It is the stuff of nightmares: your partner just passed away and now his family are kicking you out of the house because you were not married.
Many couples do not see the need to get married. They usually also believe that everything automatically passes to the surviving partner because “the law changed”.
However, they often find themselves with no leg to stand on when the sad day comes, and the family throws them out. The good news is that this can be prevented.
You lived with your partner for years, building a home, plate by plate, couch by couch. But without a marriage certificate or a traditional celebration, South African law does not afford you the same legal protections that married couples enjoy. So, what happens if your partner passes away?
Family disputes over assets are common after a death and for unmarried couples, the stakes can be even higher, says Shaka Zwane, head of insurance and fiduciary at Standard Bank.
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Partners’ rights not always protected
“Living together before marriage has become common in South Africa for several reasons. Sometimes it is due to economic circumstances and pooling resources might make financial sense. Other couples believe it is wise to get to know each other’s habits first before committing to marriage.”
According to the 2022 Census Survey Report, around 8 in every 100 couples live together before marriage. Some buy property together, some find a new neutral residence, while in many cases, one partner moves into the other’s home. Regardless of the arrangement, Zwane warns that things can become complicated if one partner dies, especially if there is no valid will in place.
“Unlike married couples, cohabiting partners are not automatically protected by laws such as the Maintenance of Surviving Spouses Act. Many people assume that the longer they lived together, the more likely the law will recognise them as a ‘surviving spouse’ but that is a difficult and uncertain legal route.”
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What are you rights then when you partner dies?
Zwane says there has been progress in recognising rights of couples living together in a permanent relationship.
“In the landmark 2021 case Bwanya v Master of the High Court, the Constitutional Court ruled that partners in permanent life partnerships, where there is a reciprocal duty of support, can inherit and claim maintenance from a deceased partner’s estate.
“This ruling led to legislative changes through the Judicial Matters Amendment Act. It now allows both same-sex and opposite-sex life partners to claim inheritance and maintenance, provided they can prove that the reciprocal duty of support existed in the relationship.”
The reciprocal duty of support is the legal obligation of people in certain family relationships to provide for one another’s maintenance needs, including food, accommodation, clothing and medical care.
This duty primarily applies to spouses, who must support each other during the marriage and parents and children, where parents support children who cannot support themselves and adult children support indigent parents.
The duty is reciprocal, meaning both parties can claim support if they need to and the other can provide it, depending on factors such as their standard of living, income and cost of living.
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Beware: these rights are not automatic
However, Zwane still cautions that these rights are not automatic.
“The process still requires legal action to prove the reciprocal duty of support. The best decision couples can make is to document their wishes in a will and sign a cohabitation agreement.”
“A cohabitation agreement should clearly outline each partner’s responsibilities and rights to shared assets. It should also align with the provisions in the will. Without these documents, conflicts can escalate, leading to financial strain and emotional distress.”
Zwane warns that while recent legal developments improved protections for cohabiting partners, the safest route remains proactive legal planning. “Draft a will. Sign a cohabitation agreement. And ensure your intentions are clear, before it is too late.”
