Cape Town, 14 July 2015
Perhaps, like recently split Reality TV couple Kourtney Kardashian and Scott Disick, you own property together and have started a family. If the relationship ends - either through break-up or death - you'll be protected under a law which governs 'common-law' partnerships, right? Not so, says Clive Hill who is a legal adviser for Sanlam Trust. Unmarried couples remain unprotected under South African law, even if they've been together for decades.
Hill says that South Africa is progressive in protecting 'non-traditional' couples, with laws passed to govern traditional marriages, customary unions - such as polygamous relationships or unions under Islamic law - and civil unions such as same-sex partnerships. “In the US, a Supreme Court judgement which effectively forced all states to allow same-sex marriage was passed only recently. It is very pleasing to know that South Africa is ahead in embracing unions of most 'shapes and sizes'.
“But, there is a very common misperception that co-habiting, unmarried couples are deemed to be 'common law' couples and that, should the partnership end, they will have recourse under law. Unfortunately this is not the case. The law does not recognise co-habiting heterosexual couples and individuals have frequently been 'burnt' because they operate under the mistaken belief that they are protected.”
Hill says that while SARS and pensions funds do recognise common-law relationships - although the onus is on the couple to prove certain details of the relationship - the Domestic Partnerships Bill which sought to provide wider and common protection to a broad group of people in domestic relationships, has not been passed as an act yet.
He says in terms of succession planning, if someone is in a long term relationship and one partner passes away without a will, their children would have a claim for maintenance against the estate (in accordance with the Children's Act) but the surviving partner is not recognised when the estate is divided according to current intestate succession regulations (the Intestate Succession Act).
Bulelani has been with her partner Tshepo for eight years and they share a six-year-old daughter. They've a joint bank account and share a bond and car. If Tshepo dies, Bulelani believes she'll inherit the entire estate. After all, they're a family right? Well not really. In terms of the law his side of the family has every right to lay a claim to his estate as he died an unmarried man. But there are steps she can take while he is alive to ensure she and her daughter are protected:
Hill concludes that working with a financial planner to ensure that partners and children are protected financially, for example through life insurance, which provides immediate cash, is also highly recommended.