Often due to love, conformity and contentment we don’t think of a future apart from one another and rather embrace the present. People move in with one another as a result and conclude their affairs in a manner akin to married parties.
In some countries when a couple lives together as a family for some time, the law may regard that a common law marriage exists between them, or at least, that there is a degree of rights conferred. It is a common misconception that this also applies in South Africa. This does not apply in South Africa. The misconception is mostly based off of the fact that many countries to where South Africans immigrate and or Common Wealth Countries and certain states in the United States of America recognise common law marriages, or at least partially confers certain rights to the parties. The closest thing that South Africa has to this is the universal partnership.
A universal partnership is an argument relied on if two parties live together for a prolonged time. To substantiate this argument the following need to be proved:
The aim of the partnership was to make profit.
Both parties must have contributed to the enterprise.
The partnership must operate to benefit both parties.
The contract between the parties must be legitimate.
There must be valid consent.
There was an intention to create a legally binding partnership agreement.
Let us take the example of a couple that has lived together for 17 years. The man provided the income, while the woman stayed at home and took care of the child and the household. After 17 years the man simple moves out, and refuses to pay anything towards the woman for "rehabilitative" maintenance. The common law principle, as stated previously does not apply, the woman will need to rely on a universal partnership agreement to go to court to claim maintenance for herself.
It has to be noted that due to the aforementioned factors, universal partnerships are very difficult to prove.
In these set of facts this argument may well hold water and may not be difficult to prove, but many universal partnerships the facts are not as clear cut as the above.
The safest and recommended way to protect both parties that are living together for a prolonged period of time, especially where there is a minor child or speak of one in the future, is to conclude a co-habitation agreement.
These agreements can be as comprehensive as other family law agreements of married couples, herein clear agreements and understandings in respect of the following can be concluded:
Moveable Property (vehicles, appliances, furniture, etc).
Immoveable Property (Houses, Plots of Land, Farms, etc).
Financial Arrangements (Maintenance, Payments, Insurance, responsibility of debt, etc.)
Children (who will take care of the child / stay at home, schooling, etc)
An argument is often that to conclude an agreement ruins the magic or romance, but the simple fact is that neither person can foresee what may happen in the future, and it is better to safeguard both of you to avoid unnecessary and expensive arguments in court should something happen.