Protecting couples who don’t tie the knot

Many couples are well aware of this lack of protection. “In the event of the death of one of us, you might find that the deceased’s relatives are very selfish,” says Moses Kasale.* “For example, if I die and my relatives are selfish, they can come and take everything in this house and by so doing denying the children I have with her any inheritance. All on the basis of the fact that I had not married her.” 

 

When the Southern African Development Community (SADC) Heads of State met in August 2007, they decided to exclude a relevant article, which would strengthen legal protections for these couples, from the proposed SADC Protocol on Gender and Development. According to the SADC Alliance working to strengthen the draft Protocol before further review in August 2008, such an article is vital to legally recognising individuals rights, regardless of their marital choices.  

 

Cohabitation is a non-marital, co-residential union – that is, a couple who maintains an intimate relationship and lives together in the same dwelling but without being married to each other. Unlike marriages, they are normally not regulated by law, nor is their occurrence officially registered.

 

There are many reasons couples opt to co-habit. Increasing levels of education mean people are pursuing careers. As a result, they postpone marriages and opt for cohabitation. Others may not have the financial capacity to pay lobola or arrange a wedding ceremony, and so may live together with the intention of doing so later.

 

According to the 1991 Botswana census, 12% of all people aged 15 years and above reported themselves as cohabiting. By 2001 census, this figure had increased to approximately 17%. The census results also show that the proportion of cohabiting unions relative to all current unions increased from 31 to 46% between 1991 and 2001.

 

The Mozambican Demographic and Health Survey statistics indicate a slight decline in cohabitation from 53.8 to 50.3% in 1997 and 2003 respectively, even though their levels are extremely higher than SADC countries with available data. The Zimbabwe Demographic and Health Survey (ZDHS) shows the level of cohabiting couples fell from 3.7% in 1999 to 1.8% in 2005.  

                                       

However, statistics in many of these countries likely do not give the full picture. Many couples who are co-habiting simple consider themselves married, and many countries do not collect such data.

 

Cohabiters may face issues of vulnerability and hardships, which laws need to address  Women in such unions are particularly vulnerable to abuse, and may find authorities less willing to take their reports seriously.

 

The biggest challenge comes of course when the couple’s union dissolves, through either a parting of ways, or the death of one the partners. In Zimbabwe for instance, the law does not recognise cohabiters in inheritance laws. A partner who is not economically contributing in the home, in most cases the woman, fails to benefit from the inheritance. This happens even in cases where the woman may have maintained the home and children, by mutual agreement between the partners, for a number of years. Children are the most vulnerable. 

 

In South Africa, the landmark case Bhe v Magistrate, Khayelitsha & Others changed the interpretation of inheritance laws. This case concerned two minor girls – aged nine and two – from Khayelitsha who challenged the rule that in the absence of a will stipulating that they inherit their deceased father’s estate, they could not inherit the property on the grounds that they are female. The estate in question was the girls’ home in Khayelitsha where the girls had been living with their parents until their father died in 2002.

 

Since their parents were never married, even though they had been cohabiting for

twelve years, the mother had no legal claims to the house. Under African customary law the house was therefore deemed to be the property of the eldest male relative of the father’s children.

 

Bhe successfully argued to the court that the customary law rule of male primogeniture, as well as provisions of the Black Administration Act and the Intestate Succession Act, unfairly discriminated against her two minor daughters because they prevented the children from inheriting the estate of their late father. In this case, the children received protection, but in reality, the mother was not.

 

There have been many other arguments regarding the benefits of co-habiting. Some argue that women are more autonomous in these unions, and thus can negotiate safer sex. Others mention that in a changing world, the temporary nature of cohabitation means that a partner may more easily leave, for example, a woman who is in an abusive relationship.

 

It is evident that there may be benefits and disadvantages for cohabiting couples. Regardless, the practice is likely to continue, and as such, there is a need for laws to recognise individual rights, regardless of marital choices.  The inclusion, and subsequent adoption, of such an article in the SADC Gender Protocol would go a long way to guaranteeing these rights.