Co Habitation Agreements

“Times are changing, and more and more people opt for less traditional forms of relationships. While many South Africans choose to walk down the aisle and get married, others prefer to live together. And, while the latter has become more socially acceptable, it’s important to understand the legal implications. For example, there might be a home and associated mortgage or tenancy and decisions to be made about what happens to it, with the accompanying financial consequences. There may be children as a result of the union; there could be shared debts; there may be insurance policies with both partners as beneficiaries; or a shared vehicle.

What is cohabitation?
Cohabitation generally refers to people who, regardless of gender, live together without being legally married to each other.

How is it different from marriage?
Of course, it is important to note that in South Africa there is no law of cohabitation, which means that cohabitation is not a legally recognised union. Marriage is regulated by specific laws that protect the individuals in the relationship, but that is not the case for couples cohabiting.

There is also a common misconception that unmarried couples who are in a relationship for a longer period are in a “common-law marriage”, which suggests that parties are “qualify” for the same rights as those who have been legally married.

Does the law make any provisions for cohabiting couples?
Although cohabitants do not have the same rights as partners in a marriage or civil union, South African courts have, on occasion, come to the assistance of couples by deciding that an express or implied universal partnership exists between them.

A universal partnership exists when parties act like partners in all material respects without explicitly entering into a partnership agreement. In these cases, where the relationship breaks down, the court could award a share of the assets acquired during the relationship to each party.

Proving a universal partnership exists can be tricky, and various requirements must be met. For instance, it must be shown that the point of the partnership was to make a profit, and all parties contributed. Furthermore, the partnership must have benefited all involved.

In a universal partnership, the couple agrees to put their property (both current and future) in common. This resembles a marriage in community of property. This allows both people in a cohabitation relationship to acquire a share in all property acquired during (and before) the commencement of the relationship.

However, if a universal partnership cannot be proven, the private property owned by the cohabitees before cohabitation belongs to the partners separately and there is no community of property.

How can cohabiting couples protect their legal rights?
The best way to protect all parties’ legal rights is by drawing up and signing a cohabitation agreement, which is legally binding and recognised in the courts.

Essentially, it is a written agreement used by an unmarried couple who are in a long-term relationship. This agreement protects their rights and sets out their obligations; it also regulates various aspects such as their living expenses, property, maintenance etc. It comes in handy should the couple decide to end the relationship.

Another important document to consider is a Will. Because cohabiting partners have no automatic legal right to inherit from the other and no right to spousal maintenance on death, for example, it’s vital to protect each other by drawing up a valid Will”