We often find that local South Africans and foreign nationals attend our office to sign cohabitation agreements. This agreement is required to meet South African visa requirements. In my own experience, these often do not make specific reference to any legislation and only aim to establish that a relationship exists. This arrangement is commonly known as a universal partnership where the parties are cohabiting. Further in my experience (in the context of visas) is pre-compiled when getting to my office. 

Besides my reservations that these agreements often lack foresight in terms of the consequences of termination and rarely provide for the duty of mutual support during or after the termination, there seems to be a growing tenancy to refer to the Civil Unions Act 17 of 2006 as amended in these pre-populated agreements.

Therefore, couples must understand the context of these agreements and the legislation that governs their relationship.

History

Historically, the Marriage Act 25 of 1961 codified the common law definition of “marriage” as the legally recognised voluntary union of one man and one woman to exclude others while it lasts. 

This legislation was challenged by Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC). Because the common law and section 30(1) of the Marriage Act denied same-sex couples equal protection and benefit of the law in contravention of section 9(1) of the Constitution. Also, these provisions resulted in same-sex couples being subjected to unfair discrimination by the state in conflict with section 9(3) of the Constitution. 

The Constitutional Court acknowledged this and declared the provisions of the Marriages Act invalid. To the extent that it did not permit same-sex couples to enjoy the status, benefits and responsibilities it accords to heterosexual couples. As a result, parliament was afforded 12 months from the date of judgment to correct these defects. The Civil Union Act 17 of 2006 was the result. It provided for the solemnisation of civil unions either in the form of a “marriage” or a “civil partnership”. 

Heterosexual couples can, therefore, choose to marry in terms of the Marriages Act or the Civil Unions Act. Same-sex couples can only marry in terms of the Civil Unions Act. 

A Comparison 

In both pieces of legislation, the criteria and requirements for marriage are similar. The marital regimes remain unchanged, affording parties the same rights and responsibilities. However, the Civil Unions Act differs in that it recognises partnerships that are not solemnised by marriage. This affords couples who choose not to marry the right to enjoy the benefits that marriage brings in sharing in the joint estate. 

As determined by the Matrimonial Property Act 88 of 1984 as amended, couples seeking to “marry” under the Civil Unions Act would need to execute an Antenuptial Contract with or without the application of the accrual system to regulate the proprietary consequences of their marriage. And failing this would be married in community of property. 

It is essential that couples, whether local South Africans or not, entering into these agreements for whatever reason bear in mind that these are agreements with far-reaching consequences. Therefore, it should not be entered into lightly and seek professional advice before signing any such contract. Contact an Attorney at SchoemanLaw Inc today.

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