South African couples that are not married must carefully consider what happens if one of them dies.

Stacy Rouchos from Bannister Trust said that the law and its administration tend to lag far behind humankind’s evolution, which is starting to affect couples who are essentially married.

“A client of mine was recently left in a predicament after losing his partner of 22 years,” said Rouchos.

“The red tape and legal complexities surrounding the administration of a deceased estate, especially for an unmarried partner as opposed to a legal spouse, served as a stark reminder of the importance of organising one’s affairs at every stage of life.”

“It often happens that unmarried couples mistakenly believe they are protected as “common law” spouses and, as such, are afforded the same level of protection as married couples regarding inheritances and taxes.”

“However, South Africa does not recognise the concept of a common law marriage. Living with a partner for an extended period, even with children, does not necessarily lead to financial protection.”

Civil marriages are the most common form of marriage in South Africa, but customary marriages, religious marriages, and civil unions all carry similar protections and financial benefits.

South Africans that live together under the assumption that their years of partnership and cohabitation will give them the same rights afforded to married couples may be in for a harsh reality.

“At the heart of the matter, if you are not married and do not have a cohabitation or universal partnership agreement, you and your partner are not legally entitled to any share of each other’s estate, either upon separation or death.”

“Even during the relationship, an unmarried couple will not receive the same benefits as a married couple unless a written agreement proves they are life partners.”

“This means, for example, that donations tax applies to donations between partners, any assets received in a will from one partner will be liable to Capital Gains Tax and estate duty, and any inherited properties will have transfer duty levied on them.”

Unmarried partners can also not inherit as intestate heirs under the Intestate Succession Act or claim maintenance from their partners’ former estates.

Maintenance for children can still be claimed, provided the child is born of the couple’s union. However, this is often not thoroughly enough to provide for a partner and their children, particularly compared to the maintenance provided to married couples.

What to do

For those who do not wish to get married, there are still ways to ensure that both parties are financially protected in the event of the other’s death.

This can be done by drawing up a will or entering into a formalised contract.

Without these protections, one’s partner may not receive any benefit from any assets that one leaves behind or even be allowed to stay in their shared home.

“Since 2012, there have been some important developments in South African law, particularly with the Butter’s case. An exception to the above safeguarding rules is if your relationship can be defined as a universal partnership.”

“However, the commencement of a relationship does not automatically mean that a universal partnership exists. Neither does living together or having children together constitute a universal partnership.”

“A universal partnership only exists if both parties can prove that the purpose of their relationship is to pool their assets and resources for mutual benefit, specifically to make a profit. There must also be an intention to form a universal partnership.”

“Proving the existence of a universal partnership without a signed document is possible, but it involves a lengthy court case and requires substantial evidentiary support, which is both costly and time-consuming.”

Thus, those in a long-term relationship who don’t want to get married must formalise their financial arrangements in a written agreement.