Few rights living together
NO RING: LAW DOES NOT RECOGNISE UNMARRIED COUPLES AS COMMON-LAW SPOUSES
Ensure you have a cohabitation agreement drafted and signed which addresses the risks you face.
Many couples living together refer to themselves as “common-law spouses”, although this term is misleading and can lead them to believe they enjoy certain rights when, in fact, they do not in terms of SA law.
Contrary to popular opinion, living together, or cohabitation, is not a recognised legal relationship in this country, and no legal status is conferred on unmarried couples.
In terms of certain legislation, however, the term “spouse” has been broadened to include cohabiting couples and this can lead to confusion regarding the financial and legal rights of those living together.
These are your rights:
Healthcare
When it comes to medical aid and gap cover, the Medical Schemes Act recognises the partner you are living with as a dependant and you may add them to your policies as an adult dependant.
Similarly, regardless of your marital status, your minor children can be added as child dependants.
If either partner has minor children from a previous relationship, you may register them as child dependants.
Retirement funds
This is a highly regulated field and it is important to fully understand your rights.
As a cohabiting partner, you may want to understand your rights as a beneficiary and whether you have any rights to claim a share of your partner’s pension fund interest should your relationship come to an end.
Let’s examine these two areas separately.
A beneficiary on your partner’s retirement fund
As in the case of a married couple, you and your partner are entitled to nominate each other as beneficiaries on your respective retirement funds.
However, the distribution of benefits in the event of a member’s death is regulated by the Pension Fund Act, in terms of which the retirement fund trustees are required to decide.
The trustees must consider everyone who is financially dependent, wholly or in part, on the deceased member and distribute the benefits accordingly.
Financial dependants can include minor children, children from a previous marriage, elderly parents or even a sibling the deceased has been supporting.
This means that, while your partner may have nominated you as the sole beneficiary, the proceeds will not necessarily be distributed as such.
A claim to your partner’s pension fund interest
The right to claim a share of a member spouse’s pension interest is strictly governed by the Divorce Act, Pension Funds Act and Income Tax Act, and this right is limited to couples who are legally married.
If you are living together, you will have no right to claim a share of your partner’s pension interest should your relationship come to an end.
This can be particularly disadvantageous where the non-member partner is a stay-at-home parent.
If the relationship comes to an end, the partner who is not a member will have no right to claim for a share of her partner’s pension interest.
Insurance
As a cohabiting couple, you are free to nominate each other as beneficiaries on your life policies.
Should your partner die having nominated you as the beneficiary on their life policy, the proceeds of the policy will be paid directly to you in the event of their death.
Maintenance
If your relationship comes to an end for whatever reason, bear in mind that a cohabiting partner has no legal claim for maintenance from the other partner.
Property
The ownership of property when it comes to cohabiting relationships can be tricky, especially if the relationship comes to an end.
If you’re living together in a long-term relationship, everything you buy essentially belongs to you.
If your home is registered in your partner’s name, keep in mind that they have the right to evict you from the property if your relationship ends.
Many couples find themselves in a position where the property is registered in one partner’s name while the other partner contributes financially towards the bond repayments and the home maintenance.
In the absence of a written cohabitation agreement, such financial contributions can be difficult to prove if the relationship terminates, and can severely prejudice the partner, leaving them with no claim to the property.
Inheritance
Something all cohabiting couples need to consider is that they enjoy no right of inheritance should their life partner die intestate.
In the absence of a will, a cohabiting partner will have no right to inherit from their partner’s deceased estate.
SA’s laws of intestate succession do not confer any legal status on cohabiting partners and they are not recognised as heirs.
The only way to safeguard against this is to ensure each partner has a valid will which names the other as a beneficiary.
If you do choose to live together without being legally married, ensure you and your partner have a cohabitation agreement drafted and signed which addresses the risks you face.
Cohabitation is not a recognised legal relationship