do not automatically have guardianship or custody rights.
- Unmarried couples can face additional legal requirements and scrutiny when jointly adopting.
- Children may not automatically inherit from their parents without a will, requiring proper estate planning.
How to Legally Protect Yourself as a Common Law Spouse
If you are a common law spouse, it is very important that you take the necessary steps to legally protect yourself, especially if you and your partner have children together or if you are financially dependent on your partner. A family lawyer can offer expert advice and help you create a cohabitation agreement.
Are you looking for a highly specialised divorce lawyer in South Africa? Here at the Law Offices of Karen Olivier, our team works hard to ensure that your voice is heard. Contact us today to set up an appointment and learn more about our family law services.