Family Law

THE COMMON LAW SPOUSE – FACT OR FICTION?

By 24/01/2011 June 9th, 2021 No Comments

During our seminars on marital property systems we invariably have a question about the “common law wife” and the rights and obligations of these so-called “common law spouses”.

In South African law you are either married, with one of the three marital property systems governing your estate(s), or you are not married. You cannot become married by naturalization, as one can become a citizen of a foreign country if you had stayed there for a number of continuous years. 

As such, no rights and / or obligations are conveyed onto the common law couple in terms of their relationship and cohabitation. The perception that “what is mine becomes yours, and what is yours becomes mine” is untrue, and you cannot lay claim to the other party’s property once the relationship comes to an end. Creditors can also not collect property from the partner of the debtor in terms of common law.

There are however pitfalls created by legislation and case law, creating the illusion of truth in this myth.In terms of the Insolvency Act 24 of 1936, a solvent spouse’s property may be attached by the Master of the High Court, together with the insolvent spouse’s property.

Section 21(13) defines a spouse not only as a man / woman who is legally married, but also to a parties who are married in terms of any law or custom and also when a man / woman lives with his / her partner AS IF they are spouses, although they are not legally married.

This provides that, even though you are not married and you are not the debtor, your property may be confiscated in order to settle the debts of your partner. This is however the work of legislation, and not common law, and is an exception to the rule that your respective assets and debts remain your own.

A second area of the law which causes confusion is the compensation paid to partners of motor accident victims in terms of the Road Accident Fund Act 56 of 1996.

In terms of case law pertaining to the aforesaid act, partners who co-habitat with the victim may receive compensation in certain instances e.g. where the partner witnessed the accident.

What must be made clear is that the partner receives the compensation as a result of legal precedents and legislation and not because he / she was the victim’s common law spouse.

Even though the common law spouse is a falsity, it is important for cohabitants to ascertain what rights and / or obligations legislation places on them in terms of their relationship, in order to protect their rights and their assets.

Ian Mc Laren

Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens Attorneys September 1986. Right of Appearance High Court, October 1996.ExpertiseLitigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology.Committees/ TrustsLaw Society of South Africa Information Technology Committee. Trustee Verney College Educational TrustOtherTransvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.