Picture this scenario: You’ve been living with your partner for years, but haven’t married legally married. You might share household running costs, but it’s likely that one partner is covering a higher proportion of the household bills, or perhaps you could have a partner who has been exposed to a certain lifestyle.
Previously, if no cohabitation agreement existed between the two parties and one of them died, the surviving partner would have no legal rights or duties to their partner’s assets or any kind of maintenance obligation.
Now, a recent ruling by Gauteng Judge Colleen Collis has turned common law on its head.
Collis ruled that unmarried couples can also lodge claims for loss of support and maintenance in the event of death.
The ruling comes after Brenda Jacobs approached the court to seek an order compelling the Road Accident Fund (RAF) to accept a claim for maintenance and support after losing her partner, Wesley Stevens – who financially supported her – in a car accident in 2015.
The RAF had previously denied the claim, citing the fact that the couple had not been married.
Judge Collis issued the order despite the fact that at the time of his death, Stevens, had still been legally married to someone else, although the spouses had been estranged for years.
Stevens had subsequently moved on and started a relationship with Jacobs, eventually moving into the home she shared with her two children. As the main breadwinner, Stevens maintained Jacobs and her children and they had plans to marry once his divorce was finalised.
It was on these grounds that Jacobs mounted her case.
“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,” Collis was quoted saying in an IOL report.
She accepted that the couple had been in a committed relationship and that Stevens’ intentions had been to marry Jacobs as soon as the divorce proceedings were finalised.
Collis also accepted that a large section of the population find themselves in similar positions – where they live together for years with the intention to get married, but are unable to do so for some or other legal obstacle. In this light, she said it was imperative that outdated rules around common law ought to be relooked.
“There can be no doubt that our courts also have the duty to develop the common law,” Collis said while handing down the judgement.