My partner and I have been together for several years. He refuses to get married because he apparently has a problem with the institution of marriage. How can I (as the woman) arrange things between us contractually?
Marriage is about more than just the fairy tale wedding, dress and diamond ring. A married couple has legal rights and protection that a couple merely living together don’t have, even if your cohabitation has been for a lengthy period of time.
In terms our law, common law marriages and ‘domestic partnerships’ are not considered to be a marriage to which legal rights and consequences attach. In certain cases, a relationship of cohabitation can be equated to being a ‘universal partnership’, but the existence of such a partnership can be extremely difficult to prove.
A universal partnership could be proven to exist if the following requirements for its existence have been met:
– Each party must bring something into the partnership, whether it be money, labour or skills
– The partnership must be for the joint benefit of both parties
– The objective should be to make profit
– The partnership goal should be legitimate
So what are you to do if you live together, are not planning to get married and have concerns as to whether your arrangement would qualify as a universal partnership?
One way is to conclude a written cohabitation agreement in terms of which the rights of parties during and at termination of the relationship are spelled out.
Much as our law attaches certain rights and consequences to a marriage, this agreement can help you regulate your relationship consequences such as living arrangements, financial contribution to the household, division of property in the event of the relationship ending, et cetera.
Importantly, such an agreement does not grant you the rights and benefits accorded to a civil marriage by our law, but it can provide security for the parties in respect of the consequences of their relationship.
For example, our law does not provide for a duty of support between parties not married. However, parties can provide for maintenance in their cohabitation agreement – a prudent move if one party intends putting his/her career on hold to raise children.
Another way is to ensure that the wills of both parties are in order and provide for each other in the event of the death of one of the parties.
If you live together unmarried and do not have a separate will, you will not automatically be able to inherit from your partner in the event of death, and you may find that the deceased’s estate is passed on to your partner’s blood relatives.
The above are probably of the most important steps you can take to ensure that your partnership arrangements are clear, and the rights and consequences of both parties are spelled out during the relationship, and following its termination through break-up or death.
Steyn Jooste – DBM Attorneys