In South Africa, common law marriage (a term often attributed to cohabitation or life partnerships) refers to a union between two individuals who live together as husband and wife without the formalities of a registered marriage. This type of marriage is also known as "cohabitation" or "life partnership" (referred to as "common law marriage" herein).

The South African legal system does not recognize common law marriage as it does not offer the same legal protection and benefits as registered marriages. For example, during a separation, common law spouses do not have the same rights as registered spouses regarding property division, maintenance, or custody of children. In such cases, the court often determines the consequences. It is, therefore, noteworthy to consider the latest developments in our law concerning common law marriages.

In the case of Bwanya v The Master of the High Court and Others 2022 (3) SA 250 (CC) (the "Bwanya" case), several women noted several challenges faced in common law marriages: the women's lack of bargaining power in the relationship; the dependence of women and children, if there be any, on the financial strength of the men in the relationships; and the mistaken belief by one or both partners in a permanent life partnership that they are in a legally binding "common law" marriage.

Furthermore, in the event of the death of a common law spouse, the surviving partner may not be entitled to inherit the deceased spouse's estate. In such cases, the surviving partner may have to prove the existence of the common law marriage in court to establish a claim to the estate.

However, there have been positive developments also, such as the extension of the Maintenance of Surviving Spouses Act 27 of 1990("the MSSA"), as follows:

In Daniels v Campbell 2004 (5) SA 331 (CC), the Constitutional Court confirmed that the word "spouse" in the MSSA includes widows from monogamous Muslim marriages and that such wives, therefore, had rights to claim maintenance from the estates of their deceased spouses. In the Bwanya case, the Constitutional Court held that the exclusion of life partners from the operation of the MSSA was unconstitutional and invalid and accordingly ordered the definition of "survivor" in section 1 of the MSSA to be read as if it included the following words after the words "dissolved by death" –

"and includes the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner's estate".

The common law reciprocal duty of support between spouses during the subsistence of a marriage does not extend beyond the termination of the marriage by divorce and, to prevent spouses from being left following destitute termination by divorce, entitles spouses to claim future maintenance upon the termination of marriages.

Therefore, on account of the duty of support during the subsistence of the life partnership, life partners should have recourse to claim maintenance from one another following the termination of the said life partnership insofar as they cannot provide therefore from their means and earnings. The lack of recourse is constitutionally unacceptable, as it discriminates based on, among other things, marital status and gender and constitutes unequal protection before the law.

As such, there is much work to be done. In the meantime, couples should contract adequately to ensure that both parties are equally protected. If you are embroiled in a dispute post-termination of your common law marriage, seek professional advice soon. 

Written by Nicolene Schoeman-Louw, Dispute Resolution Specialist and Notary Public, SchoemanLaw