Common law Marriage ?

It happens so often.


There are tears in her eyes.


The loss of her life partner has left a deep wound in her heart. “But I was his common law wife”, she says. “Surely I should get something from the estate?”


“Sorry Mrs ….”, I have to reply, “there is no such thing in our law.”


One of the myths believed by many, is that if you have lived long enough together as “life partners”, that your relationship have some form of legal recognition.


So if you are in such a relationship, beware! If the Will of the one does not benefit the other, there is no inheritance in terms of the Intestate Succession Act for the survivor. There is furthermore no claim for maintenance, which would have applied if there was a marriage (as provided for in the Maintenance of Surviving Spouses Act).


A draft Domestic Partnership Bill was published in 2008, but it has not progressed to the point where it became law. There is some legislation that put partners in a few limited instances on the same footing as married spouses, e.g. Domestic Violence Act, Medical Schemes Act, Income Tax and Estate Duty Act and as “dependant” in terms of the Pension Funds Act.


Nothing stops partners to enter into a cohabitation agreement similar to an antenuptial contract. Consult your attorney to assist you if you are in this situation. Otherwise the law will offer you no protection, unless you can prove there was a universal partnership between the two of you, which is not easy to prove.


Such an agreement should amongst other things deal with the following:







Whilst the law generally speaking, does not give effect to cohabitation relationships, it does give effect to a cohabitation agreement, insofar as it does not contain provisions that are immoral or against public policy.

Your attorney will require copy of your identity documents, as well as in the case of the accruel system being applicable, details of the present net value of the estate of each. A typical ANC will cost you ± R2000,00. Our total fee is normally R1 700.