Concubines, cohabitation or “living together” arrangements are on the increase in modern societies, where most individuals choose not to conclude and register a civil union or enter into a marital relationship.

The reasons for these decisions vary from individual to individual, but can in most cases be ascribed to the individual’s fear of subjecting his/her estate to division at the termination of the civil union or marriage.

These individuals, in most cases, continue to live together as life partners for extended periods of time, employing each other at their respective businesses without remuneration, sharing common bank accounts, buying common property and more often than not, one individual will resign from his/her employment to tend to the needs of their children.

Ironically, most of these concubines or cohabitation arrangements will end in the division of a common estate.

Although the South African law does not recognise the so called “common law” wife or husband, the courts will very often find that an implied or tacit partnership was formed between the parties, that a “joint estate”came into being and that this joint estate must be divided amongst the respective parties.

The essentials for the formation of such a partnership are (1) that each of the partners brings something into the partnership, whether it be money, labour or skill; (2) that the relationship should be carried on for the joint benefit of the parties; and (3) that the object should be to make a profit.

The court may find that one or both of the two types of partnerships were formed. The first is the societas universorum bonorum – also referred to as the societas omnium bonorum by which the parties agree to put in common all their property, present and future. The second type consists of the societas universorum quae ex quaestu veniunt, where the parties agree that all they may acquire during the existence of the partnership, from every kind of commercial undertaking, shall be partnership property.”

Please note further that :-

-Cohabitation is recognised under the Domestic Violence Act.

-The Medical Schemes Act 131 of 1998 defines a dependant to include a ‘partner’.

-In terms of the Income Tax Act and the Estate Duty Act, cohabitants are treated as spouses for the purposes of tax legislation, and the word ‘spouse’ is defined to include a permanent same-sex or heterosexual relationship.

– Either partner in a cohabitation relationship may name the other as a beneficiary in a life-insurance policy. The nomination will, however, have to be clear, because a clause in an insurance policy that confers benefits on members of the insured’s ‘family’ may cause problems. And if a policy, for instance a car insurance policy, covers/excludes passengers who are members of the insured’s family, this provision does not operate to the benefit/detriment of the insured’s partner.

-The law does not distinguish between married and unmarried parents in regard to the obligation to maintain children. Decisions regarding care and contact are based on what is in the best interests of the child. Children are protected if the couple is not married since both biological parents are responsible for the maintenance of their children. The father and mother are both still liable for maintenance if the couple splits up.  This will not apply to same sex couples as both cannot share a biological link with the child.

-A domestic partner may receive pension fund benefits as a nominee. A domestic partner may also receive pension benefits as a factual dependant if he/she qualifies as such under the definition of ‘dependant’ in the regulations or conditions of that particular fund. A domestic partner will, however, not be entitled to their partner’s pension interest on termination of their relationship.

-Under the South African Compensation for Occupational Diseases Act, 1997, a surviving domestic partner may claim for compensation if their partner died as a result of injuries received during the course of work, if at the time of the employee’s death they were living as ‘husband and wife’.

-When a cohabitant dies without a valid will, their partner has no right to inherit under the Interstate Succession Act.

-A cohabitant can also not rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance on the death of a partner.

– There is no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance.

– South African banks normally do not allow joint accounts for cohabitants

It is clear that the law, as it stands, is unsatisfactory, simply because it does not place cohabitants on the same footing as partners in a marriage or civil union and more specifically as a universal partnership does not require an express agreement for it’s formation.

Cohabitants should therefore not delay in protecting their interests by concluding a cohabitation agreement so as to regulate the issues referred to above and the nature of their relationship.