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
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:
What financial arrangements will apply during the relationship?
What happens if one becomes unemployed?
If there is separation between partners, how will the various assets be divided?
In the event of death, will one be liable or eligible for maintenance or financial
In the event of separation, who will move out? What about the existing lease and
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.