Many people who live together, have decided that they do not need to formalise their relationship with marriage.
There, may, however, be troubles ahead and the “I don’t need a piece of paper or a ring” could cost couples dearly in any break-up, or death. It is all down to the erroneous concept of the “common law spouse” – a figment of the imagination, and something that doesn’t exist.
Today, parties are either married, or they are not.
Marriage carries with it many rights (an obligations) but marriage also carries with it certain financial benefits.
Recently, in the Constitutional case of Volks v Robinson, the court held that unmarried couples in a permanent relationship are not entitled to the rights that married couples would have. In the case before the Judges, they had to decide whether unmarried persons who lived together were entitled to the same rights and duties as married people. They held that such heterosexual unions did not have the same rights as married persons and the court held that it was reasonable for legislation to differentiate between married persons and unmarried heterosexual couples for the purposes of conferring benefits that usually arise out of marriage.
Thus, if you are entitled as a married person – to benefits accorded to married people, you may not have the same rights if you are not married.
If you are not married – you cannot claim the rights due to a “married person”.
A “common law” spouse, will not be entitled to many of the rights of a properly married spouse, insofar as rights of inheritance, matrimonial rights and so on. For example, a man who lives with a woman without being married to her, would not receive any benefit from her estate if she were to die intestate. The parties could of course bequeath their respective estates to each other, but this forms the subject of a separate debate.
There is, of course, section 37C of the Pension Funds Act. This is the section which takes care of “dependants” of the deceased member. Where parties live together in a heterosexual relationship, and do not marry each other, the surviving partner would be entitled to claim some benefit of the death benefit. This however is not on the basis of a “common law” marriage, but is based on the survivor being “dependant” on the deceased member.
There are two Adjudicator determinations which offer some guidance to trustees on the rights of “common law” spouses.
The first one is Maritz v Absa Group Pension Fund. In this case, there was a “spouse’s” pension payable on the death of the member. The fund rules excluded the surviving life partner, on the basis that she was not married to the member at the time of his death. The Adjudicator held that she was not entitled to succeed in claiming a spouse’s pension. The Adjudicator followed the decision in Volks v Robinson. If the woman had been married to the deceased she would have been in a position to benefit and she would have been paid a spouse’s pension.
The second determination is Van der Merwe and Another v Central Retirement Fund and Another. In this case, the Adjudicator had to decide whether an unmarried partner could be accommodated under any of the categories of “dependant”. Under the Volks v Robinson ruling he held that the surviving spouse did not qualify as a “spouse” under the definition of dependant, (she was not properly married) and neither did that surviving partner qualify factually as a dependant. She was in fact not dependant on her partner.
It must be borne in mind, that if the surviving partner in the Van der Merwe case, was a women who stayed at home, did not earn any money, and looked after the common home, cared for the deceased member and earned no income – on the death of the member she would most certainly be entitled to receive some benefit because she was factually dependant on the deceased for maintenance and support during his lifetime.
Where Married couples live apart
The situation of married couples who live apart, also raises interesting questions.
Where a spouse is separated from his or her partner but not yet divorced, that partner would have all the rights and duties of a person still married and living together with that partner. If the rules of a fund provided for a spouse’s pension with no qualification, that spouse would obtain the monthly annuity even though he or she did not live with the deceased member.
Divorce finally ends that bond, but until the parties are legally divorced, and the court has granted a final order of divorce, the spouse remains a “spouse” and that person will benefit where the fund has a spouse’s benefit incorporated into the rules.
It is important, therefore, for parties who are married, to update their beneficiary nomination forms and make provision for those partners who they would leave behind. The nominated beneficiary would have slightly stronger rights if there are no other dependants, but where there are other dependants then the nominee’s claim will be considered together with those of the other dependants .
It is important for members to update beneficiary nomination forms to ensure their partners are named as nominees and are guaranteed the right to be considered for a share of the benefits or, are guaranteed the benefit itself if there are no dependants.
Trustees might also have the duty of advising their members of the implications of not nominating their lifelong partners as nominated beneficiaries, and not leaving those partners to await their fate at the hands of the trustees and other dependants.