Many unmarried couples mistakenly believe that they are protected as “common law” spouses. However, South African law does not recognise the concept of a "common law marriage". This means that no amount of time spent living with another person will convert a cohabitation relationship into a marriage.
If you are not married and not a same-sex couple in a civil your partner is not legally entitled to anything when you die. Likewise, you are not legally entitled to anything of your partner’s when they die.
So how do you protect yourself and/or your partner in the event of one of you dying?
According to David Knott of Private Client Trust, the fiduciary division of Private Client Holdings, there is currently limited legal protection afforded to partners who do not marry. “Couples who live together have hardly any rights compared with married couples or civil partners, and most only discover this when their partner dies – leaving them to often face dire consequences due to the fact that there was no prior agreement with regard to assets, maintenance and the like.”
Knott advises that one way to ensure that both parties are protected in the event of one partner dying is to draw up a Will. Another way is to enter into a formal contract.
“This is essential if you want your partner to benefit from any of your assets or even to be able to stay in your home after your death. However long you live together, all your property and assets will go to your blood relations rather than your partner if you die without a Will or contract which stipulates otherwise.”
“Leaving the house you lived in to your partner in your Will is a good start. You may also want to name your partner as the beneficiary of a life insurance policy.”
“Couples should invest the time and money to visit an estate planner. By working with your estate planner, you can ensure that your partner has many of the rights and protections that married couples enjoy as a matter of law,” concludes Knott.
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