By Elmien Pols, Private Client Trust

In these interesting times in which we find ourselves, it is not unusual for people to live together, have children, buy properties and run a business together without formalising their relationship, either through marriage or a civil partnership.

Many people incorrectly believe that such relationships automatically lead to the formation of common-law spouses after some time, but the reality is that this concept is not yet recognised in South African law.

The financial security and protection offered by marriage or civil partnerships does not apply to unformalised life partnerships. The mutual duty of support and division of assets as applied by marriage do not exist, in South Africa, unless formally contracted in some shape or form.

Even though some protection is offered to domestic partnerships, for instance in the case of the Pension Funds Act which includes into the definition of spouse, “a person who is the permanent life partner”, when it comes to the duty of maintenance or when a partner in such a relationship dies without a valid Will, the consequences may be devastating.

When a person dies without a valid Will, the Law of Intestate Succession will prescribe how the person’s assets will be left to their next-of-kin. In the normal scheme of things, a spouse and children will inherit. However, in terms of domestic partnerships, children will stand to inherit should a parent die without a valid Will, but the surviving partner will not qualify to inherit at all.

I was approached a number of years ago by the family of a man who was left destitute as a result of his life partner not having a valid Will.

This gentleman had lived together with his life partner for many years and for reasons unknown, all assets, including their home, were in his partner’s name. On her passing, it was discovered that she had no Will and in terms of intestate succession, her closest relatives were her elderly sisters who inherited everything from her and left her partner in dire straits.

It is very clear that this was not her intention and the outcome would have been entirely different had she nominated him as her sole beneficiary in terms of a valid Will.

However, it seems that the laws have not been quite equal to all.

In the case of same-sex life partners, the Courts have found that they will inherit from each other, should one of them pass away without a valid Will. The reason for this is that in bygone years, same-sex marriages were not allowed, so it would have been impossible for homosexual couples to get married and inherit in terms of Intestate Succession.

This principle was not extended to heterosexual couples as they have always had the option of getting married. By choosing not to marry, they chose not to have the security which comes with marriage.

It has been widely discussed and recognised that there is a need for a remedy to assist the partners in a common-law relationship. For this purpose, the draft Domestic Partnership Bill was published in 2008.

If written into Law, the Bill will do much to bring equality and dignity to often economically vulnerable persons. Until such time however, it is critically important for life partners to know their rights and ensure that they have an up-to-date, valid Will in place.

This article was based on a press release issued on behalf of Private Client Trust, the fiduciary division of Private Client Holdings.