For cohabiting partners in South Africa, the lack of legal recognition of their union can lead to significant challenges, particularly in emergencies. Questions often arise about whether one partner can make critical medical or financial decisions on behalf of the other. This article explores the legal framework surrounding decision-making rights for cohabiting partners and how these rights can be safeguarded through legal documentation.
The Legal Context: Cohabitation vs. Marriage
South African law does not grant cohabiting partners the same rights as married couples. For married couples, the Marital Property Act and other laws automatically grant a spouse the authority to act in specific financial and medical matters. In contrast, cohabiting partners have no such automatic rights, regardless of the length of the relationship.
Medical Decision-Making Rights
In South Africa, only a legally recognized next of kin—such as a spouse, parent, or child—can make medical decisions if a person is incapacitated. Without this recognition, cohabiting partners cannot legally:
- Consent to Medical Treatment
If one partner becomes unconscious or otherwise unable to make decisions, the healthcare provider may require consent from a family member, not the cohabiting partner. - Access Medical Records
Privacy laws under the Protection of Personal Information Act (POPIA) restrict access to medical records. Cohabiting partners are not automatically entitled to this information. - Make End-of-Life Decisions
Without legal documentation, partners may be excluded from decisions regarding life support or organ donation.
Financial Decision-Making Rights
Similarly, financial institutions require legal authority before allowing one partner to manage the other’s financial matters. This can include:
- Accessing Bank Accounts
Joint accounts are the only exception; otherwise, access requires a power of attorney or legal authorization. - Paying Bills or Loans
Even if a partner contributes to shared financial obligations, they cannot act on behalf of the other without formal documentation. - Managing Investments or Property
Unless both partners are listed as co-owners, the surviving or incapacitated partner cannot make decisions regarding investments or shared property.
How to Safeguard Your Rights as a Cohabiting Partner
- Draft a Power of Attorney
A power of attorney is a legal document granting your partner authority to act on your behalf in financial or medical matters. Note that it becomes void upon the grantor’s death or mental incapacity. - Sign an Advance Health Care Directive
Also known as a living will, this document specifies your medical wishes and can designate your partner as the person authorized to make healthcare decisions. - Consider a Co-Habitation Agreement
While this does not directly address medical or financial decision-making, it provides a legal framework for your relationship and may strengthen your partner’s case in disputes. - Appoint Your Partner as a Beneficiary
Update your insurance policies, pension funds, and investments to include your partner as a nominated beneficiary. - Draft a Will
A will ensures your partner inherits your assets and minimizes the risk of disputes. - Consult an Attorney
Legal advice tailored to your specific situation can help you prepare comprehensive documentation that protects both partners.
Real-Life Case Example
A Cape Town couple had been living together for 12 years when one partner was hospitalized after an accident. Despite their long-term relationship, the surviving partner could not consent to medical treatment or access critical financial accounts because there was no power of attorney or will in place. The matter became further complicated when the incapacitated partner’s estranged family intervened.
This example underscores the importance of legal preparation for cohabiting partners.
How Engelsman Magabane Incorporated Can Help
Engelsman Magabane Incorporated offers comprehensive legal services to ensure your rights as a cohabiting partner are protected. Our team of experienced attorneys can assist with drafting power of attorney documents, living wills, cohabitation agreements, and other legal frameworks to safeguard your relationship.
Don’t leave your future to chance—contact Engelsman Magabane Incorporated today to ensure your legal security.
Conclusion
Cohabiting partners in South Africa face significant legal limitations in medical and financial decision-making. Without the proper legal documents, your partner may be excluded from critical decisions during emergencies. Protect your rights and relationship by consulting with legal professionals and putting the necessary safeguards in place.