Living together: know your rights

2013-08-30 07:00
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Cape Town - With high divorce rates worldwide and the increasing cost of living, couples often find themselves living together for a while before jumping into marriage, if at all.

This means sharing expenses and buying furniture together - but when these relationships no longer work out, who gets to keep the house?
“Live-in couples, their immediate families and their wills have on many occasions been a recipe for much grief,” according to Soré Cloete, senior legal manager at Old Mutual.

“In South Africa, common law marriages are not recognised."

This means that should you be living with someone, you are unfortunately not automatically regarded as your partner's spouse, even though you may have been living together for a number of years.

“This also means that unless you are specifically recorded as an heir or beneficiary, you won’t be able to inherit from your partner either.”

There have been court cases where a live-in couple have been recognised as a partnership, but each party had to prove what they had separately brought into the relationship in order to claim their rights.

Thinking of living together? Cloete recommends bearing the following points in mind:
Put it in writing

It’s a good idea for couples to draft a written agreement, in which the rights and obligations of each party in the live-in relationship are clearly set out.

In this way, you will know exactly where you stand with each other.

It works like a contract and should preferably be drawn up by a legal expert. Such an agreement will then be enforceable, also in respect of your wills.

Registered live-in relationships

Live-in relationships can also be registered under the Civil Union Act.

A registered relationship is officially called a civil union. The rights of each couple will depend on the type of civil union which is registered.
As with a normal marriage, the couple need to decide whether they want to sign an antenuptial contract to be out of community of property, with or without the accrual system, or whether it’s going to be in community of property.

The purpose of an antenuptial contract is to provide financial protection for both partners.

If you register the relationship as in community of property, you will share all assets and be entitled to half of your partner’s assets, and vice versa.

You will also both be responsible for any debt incurred by either of you.

If you register the relationship as out of community of property, you will need to decide whether the accrual system should be applicable.

If not, all your assets remain your individual property - those that are brought into the union, as well as those acquired after signing the contract.

With the accrual system,, both of you keep ownership of your pre-contract assets. Upon death or divorce, the difference in the growth of the accumulated assets will be divided equally between the partners.

The accrual system will apply by default unless you specifically exclude it in the antenuptial contract.

To end a registered civil union, you have to request a court to terminate it and they will handle it just like a divorce.

Possible legal changes on the cards

“Couples who live together can look forward to clearer financial rights in future," says Cloete.

The proposed domestic partnership bill, once introduced into law, will regulate the legal status of people who are in a domestic partnership, but have not yet tied the knot.

This law will apply to opposite sex and same sex couples.
The bill provides rights and obligations to domestic partners who do not wish to register any form of partnership.

It has identified all the important and relevant aspects of an unregistered domestic partnership such as dividing a property, maintenance and intestate matters (where a person dies without a will).

It is not clear when this will become law.

“You are at a stage in your life when responsibilities and decisions are shared with a partner, so you need to carefully consider your finances,” says Cloete.

- Fin24

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