Whilst many young adults prefer the sanctity of exchanging vows and entering into a marriage, more and more couples opt for less traditional forms of commitment and choose simply to live together – or, to cohabit. In this post, we answer the following questions:
Cohabitation is often referred to as a common-law marriage, living together or a domestic partnership. Despite these (often incorrect) definitions assigned to cohabitation over time, it is not recognised as a legal relationship by South African law.
1. What is cohabitation
The term cohabitation refers to a couple living together as spouses, regardless of gender, without entering into a civil marriage – and hence without the application of the familiar patrimonial consequences that follow from a civil marriage.
2. What happens in the event that the relationship dissolves, whether as a result of a break-up or death?
The spouse(s) is now faced with questions regarding ownership of assets acquired jointly, liability for debts, rent, cellphone accounts and a host of other issues. Then only to learn that, contrary to the consequences of a civil marriage that is regulated by specific legislation, there is no “law of cohabitation”. No amount of time spent living together will convert the cohabitation relationship into one where legal rights and duties automatically flow from the relationship.
2. How does one address this?
Couples who cohabit are encouraged to conclude a Cohabitation Agreement or Domestic Partnership Agreement to arrange their rights and obligations towards each other. Such agreement records the parties’ wishes regarding finances, the joint household, and any assets acquired individually or jointly whilst they are in a long-term relationship. Should the relationship dissolve, couples are able to do so with certainty regarding the patrimonial consequences.
Another important document to consider in conjunction with the above agreement is a will. A cohabitation agreement cannot regulate inheritance in the event of death. For example, when a cohabitant dies without a valid will, his or her partner has no right to inherit under the Interstate Succession Act and he or she can also not rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance. To ensure that your assets devolve to the person(s) intended, it is vital for both parties to ensure that they have a valid will in place.
For more information contact STBB.