SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
erty regime of the parties. The courts will enforce the terms of prenuptial or postnuptial agree - ments (unless agreed to otherwise between the parties). In certain instances, parties may have claims that result in a distribution not in line with their prenuptial or postnuptial agreements, such as claims for the forfeiture of benefits or a redistri - bution of the assets in terms of Section 7(3) of the Divorce Act. 2.6 Cohabitation Unmarried Couples and the Division of Assets There is currently no legal duty of support for unmarried cohabitants in South Africa, either during the cohabitation or after the cohabitation ends. Accordingly, a cohabitant partner does not have a right to claim maintenance upon the termination of the relationship. Similarly, cohab - itantsdo not have an automatic claim to the assets of their partner at the end of the relation - ship. Cohabiting parties will retain all assets in their respective names at the termination of the relationship, and there is no “asset sharing”. In certain circumstances, however, the common law rules governing universal partnerships may assist cohabitant partners by providing them with a legal claim. A universal partnership is a contract (which may be express or tacit, verbal or written) in which the cohabitants agree that their property will be shared between them. It is a difficult claim to prove, but South African law has developed to extend the remedy even to partners who may only have made a contribution to the partnership in the domestic sphere. Rights of Cohabitants Cohabiting partners do not acquire any rights or financial claims against their partner’s assets
by virtue of a cohabitation relationship. There is no provision for a claim for maintenance or a sharing of assets (“a financial claim”). This is the position regardless of the length of the cohabita - tion or whether the parties have children. There is no principle of a “common law marriage” in South Africa, and the duration of cohabitation does not influence a party’s position for a finan - cial claim. Pursuant to a case in which the right to mainte - nance was awarded to a cohabitant whose part - ner had died, it is likely that the law will be varied in due course in relation to cohabitation, so that maintenance rights will be extended to cohabit - ing partners in certain circumstances. If partners in a cohabitation relationship have children, this similarly does not impact their rights or legal claims as a partner. The only claims that would arise on the termination of such a relationship would be claims relating to the children, such as: • care of children; • contact with children; • guardianship of children; and • maintenance for children. When entering into – or during – a cohabitation relationship, parties may elect to enter into a cohabitation agreement to regulate rights and claims in terms of the laws of contract. 2.7 Enforcement Failure to Comply With a Financial Order There are two types of financial orders that form part of divorce orders in South Africa. One is for maintenance in respect of a spouse and/ or child and the other is in respect of the pro - prietary consequences of the marriage, which will depend on the parties’ matrimonial property
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