The Domestic Partnership Bill of 2008 (the “Bill”), once introduced as an Act, will regulate the legal status of people of the opposite or same sex who are in a domestic partnership, but have not yet “tied the knot”.
1. The effects of unregistered domestic partnerships (general)
1.1 Life as we know it is all about the make-ups and the break-ups of relationships and we have all witnessed (I’m sure) the problems that couples face when their relationship or the domestic partnership (which I will refer to from now onwards) comes to a sudden halt. Literally it spells d.i.s.a.s.t.e.r!
1.2 Time and again people jump right into living together without thinking of the legal consequences thereof, the importance of wills and winding up of deceased estates, or have no legal understanding of the law. Before they realise, homes, motor vehicles, and other luxury items are bought, and verbal agreements are concluded and before the partners realize the situation, one is paying off certain items, other items are only in one of the partners name (bonds etc) and unexpectedly what you thought was true, never-ending love for each other suddenly comes to a complete end due to death, mutual agreement, or your better half (well that’s what you thought at the time) literally packs their bags and heads for the hills!
1.3 Now the looming question, if the property as mentioned above is not in your name, where exactly does it leave you and how will this affect your pocket? Often, couples are so madly in love that they fail to see past the break-ups and what the future may hold. I was always warned and advised that an agreement between two lovers should be agreed to as if they you were getting divorced, or separating at that present moment in time. This would save unnecessary legal fees and of course avoid those dreaded “settlement agreements” that can never be agreed upon.
2. Domestic Partnership Bill, 2008
2.1 According, it brings me great pleasure to advise you that there is light at the end of the big, dark tunnel. The Bill was drafted to afford all partners equality before the law1, the right to equal protection and benefit of the law . Therefore legally recognizing and protecting partners in a domestic partnership, and allowing the partners the opportunity to share in some of the rights and obligations that flow automatically from a marriage. The Bill is aimed at providing partners with certainty and greater understanding of the topic.
2.2 A look into traditions of today:
As we move towards the new and kick out the old, traditions come and go, and society’s beliefs change the word “marriage” for some brings a chill to their spine, and almost sounds somewhat archaic. However as human nature has it, we all still want what rightfully belongs to us (or what belongs to others but which we believe rightfully belongs to us!). At the end of the day we want our possessions protected.
2.3 In my view, the Bill has done just that, it provides rights and obligations to domestic partners who are not concerned with registering any form of partnership. The Bill has identified all the important and relevant aspects pertaining to unregistered domestic partnerships such as such as property division after termination of unregistered domestic partnerships either through death or suspension, maintenance after termination of the unregistered domestic partnership, as well as intestate matters (persons dying without leaving a will)2.
3. DIVISION OF THE PROPERTY
3.1 The Bill provides domestic partners the rights to apply to Court on application to obtain a court order in respect of the above three aspects of unregistered partnerships.
The Court however takes into account certain factors such as the duration and the nature of the relationship, the degree of financial assistance, dependence or interdependence, arrangements regards financial support, performance of household duties, ownership and use of as well as acquisition of the property, the principles of justice, fairness and equality, and the interests of both parties as well as their individual needs depending on the facts of each individual case.
3.2 Additionally the partner applying for the court order may not at the time of the application to Court be a spouse in any civil marriage, or a partner in any civil union or be in a registered domestic partnership with a third party. Further, one of the partners in the domestic partnership is required to be a South African citizen and/or a permanent resident of South Africa. It is important to keep in mind that the application is required to be lodged within 2 (two) years of the separation3.
4. MAINTENANCE
4.1 Unregistered partners do not have the same duty of support as registered partners do, except as for provided in the Bill. The Bill deals specifically with maintenance with regards to when the partners have separated as well as if a death has occurred in the domestic partnership.
4.2 Separations and the effect on maintenance in terms of Section 28 of the Bill
After separation a Court may, upon application make an order which is just and equitable in respect of the payment of maintenance by one unregistered partner to the other for a specified period, taking into account certain necessary and relevant factors such as age of the partners, duration of the relationship, standard of living, respective contributions to the relationship, and respective earning capacities etc.
4.3 Death and the effect on maintenance in terms in terms of Section 29 of the Bill
4.3.1 A surviving unregistered domestic partner may after the death of the other unregistered domestic partner, bring an application to a Court for an order for the provision of his or her reasonable maintenance needs from the estate of the deceased until his or her death, re-marriage or registration of another registered domestic partnership, insofar as he or she is not able to provide therefore from his or her own means and earnings.
4.3.2 The Courts will then make a just and equitable order taking into account all relevant circumstances and necessary factors which are listed in paragraph 4.2. above.
4.4 Intestate Succession and the effect on maintenance in terms of Section 31 of the Bill
4.4.1 If your partner dies intestate (i.e. without a will), the surviving partner has the option of bringing an application to Court for an order to inherit the intestate estate in terms of the Intestate Act 81 of 1987.
• Example: if the deceased is survived by an unregistered domestic partner as well as a child or children, the partner will inherit a child’s share of the intestate estate or R125 000.00, bearing in mind that the application should be made within 2 (two) years after the deceased’s death and further applications would be necessary if the estate had already been wound up.
5. South African legislation compared to countries around the globe (comparative analysis of other jurisdictions)
In other jurisdictions such as Australia, New Zealand, Washington DC, Nevada and California domestic partnerships are regarded as the equivalent to marriages or same sex unions, although the concept is still evolving from place to place. Accordingly if we compare South Africa (a developing third-world country) with other first-world countries, we are keeping up with the international trends, positively accepting change and allowing legislation to influence our community and its needs in every aspect of everyday life.
Please do not hesitate to call us should you have any further queries or should you require any further legal advice regards this topic.
Notes:
1. Section 9(1) of the Constitution of the Republic of South Africa 1996.
2. Chapter 4 of the Bill which deals specifically with section 26 to Section 33.
3. Section 31 of the Bill.
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