New legislation offering protection to people in common-law relationships is long overdue.
When the boyfriend of Dolly Hendricks* booted her out of the house, allowing her to take away only a small suitcase of clothing, she wasn’t too concerned: after all, they had been together for more than a decade, and she assumed she would be protected.
Sadly, Hendricks made a common mistake: the assumption that cohabitation turns into a common-law marriage after a certain length of time.
Because Hendricks and her boyfriend had not signed a contract, she was not entitled to any of his possessions, items she had seen as shared because she supported him while he built up his career.
Hoodah Abrahams-Fayker, an attorney with the Women’s Legal Centre, says the problem that someone like Hendricks would face is that domestic partnerships are not legally recognised in South Africa.
She notes that, today, about 60% of couples live together before a marriage, but this does not translate into a common-law marriage, regardless of how much time the couple lives together. “Census data and research have found that the trend of cohabiting without marriage is increasing. In the 1996 census, some 1.2-million people reported themselves as unmarried but living together; in the 2001 census, this number doubled to 2.4-million.”
Abrahams-Fayker says domestic partnerships often happen when women have no choice in the form that the relationship takes, for example when the man is the sole breadwinner. In such cases, she says, men who so wish may feel free to take advantage of the situation to avoid social and legal responsibilities.
Kate Smith Hemmings of SHK Attorneys and Conveyancers says leaving a domestic partnership is daunting for a party who has been financially dependent on the other.
But a Bill that has been in the works for six years would have provided protection to anyone in a domestic partnership that does not have a contract to define it. The Domestic Partnerships Bill was drafted in 2008 to give partners equality and dignity, complying family law with the Constitution.
Jolène Leeuwner-Maritz, of Leeuwner Maritz Attorneys, says the six-year delay is probably because of the need to set up registration infrastructure and officers, though this could not be confirmed. The home affairs department – which is championing the law – did not respond to a request for comment.
Abrahams-Fayker says the lack of a legal framework that recognises domestic partnerships has a significant impact when the partnership ends because one party may not have fair access to assets that belong to the other party if the asset has not been jointly registered.
“Women predominantly bear the prejudicial impact of the failure of the state to legislate in this respect.
“The adverse economic effect of the dissolution of relationships on women is exacerbated by the fact that women have generally been historically disadvantaged and remain vulnerable in society.”
But the principle of a “universal partnership” aids cohabitees by giving them the right to a share in the property acquired during the relationship, says Abrahams-Fayker. A universal partnership refers to an agreement between two parties who share the same responsibilities and obligations as a married couple, including present and future assets, making all their property jointly owned.
Abrahams-Fayker says in such an a greement a contract should be drawn up that governs the terms of the relationship and calls upon courts to enforce those terms.
“Currently, the law does not provide any protection should you not enter into a written contract; however, legal remedies are available if you are able to prove the existence of a tacit universal partnership, which is normally a difficult and expensive exercise.” A contract can only be enforced between the parties, but has no bearing on third parties, such as creditors.
Fraught with dangers
Abrahams-Fayker notes that under the current law, if a party in cohabitation relationship dies without leaving a will, the other party is not entitled to inherit or claim maintenance from the estate. Smith-Hemmings says such parties cannot expect to be aided financially, either during or after the relationship. Smith-Hemmings adds that one party could even be evicted from the family home, although minimal relief is available under the Domestic Violence Act.
On the other hand Leeuwner-Maritz notes that once a contract is in place, parties cannot use joint property to the exclusion of the other party, or get rid of any partnership property without consent. Contracts can also allow for maintenance to be paid should a relationship end, although this will only be in force until the party who receives the payout is deemed to be permanently cohabitating with another person, adds Leeuwner-Maritz.
*Not her real name
A universal partnership will exist if the following are present:
- Each of the partners brings something into the partnership, whether money, labour or skill;
- The partnership should be carried on for the joint benefit of the parties;
- The object should be to make a profit; and
- The contract should be a legitimate one.