Are Domestic Partnerships Protected Under The Law?

More and more couples are choosing to live together without getting married. Whether it’s for financial reasons, personal values or simply convenience, domestic partnerships, also known as cohabitation relationships, have become increasingly common. However, many couples don’t realise that these relationships do not automatically carry the same legal protections as marriage. This lack of protection can lead to serious complications, especially if the relationship ends or if one partner passes away.

In this article, we’ll unpack what rights domestic partners do and don’t have in South Africa and explain how a cohabitation agreement can help protect both partners.

Domestic Partnerships in South African Law

A domestic partnership typically refers to a relationship where two people live together in a long-term, committed, marriage-like relationship but without registering a marriage or civil union. In legal terms, this arrangement is commonly called cohabitation.

It’s important to note that South African law does not automatically recognise domestic partnerships as equivalent to marriage. This means that domestic partners do not have the same rights and responsibilities as married couples, regardless of how long they’ve been together or how committed the relationship may be.

There have been attempts to provide more legal clarity through legislation, such as the Draft Domestic Partnerships Bill (2008), but as of now, there is no comprehensive law that regulates domestic partnerships. That said, certain rights have been recognised in specific contexts through the courts and legislation, but these are somewhat limited.

What Rights Do Domestic Partners Have?

While the legal framework for domestic partnerships remains incomplete, there are a few key areas where some protections may apply:

1. Children and Parental Responsibilities and Rights

Regardless of marital status, both parents have parental responsibilities and rights in terms of the Children’s Act 38 of 2005. If a child is born to cohabiting parents, the mother automatically acquires full parental responsibilities and rights. The father may also acquire these automatically if he was living with the mother in a permanent life partnership at the time of the child’s birth, or has demonstrated involvement in the child’s upbringing.

2. Maintenance Claims (Limited)

Unlike spouses, cohabiting partners do not have an automatic right to claim maintenance from each other upon separation. The court has consistently ruled that there is no legal duty of support between cohabiting partners unless they have a contractual agreement to that effect.

3. Inheritance

Under the Intestate Succession Act 81 of 1987, only legally married spouses can inherit automatically if their partner dies without a will. A domestic partner will not inherit unless they are specifically named in a valid last will and testament.

4. Property Rights

Domestic partners do not automatically share in each other’s assets unless they are co-owners or unless they have a contract that says otherwise. Even if one partner contributed financially or through unpaid work (such as homemaking), they may not have any claim to the other’s assets on separation or death.

Why a Cohabitation Agreement Is Essential

Given the limited protections in law, the best way for cohabiting couples to safeguard their rights is by drafting a cohabitation agreement.

A cohabitation agreement is a legally binding contract that sets out the terms of the relationship and the financial arrangements between the partners. It can cover things like:

• Who owns what (before and during the relationship)
  
• How joint expenses are shared
  
• Rights to shared property or assets
  
• Maintenance obligations (if any) upon separation
  
• What happens to assets if one partner dies
  
• Dispute resolution processes
  

A well-drafted agreement can prevent legal battles and the emotional distress that goes with it in the event of a breakup or death. It ensures clarity and fairness, especially when significant contributions have been made by one or both partners.

Without an agreement, the courts will rely on general contract or property law principles, which may not favour the partner who is financially weaker or who did not formally own any assets.

Final Word

While domestic partnerships are becoming more common, the law is still insufficient to offer full legal protection for cohabiting couples. Without a legally recognised marriage or civil union, partners may find themselves vulnerable.

To avoid unnecessary legal and emotional complications, domestic partners should consider entering into a cohabitation agreement and taking proactive steps to secure their financial and legal rights. Contact Cawood Attorneys today, and we will help you draft an agreement that is valid, comprehensive and tailored to your unique circumstances.