Death and Not Legally Married

My life partner passed away and we weren’t legally married, now what?

There are various ways to get married in South Africa. There are also various reasons that a couple would be life partners, but not get legally married. These reasons are often personal in nature and one can only speculate as to what they are. What we can know for certain, however, is the consequences of one member of the life partnership passing away and the possible difficulties for the remaining member.

(Not) Legally married

With all the different customs and cultures in South Africa, there are different ways in which people want to get married and different things that people think are important for a marriage. As far as the law is concerned, though, two people can get married in terms of a civil marriage, customary marriage, civil union, and a religious marriage. Note that a religious marriage is not recognised as a legal marriage under South African law, but in certain instances, the spouses are protected by the law.

A civil marriage can only be entered into by a man and a woman. Unless an antenuptial contract is signed stating otherwise, it is automatically a marriage in community of property.

A civil union can be entered into by two people and by persons of the same sex. As with the civil marriage, it is automatically in community of property unless your antenuptial contract is different.

A customary marriage is celebrated and concluded as per the indigenous African customary law. It is recognised as a legal marriage according to the Customary Marriages Act. The exact traditions that need to be followed may differ from community to community, but generally, lobola must be paid after which the necessary rituals and celebrations must take place. A customary marriage also allows for polygamy, though the groom must apply for permission to the High Court and the customary marriage must be registered at the Department of Home Affairs within three months.

A religious marriage is entered into in terms of a religion like the Islamic faith. Although it is not legally recognised, spouses are protected against domestic violence and when a spouse dies, the surviving spouse may

  • Approach the Magistrate’s Court to request maintenance against the deceased estate
  • Inherit in terms of the Intestate Succession Act if no will was left behind  

If your partnership does not fit into any of the categories above, you are not married in the eyes of the law.

No such thing as a common-law marriage

Many South African live together with the understanding that their years of partnership and cohabitation constitutes a common-law marriage with all the legality that is involved in a marriage. This is false and they are just cohabiting a space with no legal commitment in terms of marriage. A cohabitation agreement can be entered into that can regulate financial and property matters, like who pays the mortgage and who pays for living expenses. It provides financial stability, but they are still not legally married.

So, what if my partner passes away?

It is clear that if you and your partner were not married in any of the manners as set out above and you had no type of contractual agreement, the surviving spouse is left with no legal recourse to make any claims against the deceased estate.

A partner is only entitled to inherit from the deceased estate if they were legally married, and a cohabitation agreement does not give you the same right.

The only way to ensure your life partner inherits from your deceased estate and is legally protected after your death is to draw up a will and include him/her in it.

At AED Attorneys, we understand that every relationship is unique. We also understand that the law will place you into certain legal boxes. Having an airtight will is one of the best ways to protect your loved ones, married or not, after your passing and that is where we can help.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

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