Often, clients enquire as to how long a couple must live together, before they are regarded as being in a common-law marriage. In South African law, there is no such thing as a common-law marriage, no matter how long a couple may live together. The truth is: cohabitation or living together is not recognised as a de facto marital relationship, of any kind, in terms of South African law and it creates no automatic legal rights and duties between the parties. This is a common misunderstanding or myth.

Cohabitation is on the rise and many couples opt to live together in a permanent life partnership over entering into a formal marriage. The number of cohabitants increases by almost 100 per cent each year. This presents a problem because people often believe that they are afforded certain legal rights simply because of their living arrangements. Even though the relationship may often look the same as a marriage, South African law does not afford it the same legal recognition.

For this reason, couples need to know their rights and how to protect it.

What does the Law say?
The Law as it stands is unsatisfactory, simply because it does not place cohabitants on the same footing as partners in a marriage or civil union. In terms of South African Law, it is possible to enter into a marriage in terms of the Marriage Act 25 of 1961 or a civil partnership in terms of the Civil Union Act 17 of 2006. The legal consequences of a civil partnership are identical to that of a marriage and any reference to marriage in any other law includes that of a civil partnership.

However, cohabitation offers no such comfort. For example, a cohabitant cannot rely on the provisions of the Maintenance of Surviving Spouses Act 27 of 1990 to secure maintenance on the death of a partner and further, when a cohabitant dies without a valid Will, his or her partner has no right to inherit under the Intestate Succession Act 81 of 1987. There is also no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance.

Some legislation does however provide some degree of protection to partners, but these are exceptions to the rule. For example, under the South African Compensation for Occupational Injuries and Diseases Act 130 of 1993, as amended in 1997, a surviving domestic partner may claim for compensation if their partner died as a result of injuries received during the course of work, if, at the time of the employee’s death, the parties were living together as ‘husband and wife’. Moreover, cohabitants can include each other in their medical aids provided that the rules of the medical aid allow this and as beneficiaries under insurance policies or as dependents under pension funds.

Problematic implications – termination of a cohabitation relationship
As already mentioned, there is no duty to maintain one another, thus at the termination of the relationship, neither party will be entitled to maintenance from the other. Whatever you purchase remains your own and this can be problematic if you have purchased furniture and household items together. It can end up in a fight to determine who owns what and you would be required to prove your ownership if you claim an item is yours.

Something most people do not consider, is when one partner is a homeowner and the other moves in with them, the homeowner will be entitled to evict the other partner at the termination of the relationship and will also be entitled to sell the property without notifying the other partner.

Cohabitation Agreement
Partners who choose not to get married should sign a cohabitation agreement to protect them should their relationship end. It is certainly cheaper than ending up in court!

If parties cohabitate but don’t conclude any form of agreement regulating their respective legal rights and obligations, on dissolution of the cohabitation, a party that feels he or she is entitled to something from the other party, must go to court to prove that entitlement by proving that they were in a ‘Universal Partnership’. It is extremely difficult to prove the existence of a universal partnership and therefore, it makes sense to conclude a cohabitation agreement.

As we see above, cohabiting couples do not have the same rights as married couples under the law, and it makes sense to set out at the outset of the relationship what the division would be if the cohabitation breaks down and further, determine how to regulate various aspects of your relationship by setting out the rights and obligations of each party.

This is, in many ways, similar to an ante-nuptial contract. In addition, it deals with other arrangements the parties may wish to include, provided its inclusion is not against public morals and good faith. Parties may even include a provision for the payment of maintenance. This agreement will shed light on the expectations that each partner may have with regard to his/her financial contribution to their joint household and assets (acquired individually or jointly) and provides an opportunity to iron out issues that may otherwise arise in future.

A cohabitation agreement is binding between the two parties but not binding on third parties.

Entering into a cohabitation agreement can provide certainty and legal security, because if one partner defaults on the terms of the agreement, the other partner can approach a court for assistance and an appropriate order in terms of the agreement.

Speak to an attorney at SchoemanLaw today for sound advice or to assist you in setting up the most suitable cohabitation agreement for you and your partner.

© Arinda Truter – Schoemanlaw Inc. – 2018