That piece of paper does matter

If you are in a long-term relationship, it might be time to make it formal and put a contract in place.

Hilary Dudley, Maitland trust manager in Durban, says many partnerships in South Africa are recognised by law now but, unless legalised, protection can be limited.

On November 30 2006 South Africa became the 14th country in the world and the first in Africa to afford same-sex couples equal protection before the law by enacting the Civil Union Act.

Dudley says that as a result marriage and civil union carry equal weight and the laws that apply to heterosexual couples also apply now to same-sex couples.

Although on face value it appears that South Africa has extended protection to partners, the reality is any opposite-sex or heterosexual domestic partnerships that are not formalised in terms of the Civil Union Act or the Marriage Act receive limited recognition in South Africa.

Dudley says if a couple has not chosen to formalise the relationship through marriage or a civil partnership, they might have legal recourse only on proof of the existence of a universal partnership, something which might be difficult to prove.

A way to increase legal protection and prove universal partnership is to sign a partnership contract, Dudley says. This contract would stipulate that both parties have made a contribution to the relationship which improves the life of both partners. This could be financial or physical.

For example one partner could be the breadwinner while the other takes care of the domestic arrangements. The key is that both give something for the benefit of the partnership.

Dudley says you need to prove that your lifestyles are improved by living together rather than living separately. It is advisable that you get some legal advice before entering into a contract to ensure that it meets the requirements of a universal life partnership.

You also need to ensure your will is up to date so that your partner gets the benefit you would like him or her to receive when you die. Your partner might not be protected legally if you died intestate.

Even if you have formalised your relationship through a civil union, you might need to make changes to your will.

The exclusion clause in your will provides for inheritances and trust benefits to be excluded from claims of the spouses of your heirs or spouses of the trust beneficiaries.

If you wish this exclusion to be effective, the clause should be amended to refer to civil partnerships in terms of a civil union and domestic partnerships, as well as to marriages.

Legal protection for formalised relationships
If you have formalised your relationship through the Civil Union Act or Marriage Act, there are several laws that protect you financially.

  • Matrimonial Property Act: This governs marital regimes and whether couples are married in or out of community of property.
  • Transfer Duty Act:
    Among other things this contains exemptions for transfers from the estate of a pre-deceased spouse.
  • Estate Duty Act:
    This provides for a spousal exemption from estate duty on bequests to the surviving spouse.
  • Pension Funds Act:
    Although the member can elect his or her beneficiaries, the trustees can override these and will consider the rights of a spouse or legal partner.
  • What constitutes a domestic partnership?
    Hilary Dudley says the draft Domestic Partnership Bill before Parliament recognises that there is little legal recognition or protection for opposite-sex couples in permanent domestic partnerships and that this runs counter to the Constitution.

    It seeks to enable opposite-sex couples to formalise their relationship by means of a registered partnership.

    But one of the criticisms of the draft Bill is that it provides only broad definitions of what actually constitutes a domestic partnership.

    Dudley says this makes it difficult for you to know if you are indeed in a domestic partnership. It has also attracted criticism because at least one of the partners must be South African before a a domestic partnership can be registered.

    Dudley says another concern is that in the event of a break-up the redistribution of the property must be made within two years. This does not apply to the termination of civil marriages, civil unions or customary marriages.

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