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No 'Common-Law' Law:

Hill says that while SARS and pensions funds do recognise common-law relationships - although the onus is on the couple to prove certain details of the relationship - the Domestic Partnerships Bill which sought to provide wider and common protection to a broad group of people in domestic relationships, has not been passed as an act yet.

He says in terms of succession planning, if someone is in a long term relationship and one partner passes away without a will, their children would have a claim for maintenance against the estate (in accordance with the Children's Act) but the surviving partner is not recognised when the estate is divided according to current intestate succession regulations (the Intestate Succession Act).

How To Protect Yourself:

Bulelani has been with her partner Tshepo for eight years and they share a six-year-old daughter. They've a joint bank account and share a bond and car. If Tshepo dies, Bulelani believes she'll inherit the entire estate. After all, they're a family right? Well not really. In terms of the law his side of the family has every right to lay a claim to his estate as he died an unmarried man. But there are steps she can take while he is alive to ensure she and her daughter are protected:

  • “Getting organised upfront is always the preferred route to go. So instead of proving your partnership retrospectively, why not draw up a basic - but legally binding - contract that defines the parameters of your shared 'assets'. This can prevent a range of issues later, for instance, if you break-up and your partner lays claim to a property which is in his name but which you have made financial contributions towards. In addition, he suggests that both partners make it their business to keep a 'paper trail' of the partnership to make any future legal proceedings as easy to navigate as possible.”
  • Hill says there are myriad examples of situations where partners and family have come to blows over who is entitled to a deceased person's estate. “Here of course having a will is essential and you should work with a financial planner or estate planner to ensure that the will works in favour of your offspring, partner or family. This is particularly relevant for couples with children as it outlines who will take care of the children upon the death of both partners, how much should be paid in maintenance and who inherits the estate. At a time of grief and heartache, you want to spare your loved ones the agony of legal uncertainty and conflict over inheritance.”
  • He says that if a relationship ends and there is an element of joint commercial gain, for instance, through business activities or property acquisition, partners can use the “Universal Partnership” concept as their recourse. However this is often a tedious process and requires individuals to produce a range of documentation and other evidence to prove the commercial aspect of the relationship retrospectively. For most couples this will not be a viable route to take.”

Hill concludes that working with a financial planner to ensure that partners and children are protected financially, for example through life insurance, which provides immediate cash, is also highly recommended.

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