Love may last forever, but marriage seems to be falling out of favor. Figures show a sharp decline in the number of married adults in South Africa. A question for many unmarried couples who decide to live together is what automatic legal protections apply when your living partner dies?
The short answer is none. South African law does not recognize cohabitation partnerships, nor do we have any equivalent to “common law” marriage. The law certainly allows people who are in a relationship to live together, but it is not marriage in the eyes of the law. and if not DesireUnmarried “spouses” have no automatic right to inheritance.
decline in marriage
This has a significant impact in South Africa, where only 23.8% of individuals were legally married in 2022 (down from 35.6% in 1996). Statistics SA It was found that the proportion of people who had never married also increased from 52.8% to 61.7% during the same period.
those who to do getting married too marrying later in life. In 2014, most brides were 25 to 29 years old. By 2023, the most common age range for newly married women had become 30 to 34 years. The move away from traditional marital structures is evident.
no will, no claim
For unmarried couples living together, the only true legal protection comes in the form of a valid, signed will. If a person dies without a will (the legal term is “intestate”), their unmarried partner has no automatic right to inherit. Although the Constitutional Court has made limited exceptions for “marriage-like” life partnerships, in terms of intestate succession, the law follows a hierarchy of blood relatives, and unmarried partners are not on that list.
Therefore, no matter how long you have been living together, if you die intestate, your living partner is, in the eyes of South Africa's Intestate Succession Act, treated no differently than a friend who has no inheritance rights. This can create all kinds of unpleasantries: claims, counterclaims and legal challenges.
Uniform rules for civil unions
The question of civil unions can create confusion in this context. Under the Civil Union Act, it is a legally recognized partnership between two people, regardless of gender, which provides the couple with the same rights, responsibilities and legal protections as marriage. This gives same-sex relationships the same legal standing as heterosexual relationships – and in both cases, if the civil union is not formally registered, the law treats the partners as unmarried. In that case, if your relationship partner dies without a will, you have no claim to any of their assets, including whether they own or partly own the house in which you live together.
Cohabitation agreement is not equivalent to a will
Some unmarried couples draw up a cohabitation agreement, but it does not give you the legal right to leave or transfer assets such as money, property or assets to anyone in your will after your death. Because this is not a will. If you want to bequeath property you have acquired – either individually or jointly within your cohabitation relationship – you will need to draw up a Will.
Similarly, an unmarried partner has no automatic claim as a beneficiary of his or her cohabiting partner's pension fund. In terms of the Pension Fund Act, the trustees will determine whether the surviving partner was factually and financially dependent on the deceased pension fund member. The co-living partner may be allocated a share of the profits if dependency is proven, but this does not happen automatically. Each case is decided on its merits.
what can you do
Not every couple needs to rush into marriage. For some relationships, cohabitation is the most appropriate arrangement. South African law recognizes a number of formal relationship structures, including the option not to marry.
However, if you are in a relationship, and you want your partner to legally inherit something from you, the strongest legal recommendation is to draft a will and make sure it is correctly signed, witnessed, and kept in safe storage.
A valid Will gives you peace of mind and provides guidance and clarity as to how your assets should be distributed if you die. Drafting a will is an act of love for your partner.
* Sankey Morata CFP, Chief Executive Sanlam Trust.
personal Finance