Generally, in South Africa, if you are not married to your partner you have no claim to your partner's assets, and you have no claim to maintenance from him or her.
Unlike the United States, we do not have the concept of a "common law" spouse, and nor do we have legislation that regulates what we would call domestic partnerships.
What we do have is a Domestic Partnership Bill, that was gazetted in January 2008, which is not yet law.
However, and given that the Bill and has not made any great strides, there have been recent developments in case law in terms of which the South African Courts have recognised in that a universal partnership may exist between the parties.
A universal partnership is based on an old Roman Law concept, that of a societas universorum bonorum.
In order to establish a universal partnership, certain legal requirements must be satisfied, and these requirements are much the same as those for an ordinary business partnership. That being said, universal partnerships will differ from couple to couple and, importantly, not all contributions have to be financial in nature, and there does not have to be a formal written agreement.
There appear to be two schools of thought in relation to universal partnerships:
- That they are similar in nature to a marriage and, if you wanted the consequences of a marriage to be applicable to your relationship, that you should have been civilly married;
- That there are certain vulnerable members of society that may not have the freedom of choice to marry for a variety of reasons.
Whichever argument one finds convincing, the reality is that the courts are recognising these relationships and making orders in accordance therewith.
At the heart of a universal partnership, is the agreement between the parties (tacit or otherwise) that they agree to put all their assets in a communal pot and that, should the partnership later dissolve, that the assets should be distributed between the parties in accordance with the agreement between them. This does not necessarily mean that you keep what you each brought into the relationship, and there exists the potential for your partner to share in assets that you have accumulated.
Accordingly, if you are in a long term relationship have chosen not to enter into a civil marriage or formally regulate your relationship, it may be prudent to consider entering into an agreement to control what will happen to your respective assets in the event that you and your partner decide to go different ways.