You were a handsome young thing once, and now, ten years later, after helping your partner establish his business by doing the books, answering the phone, watering the plants, doing the curtains, and just, well, being there, the company has grown to such an extent that it now pays other people to water the plants.
You two were far too busy to register a civil union or do a commitment ceremony. It’s only recently that the law allowed you to marry and the two of you have been together for so long you thought you were already “married” in the eyes of the world and yourselves. “A piece of paper is just a piece of paper.” you kept saying to each other. “Our love means more than that.”
And then he dumps you – for a younger model. And, all of a sudden, you realise that the house is registered in his name, so is your little convertible. The business, which is now a major source of income for him, is owned by him alone. And you’re being told to get out of the house immediately.
You vaguely remember hearing the term “common law wife” on Boston Legal once. Does it apply to you? (Although you’re certainly not a “wife” nor are you “common”.) And now you sit in the attorney’s office, with tears brimming in your eyes and you want to sue. The question is, do you have a leg to stand on?
Am I a common law “wife”?
Firstly, this is South Africa and Boston Legal and most of the other TV legal shows are American. Forget about terms such as “common law wife” and “alimony”. Yes, I know that the South African media use this language, but the fact remains that none of these terms are actually known to the South African legal system.
We do have “alimony”, but we know it as “maintenance” and the law differs quite substantially. So forget about what you have seen and read.
To add to the confusion, on the 14th of January 2008, the Domestic Partnership Biill (which we will call “the bill”), was published in the Government Gazette. The history of this bill is quite interesting. It first saw the light as “Chapter Three”, in the Civil Union Bill, but was removed in total due to, presumably, time constraints.
The Constitutional Court gave parliament a cut-off date to enact new legislation to enable gay people to marry and, as we now know, Home Affairs took their time to do it. There was just not enough time to incorporate domestic partnerships, the legal term for shacking up together or cohabiting (“saamwoonverhoudings” in Afrikaans), into the Civil Union Bill.
Chapter Three then re-appeared in 2008 as a bill on its own. But, this bill has never been voted on by parliament and is still not yet law.
What will the domestic partnerships bill do?
Should the bill ever become law – it works as follows. The bill distinguishes between “registered” and “unregistered” domestic partnerships. If two parties feel that they do not want to enter into a civil union or get married, for whatever reason, they can choose to register their domestic partnership.
There is no general community of property, but the parties may conclude a partnership agreement, which is registered with the partnership itself, much in the same way as an ante-nuptial contract.
That’s easy enough. But what if, as with our friend, you did not register an agreement. In other words, the Venter wagon was unloaded, the sex happened (or the other way around!), ten years have gone, but the legalities were never attended to.
Our friend is the exact person that the legislators had in mind when drafting this bill. When the bill becomes law, one or both of the parties may apply to the court, after the domestic partnership has ended, through death or separation, for a maintenance order, an intestate succession order (inheritance where there is no will), or a property division order.
The bill states that the court, when deciding on an application and making an order, must have regard to all the circumstances of the relationship, including things such as the duration and nature of the relationship, the degree of financial dependence or interdependence and the degree of mutual commitment to a shared life, among a host of other items.
According to the bill, unregistered domestic partnership are not liable to maintain one another and neither party is entitled to claim maintenance, except where the court finds, that it is just and equitable that maintenance be paid. Thus, you have to convince a court that it is fair that you should receive maintenance.
A surviving partner may also apply for maintenance when the other has died, and much the same criteria as stated above will be considered.
In the same vein, under the bill, a surviving partner can apply to inherit the intestate estate (i.e. where there is no will) of the deceased partner. The third possible order a court will be able to make is, of course, to divide the joint property or the separate property or parts thereof. All relevant factors must be taken into account, and it implies that gifts will remain the property of the recipient.
Now that we know what your rights could be, may a party now apply for an order in terms of the proposed act? No. The bill is supposed to be under consideration by parliament. It has been in limbo for four years now and we do not expect it to become law anytime soon.
The only exception to this is when a partner dies, and there is a pension fund. The surviving partner in a domestic relationship may claim pension benefits if the partner can prove that he/she was dependent on the deceased. This will, however, not affect claims on a partner’s pension while both are alive.
So what do I do in the meantime?
There are three options to consider. The first is to enter into a cohabitation agreement which will be much the same as an ante-nuptial contract, wherein the parties agree how liabilities and assets will be divided. The law basically views the cohabitation as a business partnership wherein the parties agree how to share the profits and losses and who is responsible for what expenses, and so forth. These agreements have no binding power towards third parties such as creditors or do not establish immediate rights of intestate inheritance – it is binding only between the partners.
The parties will have to ensure that they have a joint will drawn up or each one his own will, wherein inheritance is secured for the other party. The problem with this is that a will can be changed at whim, without the knowledge of the other party – even if there was a joint will previously. The parties should also state in their wills that the other party should have the right to attend to them in hospital should one of them be non compos mentis or not in the frame of mind to make his or her own decisions.
It is doubtful how enforceable such provisions would be, especially if the other party will have the right to decide if medical treatment should be continued or not. As it stands now, only the nearest relatives have that right and we know that not all relatives approve of same-sex relationships. It might easily happen that a partner could be totally barred from even visiting at the hospital. A court would have to be approached. And, in many cases, it would have to be done on an urgent basis, which obviously has a huge cost component. If a court will agree to this remains to be seen.
The other option regarding property rights is to approach the court to have a “universal partnership” declared. For that, you will have to prove the elements of a partnership, such as each party had to contribute, even if it was in the form of skills or labour and not just money. The purpose of the partnership is the joint benefit of both and the object should be profit or, put in another way, acquiring wealth. The parties would also have to be in agreement that a partnership existed.
It is important to note that this year, in March, the Supreme Court of Appeal not only recognised such universal partnership as to have been part of our law since Roman times, but also that it can be entered into tacitly – meaning that it does not have to be expressed, even verbally. The court can make a finding that a universal partnership existed from the conduct of the parties only.
However, it takes a court to declare a relationship a universal partnership, expressed or implied, meaning having to go to court and all the associated legal costs – and lots of them!
Your best option at the moment is to consult your lawyer and get a cohabitation agreement in place to have at least some of your rights protected as well as a current will. For legal help, see www.attorneys.co.za and search ‘cohabitation’ and your area. Several firms will be listed – and don’t forget to first get a quote.
Of course, the third option is to get married or enter into a civil union, which will automatically offer you a great deal of protection in your relationship – in the same way that heterosexual married couples are protected. Suddenly marriage doesn’t seem like such an outdated, or heterosexual, concept, now does it?