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“COMMON LAW” is a term widely used in our society. However, what does it mean and what are your rights in these relationships?
A cohabitational relationship, often referred to as a common-law relationship, is a relationship between a man and woman who are living or have lived together as a husband and wife would. Such people are legally referred to as “cohabitants”. The Cohabitational Relationships Act, Chap 45:55 defines a cohabitational relationship as “the relationship between cohabitants, who not being married to each other are living or have lived together as husband and wife on a bona fide domestic basis”.
Proving the existence of a bona fide domestic basis/de facto relationship
In the local case of Delzine v Stowe H.C.A. 3007-2001, the court explored what factors may prove a de facto relationship between two people. These factors include:
1. The duration of the relationship (five years or longer);
2. The nature and extent of common residence;
3. Whether a sexual relationship existed;
4. The degree of financial dependence or interdependence, and any arrangements for financial support between the parties;
5. The ownership, use and acquisition of property;
6. The degree of mutual commitment to a shared life;
7. The care and support of children;
8. The performance of household duties;
9. The reputation and public aspects of the relationship.
What are your rights in a cohabitational relationship?
Parties that share a common-law relationship have rights under both the Cohabitational Relationships Act and the Distribution of Estates Act No 28 of 2000.
The Cohabitational Relationships Act
Under the Cohabitational Relationship Act, cohabitants are entitled to make applications either via the Magistrate’s Court or the High Court.
However, at the Magistrate’s Court, parties are only allowed to apply for maintenance orders. Therefore, they can apply for maintenance of children. It should be noted that cohabitants are not entitled to claim maintenance for themselves as of right but the court may make an order granting maintenance to a cohabitant where the circumstances of the case justify the making of such order.
At the High Court, parties can apply for property orders declaring rights, title or adjusting interests in same; orders that a lump-sum payment be made to a cohabitant; or orders for periodical payments to a cohabitant; and maintenance for children.
Requirements to apply
Under Section 7 of the Act, parties must satisfy the court of at least one of the following:
1. The common-law relationship existed for a period of at least five years;
2. There is a child or children arising out of the common law relationship; or
3. The applicant has made substantial contributions to the common-law relationship of the kind referred to under Section 10 of the Act, namely:
a. Financial contributions made directly or indirectly by or on behalf of the cohabitants to the acquisition or improvement of property and the financial resources of the parties;
b. Any other contributions made to the relationship inclusive of contributions made in the capacity of homemaker or parent to the welfare of the family during the course of the relationship, or
c. The right, title, interest or claim of a legal spouse in the property.
Where cohabitants have ceased to live together as husband and wife on a bona fide domestic basis, any applications to be made under the act must be done within two years from the date of separation. Where the time has elapsed, the court will only allow the application where it can be shown that denying the application would cause undue hardship to the cohabitant or a child of the cohabitational relationship.
The Distribution of Estates Act No 28 of 2000
The Distribution of Estates Act provides that, after the death of a cohabitant (common-law spouse) who has died intestate, that is, without a will, the surviving cohabitant is entitled to benefit from the estate of the deceased once it is established that the parties lived together on a bona fide domestic basis for at least five years immediately before the death of the deceased.
Once an entitlement has been established, the estate may be distributed as follows:
1. Where the deceased has no children and no surviving legal spouse, the surviving cohabitant is entitled to the whole estate;
2. Where the deceased had a child or children but no legally married spouse, the surviving cohabitant is entitled to half of the estate, or;
3. Where the deceased has a legal spouse, the surviving cohabitant is only entitled to that part of the deceased’s estate which was acquired during the course of the common-law relationship, subject to the rights of the surviving spouse and any child of the deceased.
Requirements to apply
Upon the death of a cohabitant, the surviving cohabitant must file with the registrar of the Supreme Court a Notification of Interest as the surviving cohabitant within 28 days of the death. The surviving cohabitant, within three months thereafter or such other time as the court considers appropriate, is also required to obtain an order from the court affirming the cohabitational relationship with the intestate and stating the quantum of the share of the estate to which the said surviving cohabitant is entitled.
Conclusion
Common-law relationships are a recognised form of relationships. The Cohabitational Relationships Act and the Distribution of Estates Act ensure that people living in these relationships have their rights recognised and protected.
Submitted by: The Civil Legal Department Legal Aid and Advisory Authority
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