Common Law Marriage in South Africa
What is a Common Law Marriage in South Africa?
A common law marriage in South Africa is a relationship between two people who are not legally married but who have been living together for a significant period of time and are considered to be married in the eyes of the law.
In South Africa, common law marriage, also known as "unregistered customary law marriage," is recognized under the Recognition of Customary Marriages Act of 1998. This type of marriage is one that is entered into between two people according to customary law, rather than through a formal civil or religious ceremony.
To be recognized as a valid common law marriage in South Africa, certain criteria must be met:
- Both parties must be over the age of 18 and able to enter into a legal marriage.
- The marriage must be monogamous, meaning that the parties can only be married to each other and no one else.
- The marriage must be entered into freely and without coercion.
- The marriage must be entered into with the intention of creating a permanent union.
- The parties must have been living together for a period of at least 12 months.
If these criteria are met, the common law marriage is considered to be legally valid and carries the same rights and responsibilities as a formal civil marriage. It is important to note that common law marriages are not automatically recognized in South Africa, and the parties must apply to the Department of Home Affairs to have their marriage officially registered.
Can a common law marriage be dissolved in South Africa?
Yes, a common law marriage can be dissolved in South Africa through a process known as "partition and division of assets." This process is similar to divorce, in which the assets and debts of the couple are divided between them.
How do I prove that I am in a common law marriage in South Africa?
To prove that you are in a common law marriage in South Africa, you will need to provide evidence that you have been living together for a significant period of time and that you have a shared domestic and financial life. This can include evidence such as joint bank accounts, shared ownership of property, and the use of a common surname.
What are the rights and obligations of a common law spouse in South Africa?
A common law spouse in South Africa has many of the same rights and obligations as a legally married spouse. These include the right to inherit from their partner, the obligation to support their partner financially, and the right to claim maintenance in the event of the relationship ending.
Can a common law spouse claim maintenance from their partner in South Africa?
Yes, a common law spouse can claim maintenance from their partner in South Africa if the relationship ends and they are unable to support themselves financially. The amount of maintenance will depend on various factors, including the needs and means of the parties and the duration of the relationship.
Can a common law spouse inherit from their partner in South Africa?
Yes, a common law spouse can inherit from their partner in South Africa if their partner dies without a valid will. In this case, the common law spouse will be entitled to a portion of the deceased's estate as prescribed by the Intestate Succession Act.
Do common law spouses have the same property rights as legally married spouses in South Africa?
Yes, common law spouses in South Africa have the same property rights as legally married spouses. This means that they have the right to claim a share of any property that was acquired during the course of the relationship, and they may be entitled to a share of the family home if the relationship ends.
Can a common law spouse adopt a child in South Africa?
Yes, a common law spouse can adopt a child in South Africa, provided that they meet the requirements for adoption set out in the Children's Act. This includes being at least 25 years old, being financially and emotionally stable, and being able to provide a suitable home for the child.
Can a common law spouse be a beneficiary in their partner's will in South Africa?
Yes, a common law spouse can be a beneficiary in their partner's will in South Africa. However, they will only be entitled to inherit if their partner has specifically included them as a beneficiary in their will.
Can a common law spouse enter into a prenuptial agreement in South Africa?
Yes, a common law spouse can enter into a prenuptial agreement in South Africa. Prenuptial agreements, also known as antenuptial contracts, can be used to define the financial rights and obligations of the parties in the event of the relationship ending.
Common law partnership in South Africa
A common law partnership, also known as a "cohabitation relationship," is a relationship in which two people live together as a couple without being married. In South Africa, common law partnerships are not recognized as legal relationships, and the parties do not have the same rights and responsibilities as married couples.
However, the Domestic Partnerships Act of 2006 provides some legal protection for common law partners in South Africa. Under this Act, common law partners may enter into a domestic partnership agreement, which sets out the terms of the relationship and provides for the division of property and financial obligations in the event of a breakup.
It is important to note that a domestic partnership agreement is not the same as a marriage, and it does not carry the same legal rights and responsibilities as a marriage. Common law partners do not have the same inheritance rights as married couples, and they are not entitled to the same benefits, such as spousal support or survivor's pension, in the event of the death of one of the partners.
If you are in a common law partnership in South Africa, it is a good idea to seek legal advice to understand your rights and responsibilities and to ensure that your interests are protected.
Customary law vs Common law
In South Africa, customary law refers to the traditional laws and practices of the indigenous African communities that have been recognized by the state. These laws and practices vary among different cultural groups and are primarily concerned with regulating social and personal relationships, inheritance, and the use and control of land.
Common law, on the other hand, is a system of law that is based on precedent, or past judicial decisions. In South Africa, common law is derived from the Roman-Dutch legal system, which was introduced to the country by Dutch colonialists in the 17th century. Common law is applied in South Africa's courts and is used to resolve legal disputes that are not covered by statutory law or customary law.
Both customary law and common law are recognized and applied in South Africa's legal system, and they coexist with statutory law, which is law that is enacted by the legislature. In cases where there is a conflict between customary law and common law, the courts may apply the principles of common law, unless they are incompatible with the Constitution of South Africa.
