The Legal Awakening of Co-Habitating


For the first time in years, a friend of mine, *Clarissa and her family spent Christmas together but this was not to be like any other Christmas, as she had big news to share. Clarissa had recently finished university and decided that it was the right time to tell her family about her plan to move in with her boyfriend.

Clarissa’s elder brother was supportive but all hell broke loose when she told her parents, as it wasn’t part of their culture they said strongly. ‘You’re not even married to the guy, let alone met the guy’s family’, they continued to reason while trying to negotiate with her to get their relatives involved so that they could meet his relatives and immediate family.

This is the reaction that many African youth in their 20s who are starting out their lives, independent from their parents receive when they decide to move in with their partner.

Illustration: Nicholle Kobi

Domestic partnerships or cohabitation with your partner before marriage is a new school thing, predominantly in the community of people of colour. In the baby boomer era, the only acceptable way to move in with your partner, was to get married. Marriage ascertained protection of each partner and with marriage, the new relationship wouldn’t only be between the two people but also between the two families. It meant two families merging into one. It still means that for parents of most millennials, which is why cohabitation just does not cut it for them. The colloquial term for it in South Africa is “vat en sit”, meaning the “lazy” way of going about things. It’s regarded as the less serious way of concluding a relationship. So, it brings to question, how well do know about the legal benefits and/or the disadvantages of domestic partnerships?

Illustration: Nicholle Kobi

In South Africa, the Domestic Partnership Bill was drawn to address the concerns that come with domestic partnerships such as recognition and protection. Although the bill was published in 2008, it has still not been enacted into law. Many domestic partners believe that if they cohabit together for a prescribed time their partnership will be protected by the law but unfortunately, this is not true. This perhaps could be one of the biggest reasons why my friend’s parents and many other loved ones of people who enter a domestic partnership, advise against it and refuse to give their “blessing”.

Illustration: Nicholle Kobi

The Volks v Robinson case is one of the cases that highlights where the law stands in terms of protection under a domestic partnership. In this case, the respondent was a lady who wanted to make a maintenance claim against her deceased life partner’s estate. The appellant, who was the executor of the deceased, refused to allow her to make the claim because the two were not married and so she was not entitled to a right to maintenance. The court agreed with the appellant’s reasoning. According to the court, maintenance is a compulsory obligation within marriage and can, therefore, be extended even in death. The court also said duty does not befall unmarried partners as they would not have signed up for it under the law when they are alive and so it, therefore, cannot be extended to them upon their death. The conclusion, in this case, was that maintenance would not be awarded to the respondent even though she had been in a domestic partnership with the deceased for 16 years.

Illustration: Nicholle Kobi

As it stands, entering a domestic partnership might not be a great idea if you want protection within your partnership or legal recognition.

However, the flipside of the coin is that there are many factors one may consider before marrying someone. Some people simply cannot afford marriage, especially with certain cultural monetary obligations, such as ilobolo.

In courts today,  there is a test that has been formed to protect domestic partners and their assets. The test looks at whether it can be deduced by the court that an implicit agreement has been concluded between the two partners in terms of their partnership and assets. Although it seems simple and straightforward in theory, proving this in practice is not an easy task. Therefore, to simplify matters, it is advised that the partners enter into a contractual agreement that formalizes the partnership, the rights and obligations that comes with it. Also do your homework before entering a domestic relationship, as you don’t want to have to find yourself in a sticky situation at a later stage.

Illustration: Nicholle Kobi

Domestic partnerships are not easy but they are possible. It’s a personal question on what’s right for you and your relationship. However, do not go into it blindly in love. Empower and arm yourself legally too.