The latest Marriages and Divorces Report released by Statistics South Africa, showed a dramatic decrease in marriages. In 2003 there were 178,689 civil marriages and 17,000 customary marriages in South Africa. By 2023 this number had plummeted to just 99,289 and 4,934 respectively. So, despite a rising population marriages have reduced by half! South Africa’s legally married population dropped from 35.6% in 1996 to 23.8% in 2022, while those who never married rose from 52.8% to 61.7%,
There are of course many social consequences of this trend such as for example, an indicator of the many single parent households in South Africa where one parent, usually the mother is left literally ‘holding the baby’ while at the same time needing to work to fund herself and children. Coupled with this is the huge increase in unpaid maintenance from the other parent.
There is, however, another significant area that needs to be considered where couples decide to, live together without a formal marriage contract.
One must remember that, besides the religious and social implications of a formal marriage contract, there are also financial consequences covered by the contract and relevant laws. Choosing to cohabitate instead of marrying may result in partners being in a partnership without any formal agreement.
In usual ‘pub talk’ one hears that couples that live together are involved in a “common law marriage”, unfortunately there is no such contract in South African law. When a relationship like this unravels the best the financially aggrieved impacted partner might hope for is the court will recognize an unwritten 'universal partnership' agreement. However, this can be challenging to prove and legally costly.
Furthermore, many couples decide to live together partly to avoid the emotional stress of a formal contract, which, of necessity, must contemplate what will happen if the ‘match made in heaven’ falls apart.
Couples should consider the financial impact of their relationship. Undocumented partnerships are complicated if there are dependents involved, such as parents or children from earlier relationships, as well as children from the current partnership.
A serious discussion about financial consequences should lead to a written cohabitation agreement outlining payment responsibilities during the partnership. Topics include, who gets the house, children's living arrangements, contributions to household expenses, medical costs, children's education, and maintenance for aged dependents.
Further discussions should include the consequences of the death or disability of a partner which in turn may lead to a revision of the Last Will and Testament of each partner as well as the advisability of co-ownership of significant assets such as the Family home and holiday homes. Finally, agreement s about child custody should be documented and signed by both partners.
In formal marriages, these topics are covered by antenuptial contracts or marriage laws. Departing from tradition requires partners to discuss these matters in detail and it would be important to put them in writing.