Cohabitation, Living Together and Maintenance and Support.
Cohabitation, also known as a common law marriage, living together or a domestic partnership, is not recognised as a legal relationship by South African law. There is, consequently, no law that oversees the rights of parties in a cohabitation relationship. Cohabitation usually refers to people who, regardless of gender, live together without being validly married to each other. In the past, these relationships were labeled as extramarital cohabitation. Put simply, men and women living together do not have the rights and duties married couples have.
Simply because their relationship is not recognised by the law as a marriage, the rights and duties that marriage confers do not apply. This is the case regardless of the duration of the relationship. Therefore, in contrast to prevalent belief, the premise that if you stay with your partner for a particular amount of time a common law marriage comes into life whereby you will get certain benefits is wrong.
In South Africa, cohabitation has turned out to be more common over the past few years and the number of cohabitants grows by almost 100 per cent each year.
The draft Domestic Partnerships Bill was published in January 2008, but is not yet implemented into legislation. Till such time, the position of cohabitants would certainly not be on equal footing to spouses in a marriage or partners in a civil union. Some legislation genuinely does however provide some level of protection to partners but these are exemptions to the rule for instance, under the South African Compensation for Occupational Injuries and Diseases Act 130 of 1993, as amended in 1997, a surviving domestic partner could claim for compensation if their partner passed away as a result of injuries received during the course of work, if, at the time of the employee’s death, the parties were living together as ‘husband and wife’. Furthermore, cohabitants can also include each other in their medical aids provided that the rules of the medical aid permit this and as beneficiaries under insurance policies or as dependents under pension funds. In South African law, certain family relationships, such as parent and child and husband and wife, generate a duty of support.
The common law has been stretched in line with the Constitution to protect contractual rights of support in the same way as the common law duty of support.
In Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening),1998 (4) SA 753; 1998 (10) BCLR 1207 the court recognised a contractual right to support stemming from a marriage in terms of Islamic law for purposes of a dependant’s action.
In Du Plessis v Road Accident Fund, [2003] ZASCA 86 the common law action by a spouse, for loss of support against the wrongdoer who unlawfully kills the other spouse, was widened to partners in a same-sex permanent life relationship similar in other respects to marriage, who had tacitly undertaken reciprocal duties of support.
The Constitutional Court in Satchwell v President of the Republic of South Africa & another, 2003 (4) SA 266 (CC); 2004 (1) BCLR 1 (CC) found that the common law duty of support, might, in certain circumstances, be expanded to persons in a same-sex relationship. Madala J, writing for the court, said as follows:
‘The law attaches a duty of support to various family relationships, for example, husband and wife, and parent and child. In a society where the range of family formations has widened, such a duty of support may be inferred as a matter of fact in certain cases of persons involved in permanent, same-sex life partnerships. Whether such a duty of support exists or not will depend on the circumstances of each case.’
In Khan v Kahn 2005 (2) SA 272 (T) it was found that there was a responsibility on a husband to maintain his ex-wife to whom he was married in accordance to Muslim rites in circumstances where marriage is in fact polygamous.The questions for consideration by the Court concerned whether there was a legal duty on the appellant, by virtue of the provisions of s 2(1) of the Maintenance Act 99 of 1998, to maintain the respondent, to whom he had been married by Muslim rites, accepting that the marriage was in fact a polygamous one.
The court was of the view, that the preamble to the Maintenance Act emphasised the establishment of a fair and equitable maintenance system premised on the fundamental rights provided in the Constitution of the Republic of South Africa Act 108 of 1996. It held, further, that the common-law duty of support was a flexible concept developed and expanded over time by the Courts to cover a wider range of relationships. The considerations which Courts have considered in determining whether a specific relationship gave rise to a duty of support included whether the complainant required financial aid and whether the relationship between the parties created a duty to maintain. The times and society in which we live also needed to be taken into consideration.
In both Amod and Khan, the parties in respect of whom a duty of support had been alleged had been married to each other in terms of Islamic law. The ratio of the court, in both cases, was that the marriage between the parties had given rise to reciprocal contractual duties of support on the part of the parties to that marriage.
In Du Plessis, Cloete JA, having had regard to the facts of that matter, determined that the plaintiff had proved that the deceased had undertaken to support him and that the deceased had owed the plaintiff a contractual duty of support. The learned judge of appeal said:
‘In the present case the case for drawing an inference that the plaintiff and the deceased undertook reciprocal duties of support is even stronger. The plaintiff and the deceased would have married one another if they could have done so. As this course was not open to them, they went through a “marriage” ceremony which was as close as possible to a heterosexual marriage ceremony. The fact that the plaintiff and the deceased went through such a “marriage” ceremony and did so before numerous witnesses gives rise to the inference that they intended to do the best they could to publicise to the world that they intended their relationship to be, and to be regarded as, similar in all respects to that of a heterosexual married couple, ie one in which the parties would have a reciprocal duty of support. That having been their intention, it must be accepted as a probability that they tacitly undertook a reciprocal duty of support to one another.
Further support for this finding is the fact that the plaintiff and the deceased thereafter lived together as if they were legally married in a stable and permanent relationship until the deceased was killed some 11 years later; they were accepted by their family and friends as partners in such a relationship; they pooled their income and shared their family responsibilities; each of them made a will in which the other partner was appointed his sole heir; and when the plaintiff was medically boarded, the deceased expressly stated that he would support the plaintiff financially and in fact did so until he died.
Amod, Khan and Du Plessis were determined on the basis of contracts entered into by the respective parties, and are not authority for the assertion that there is a duty of support, by operation of law.
The question whether the relationship between the parties, a heterosexual couple who choose to live together, free from the bonds of matrimony, gives rise to a legal duty of support, can, be addressed with reference to Volks NO v Robinson & others 2005 (5) BCLR 446 (CC).
In that matter the Constitutional Court was concerned with the interpretation and constitutionality of s 2(1), read with s 1, of the Maintenance of Surviving Spouses Act 27 of 1990, which confers on surviving spouses the right to claim maintenance from the estates of their deceased spouses when they are not in a position to support themselves. The court had to decide whether the exclusion of survivors of permanent life partnerships from the protection of the Act established unfair discrimination. Skweyiya J, writing for the majority, referred with approval to the comments made by O’Regan J in Dawood & another v Minister of Home Affairs & others; Shalabi & another v Minister of Home Affairs & others; Thomas & another v Minister of Home Affairs & others that:
‘Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another.
The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function.
The Constitutional Court was of the view that the law may distinguish between married people and unmarried people and may, in appropriate circumstances, accord benefits to married people which it does not accord to unmarried people. The learned justice reasoned as follows in para 55:
‘There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouses’ rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married.’
The court found that whilst there was a mutual duty of support between married persons, ‘no duty of support arises by operation of law in the case of unmarried cohabitants’. This was an unequivocal statement of the law by the Constitutional Court. Skweyiya J went on to state that to the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement and only to the extent of that agreement.
In McDonald v Young (292/10) [2011] ZASCA 31; 2012 (3) SA 1 (SCA) the facts on which an unmarried appellant focused in support of his claim that the respondent had assumed a duty of support towards him were the following:
The appellant in the McDonald case's argument that the parties had entered into a tacit agreement concerning maintenance could not be sustained. The appellant relied on a tacit contract which was inconsistent with his evidence. The appellant believed and gave evidence to the effect that he and the respondent had concluded an express agreement in respect of the property, the aim of which was to ensure that he was financially independent. Implicit in this was the intention that he would not have to rely on the respondent, or any other person, for financial support. In the circumstances, the appellant could not have formed the intention to contract tacitly with the respondent. Having regard to his evidence that the purpose of the joint venture agreement was to render him financially independent, the appellant could not at the same time have contemplated, that the respondent would continue to support him for the rest of his life. A tacit contract must not extend to more than the parties contemplated.
In Rand Trading Co Ltd v Lewkewitsch the parties had erroneously assumed that there was a contract in existence between them. The court did not accept the argument that the company’s conduct in recognising the existence of the lease, paying the rent and otherwise performing in terms of the contract had created a binding contract. Solomon J said:
‘But I think the answer to that argument is a very clear one, and it is this ─ that all these facts are explained on the simple ground that both parties erroneously assumed that there was a contract in existence between them . . . And the mere fact . . . that both parties erroneously assumed that there was a contract in existence at that date altogether precludes us from now inferring a new contract.’
The appellant’s stated belief, that there was a specific contract between him and the respondent in respect of the property, precluded the court from drawing an inference to the effect that the parties had entered into a tacit agreement the terms of which had been inconsistent with the express agreement to which he testified. Secondly, the appellant’s evidence was that the respondent’s attitude had always been that in the event that their relationship ended, he would receive no financial benefit from her. This conduct, on the part of the respondent, was inconsistent with a tacit agreement to support the appellant.
The appellant’s explanation for drafting the various proposals regarding the financial relationship between him and the respondent was as follows:
‘Well, the motivation behind it at that particular time, we were going through quite a patchy period; we were arguing and not agreeing on a lot of things. And it appeared to me that all of a sudden my situation could alter and I’d be left standing high and dry. And I discussed it with Lesley [the respondent] and I felt that if we had something in writing, and if that did occur at least I had something to fall back on . . . ’. (Emphasis added.)
A tacit contract is established by conduct. In order to establish a tacit contract, the conduct of the parties must be such that it justifies an inference that there was consensus between them. Generally there must be evidence of conduct which warrants an inference that the parties meant to, and did, contract on the terms alleged. It was clear from the appellant’s evidence that there was no consensus between the parties.
In the unreported matter of Brenda Jacobs v RF Case number 21427/2017, Judge Colleen Collis ruled that the courts basically had to keep up with the times, particularly if regard is given to the fact that relationships and marriages have developed. She granted an order in favour of a woman whose partner passed away in a car crash. The two had were living together, even though he was still married to his estranged wife at the time of the accident. The woman claimed maintenance and support from the Road Accident Fund as he had supported her financially. But the RAF declined to pay up, as the couple were not legitimately married. In granting the order, Judge Collis remarked: “Cohabitation outside a formal marriage and, dare I say, even where one of the parties is still married, is now widely practised and accepted by many communities.”
Simply because their relationship is not recognised by the law as a marriage, the rights and duties that marriage confers do not apply. This is the case regardless of the duration of the relationship. Therefore, in contrast to prevalent belief, the premise that if you stay with your partner for a particular amount of time a common law marriage comes into life whereby you will get certain benefits is wrong.
In South Africa, cohabitation has turned out to be more common over the past few years and the number of cohabitants grows by almost 100 per cent each year.
The draft Domestic Partnerships Bill was published in January 2008, but is not yet implemented into legislation. Till such time, the position of cohabitants would certainly not be on equal footing to spouses in a marriage or partners in a civil union. Some legislation genuinely does however provide some level of protection to partners but these are exemptions to the rule for instance, under the South African Compensation for Occupational Injuries and Diseases Act 130 of 1993, as amended in 1997, a surviving domestic partner could claim for compensation if their partner passed away as a result of injuries received during the course of work, if, at the time of the employee’s death, the parties were living together as ‘husband and wife’. Furthermore, cohabitants can also include each other in their medical aids provided that the rules of the medical aid permit this and as beneficiaries under insurance policies or as dependents under pension funds. In South African law, certain family relationships, such as parent and child and husband and wife, generate a duty of support.
The common law has been stretched in line with the Constitution to protect contractual rights of support in the same way as the common law duty of support.
In Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening),1998 (4) SA 753; 1998 (10) BCLR 1207 the court recognised a contractual right to support stemming from a marriage in terms of Islamic law for purposes of a dependant’s action.
In Du Plessis v Road Accident Fund, [2003] ZASCA 86 the common law action by a spouse, for loss of support against the wrongdoer who unlawfully kills the other spouse, was widened to partners in a same-sex permanent life relationship similar in other respects to marriage, who had tacitly undertaken reciprocal duties of support.
The Constitutional Court in Satchwell v President of the Republic of South Africa & another, 2003 (4) SA 266 (CC); 2004 (1) BCLR 1 (CC) found that the common law duty of support, might, in certain circumstances, be expanded to persons in a same-sex relationship. Madala J, writing for the court, said as follows:
‘The law attaches a duty of support to various family relationships, for example, husband and wife, and parent and child. In a society where the range of family formations has widened, such a duty of support may be inferred as a matter of fact in certain cases of persons involved in permanent, same-sex life partnerships. Whether such a duty of support exists or not will depend on the circumstances of each case.’
In Khan v Kahn 2005 (2) SA 272 (T) it was found that there was a responsibility on a husband to maintain his ex-wife to whom he was married in accordance to Muslim rites in circumstances where marriage is in fact polygamous.The questions for consideration by the Court concerned whether there was a legal duty on the appellant, by virtue of the provisions of s 2(1) of the Maintenance Act 99 of 1998, to maintain the respondent, to whom he had been married by Muslim rites, accepting that the marriage was in fact a polygamous one.
The court was of the view, that the preamble to the Maintenance Act emphasised the establishment of a fair and equitable maintenance system premised on the fundamental rights provided in the Constitution of the Republic of South Africa Act 108 of 1996. It held, further, that the common-law duty of support was a flexible concept developed and expanded over time by the Courts to cover a wider range of relationships. The considerations which Courts have considered in determining whether a specific relationship gave rise to a duty of support included whether the complainant required financial aid and whether the relationship between the parties created a duty to maintain. The times and society in which we live also needed to be taken into consideration.
In both Amod and Khan, the parties in respect of whom a duty of support had been alleged had been married to each other in terms of Islamic law. The ratio of the court, in both cases, was that the marriage between the parties had given rise to reciprocal contractual duties of support on the part of the parties to that marriage.
In Du Plessis, Cloete JA, having had regard to the facts of that matter, determined that the plaintiff had proved that the deceased had undertaken to support him and that the deceased had owed the plaintiff a contractual duty of support. The learned judge of appeal said:
‘In the present case the case for drawing an inference that the plaintiff and the deceased undertook reciprocal duties of support is even stronger. The plaintiff and the deceased would have married one another if they could have done so. As this course was not open to them, they went through a “marriage” ceremony which was as close as possible to a heterosexual marriage ceremony. The fact that the plaintiff and the deceased went through such a “marriage” ceremony and did so before numerous witnesses gives rise to the inference that they intended to do the best they could to publicise to the world that they intended their relationship to be, and to be regarded as, similar in all respects to that of a heterosexual married couple, ie one in which the parties would have a reciprocal duty of support. That having been their intention, it must be accepted as a probability that they tacitly undertook a reciprocal duty of support to one another.
Further support for this finding is the fact that the plaintiff and the deceased thereafter lived together as if they were legally married in a stable and permanent relationship until the deceased was killed some 11 years later; they were accepted by their family and friends as partners in such a relationship; they pooled their income and shared their family responsibilities; each of them made a will in which the other partner was appointed his sole heir; and when the plaintiff was medically boarded, the deceased expressly stated that he would support the plaintiff financially and in fact did so until he died.
Amod, Khan and Du Plessis were determined on the basis of contracts entered into by the respective parties, and are not authority for the assertion that there is a duty of support, by operation of law.
The question whether the relationship between the parties, a heterosexual couple who choose to live together, free from the bonds of matrimony, gives rise to a legal duty of support, can, be addressed with reference to Volks NO v Robinson & others 2005 (5) BCLR 446 (CC).
In that matter the Constitutional Court was concerned with the interpretation and constitutionality of s 2(1), read with s 1, of the Maintenance of Surviving Spouses Act 27 of 1990, which confers on surviving spouses the right to claim maintenance from the estates of their deceased spouses when they are not in a position to support themselves. The court had to decide whether the exclusion of survivors of permanent life partnerships from the protection of the Act established unfair discrimination. Skweyiya J, writing for the majority, referred with approval to the comments made by O’Regan J in Dawood & another v Minister of Home Affairs & others; Shalabi & another v Minister of Home Affairs & others; Thomas & another v Minister of Home Affairs & others that:
‘Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another.
The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function.
The Constitutional Court was of the view that the law may distinguish between married people and unmarried people and may, in appropriate circumstances, accord benefits to married people which it does not accord to unmarried people. The learned justice reasoned as follows in para 55:
‘There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouses’ rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married.’
The court found that whilst there was a mutual duty of support between married persons, ‘no duty of support arises by operation of law in the case of unmarried cohabitants’. This was an unequivocal statement of the law by the Constitutional Court. Skweyiya J went on to state that to the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement and only to the extent of that agreement.
In McDonald v Young (292/10) [2011] ZASCA 31; 2012 (3) SA 1 (SCA) the facts on which an unmarried appellant focused in support of his claim that the respondent had assumed a duty of support towards him were the following:
- He and the respondent had lived together as if they were legally married in a stable and permanent relationship;
- The respondent had supported him during the seven-year period that they had resided together and the appellant had been dependent on such support. She had given him an allowance, provided transport for him and paid for entertainment and overseas holidays;
- The respondent had, in a series of wills, made extensive provision for financial support of the appellant in the event of her death;
- The respondent was a wealthy woman while he had no assets and very limited income;
- He had contributed to the maintenance of and increase in value of the respondent’s estate, often at the expense of his own business interests;
- The appellant was reliant on an income from employment and could not, due to his advanced age, guarantee for how much longer he would be able to earn a living; and
- The respondent had advised the appellant that she had sufficient funds to support both of them.
The appellant in the McDonald case's argument that the parties had entered into a tacit agreement concerning maintenance could not be sustained. The appellant relied on a tacit contract which was inconsistent with his evidence. The appellant believed and gave evidence to the effect that he and the respondent had concluded an express agreement in respect of the property, the aim of which was to ensure that he was financially independent. Implicit in this was the intention that he would not have to rely on the respondent, or any other person, for financial support. In the circumstances, the appellant could not have formed the intention to contract tacitly with the respondent. Having regard to his evidence that the purpose of the joint venture agreement was to render him financially independent, the appellant could not at the same time have contemplated, that the respondent would continue to support him for the rest of his life. A tacit contract must not extend to more than the parties contemplated.
In Rand Trading Co Ltd v Lewkewitsch the parties had erroneously assumed that there was a contract in existence between them. The court did not accept the argument that the company’s conduct in recognising the existence of the lease, paying the rent and otherwise performing in terms of the contract had created a binding contract. Solomon J said:
‘But I think the answer to that argument is a very clear one, and it is this ─ that all these facts are explained on the simple ground that both parties erroneously assumed that there was a contract in existence between them . . . And the mere fact . . . that both parties erroneously assumed that there was a contract in existence at that date altogether precludes us from now inferring a new contract.’
The appellant’s stated belief, that there was a specific contract between him and the respondent in respect of the property, precluded the court from drawing an inference to the effect that the parties had entered into a tacit agreement the terms of which had been inconsistent with the express agreement to which he testified. Secondly, the appellant’s evidence was that the respondent’s attitude had always been that in the event that their relationship ended, he would receive no financial benefit from her. This conduct, on the part of the respondent, was inconsistent with a tacit agreement to support the appellant.
The appellant’s explanation for drafting the various proposals regarding the financial relationship between him and the respondent was as follows:
‘Well, the motivation behind it at that particular time, we were going through quite a patchy period; we were arguing and not agreeing on a lot of things. And it appeared to me that all of a sudden my situation could alter and I’d be left standing high and dry. And I discussed it with Lesley [the respondent] and I felt that if we had something in writing, and if that did occur at least I had something to fall back on . . . ’. (Emphasis added.)
A tacit contract is established by conduct. In order to establish a tacit contract, the conduct of the parties must be such that it justifies an inference that there was consensus between them. Generally there must be evidence of conduct which warrants an inference that the parties meant to, and did, contract on the terms alleged. It was clear from the appellant’s evidence that there was no consensus between the parties.
In the unreported matter of Brenda Jacobs v RF Case number 21427/2017, Judge Colleen Collis ruled that the courts basically had to keep up with the times, particularly if regard is given to the fact that relationships and marriages have developed. She granted an order in favour of a woman whose partner passed away in a car crash. The two had were living together, even though he was still married to his estranged wife at the time of the accident. The woman claimed maintenance and support from the Road Accident Fund as he had supported her financially. But the RAF declined to pay up, as the couple were not legitimately married. In granting the order, Judge Collis remarked: “Cohabitation outside a formal marriage and, dare I say, even where one of the parties is still married, is now widely practised and accepted by many communities.”
