Legal Guide To: Same Sex Partnerships and Marriages

Social Prejudice under the past South African political dispensation prevented the development of legislation that afforded life partners in same-sex partnerships equal protection and legal security as their married peers.  As a result, thereof life partners were unable to partake in effective financial planning and had to face a myriad of financial implications upon the termination of their relationship.

Changing landscape for same sex partnerships

The changing social landscape of South Africa led to piecemeal extensions of the reciprocal rights and obligations of life partners, including the introduction of implied “partnership agreements”, or universal partnerships, which posed an even greater threat to life-partners, specifically those who never actually intended to participate in a communal estate.

Thankfully the current constitutional dispensation permits life partners to formalize their relationships in various ways ensuring the protection and legal security he/she deserves.

We will not only provide you with specialized knowledge to assist you and your partner in this process but will ensure that you are assisted by a professional that appreciates the unique dynamics of your relationship. 

To assist you and your partner to discuss the issue constructively and productively, we created a list of Frequently Asked Questions, which you are reminded, are not intended to constitute legal advice and you are subsequently warned not to act upon its contents without consulting with a family attorney.

Q      Why should I formalize my Life Partnership?

Failure to formalize your life partnership may result in various dire financial implications, for example, but not limited to:

• The division of both you and your life partner’s estates, especially if it is found that an implied universal partnership was established during your relationship.
• Your inability to claim any maintenance from your previous life-partner specifically as South African law does not recognize a duty of support between life partners in the absence of a contract in which they agree upon a duty of support.
• Difficulties claiming benefits from your life partner’s pension fund. Although pension funds may recognize a same-sex life partner as the member’s dependant for purposes of the payment of pension benefits after the member’s death, even if the member did not contractually undertake to maintain the person, the process would be simplified by such an agreement.
• Expensive and protracted litigation in enforcing life partner’s rights and obligations or defending such actions.

Q      In which way can I formalize my Life Partnership

Life partners primarily regulate their rights, duties, and measure of protection by entering into a Life Partnership Agreement or by getting married and registering an appropriate antenuptial agreement.

Q        What is a life partnership agreement.

Life partners may regulate their rights and duties against each other by employing a life partnership agreement (which is also commonly known as a cohabitation or domestic partnership agreement). In this agreement, they may, for example, undertake to maintain each other while the relationship lasts, agree on post-separation maintenance (which is sometimes called “palimony”), regulate ownership of the property each of them owned before the inception of the life partnership, agree on ownership of property acquired during the subsistence of the life partnership, agree on liability for household necessaries, agree on the occupation of the common home during the subsistence of the life partnership and after its termination, and so forth.

Q      Which is best – Marriage or Life Partnership Agreement

The answer to this question will largely depend on your personal preference and circumstances and should be discussed in detail with your life partner, specifically bearing in mind that:

• Life Partnership Agreements are terminated by agreement, whilst marriages can only be terminated by means of divorce.
• Marital Regimes, such as marriages in community of property, out of community of property with the inclusion of accrual, and out of community of property with the exclusion of accrual are almost always enforceable against third parties whereas Life Partnership Agreements can only be enforced against your life partner.
• Life partners will not automatically share in each other’s property as in the case of certain marital regimes.
• Life Partners will not inherit from each other in terms of the rules of intestate succession.
• The duty to maintain is a natural consequence of marriage whereas life partners will need to agree on the subject of maintenance before it may become enforceable.

Please bear in mind that the above list is not intended to be a complete and exhaustive list of the various differences between marriages and Life Partnership Agreements.    

Q             What factors should my partner and I take into consideration when discussing our proposed Life Partnership Agreement

• The just and equitable division of property.
• The earning capacity of the parties.
• Whether the parties own any Immovable Property.
• In the case of sole ownership of the common home by one of the partners, the life partners might wish to expressly arrange reimbursement for the non-owner for improvements done to the property at his or her expense.
• If the common home is leased property, the contract should state the procedure with regard to the evacuation of the property after termination of the relationship.
• A procedure for the division of household goods should be included. A document listing private property owned at the inception of the relationship, or acquired during the relationship can be attached, thereby excluding such property from the division.
• Regulation of financial matters during the partnership.
• Whether one life partner is to support the other party during the relationship if such a partner is unemployed or staying home to care for small children born from the relationship.
• Maintenance arrangements should be done expressly in the document. It is advisable that such maintenance should be rehabilitative in nature, and for a specified period giving such a person time to acquire marketable skills or become self-supportive.
• The provision of life insurance by parties for each other;
• Pension benefits.
• Provision of arrangements for living expenses.
• Provision on death and execution of a last will and testament.
• Termination of agreed arrangements on death, the marriage of parties to each other, separation, agreement to terminate or vary.