Times are changing, and more and more people opt for less traditional forms of relationships. Many South Africans choose to walk down the aisle and get married, but others prefer to live together as “life partners” instead. While shacking up together has become more socially acceptable, it’s important to understand the legal implications of choosing to cohabitate, especially if where couple co-own property, share debts and other financial obligations or have kids together.
What is cohabitation?
Cohabitation generally refers to when a couple, regardless of gender, live together without being legally married to each other. The couple chooses not to get married, but live together as spouses.
In South Africa, there is no law of cohabitation, which means that cohabitation is technically not a legally recognised relationship, unlike marriage which is regulated by specific laws that protect the individuals in the relationship,
There is also a common misconception that unmarried couples who are in a relationship for an extended period are in a “common-law marriage”, which suggests that parties enjoy the same rights as those who have been legally married. It is simply incorrect.
Legal protection for cohabiting couples.
Although cohabitants don’t have the same rights as partners in a marriage or civil union, South African courts have, on occasion, come to their assistance of couples by deciding that an express or implied universal partnership exists between them.
But, proving a universal partnership 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 both partners.
In a universal partnership, the couple agrees to share the property obtained before and during their relationship, which is similar to a marriage in community of property. However, if a universal partnership cannot be proven, the property belongs to the partners separately, and there is no community of property.
The Cohabitation Agreement.
The best way to protect both partners’ legal rights is by drawing up and signing a cohabitation agreement, which is legally binding and recognised in the courts. It comes in handy should the couple decide to end the relationship.
Essentially, it is a written agreement used by an unmarried couple who are in a loving, long-term relationship. This agreement protects their rights and sets out their obligations; it also regulates their living arrangements and various aspects such as their living expenses, property, maintenance etc.
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 should one partner die, it’s vital to protect each other by drawing up a valid Will.
Legal tip: this is also helpful for those in polyamorous relationships.
If you are in a cohabiting relationship and need expert legal advice, feel free to get in touch with us for more information. You can also download our FREE Co-Habitation Agreement.