Law on Cohabitation

In South Africa, Cohabitation has become more common over the past years. Cohabitation also referred to as a common law marriage, living together or a domestic partnership is not recognized as a legal relationship by South African law. Cohabitation refers to people, regardless of gender, who live together without being legally married to each other. Because their relationship is not recognized by law as a marriage, the rights and duties that a marriage subsist of do not apply. Contrary to societal beliefs, that if you stay with your partner for a certain amount of time, a common law marriage comes into existence whereby you will obtain certain benefits, is incorrect.

Unlike marriage, which is regulated by the Matrimonial Property Act 88 of 1984, and protects the individuals in the relationship, cohabitation does not provide such comfort. For instance, when a cohabitant dies without a valid will, their partner has no right to inherit under the Intestate Succession Act 81 of 1987. Individuals in a cohabitation agreement can also not rely on the provisions of the Maintenance of Surviving Spouses Act 27 of 1979, to secure maintenance on the death of a partner. Furthermore, there is no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance.

Fortunately for South Africans, the law on cohabitation may soon be rectified by the draft Domestic Partnership Bill published in January 2008. Until the Bill is adopted into legislation, the alternative relief for cohabitants would be to prove that an express or implied universal partnership exists. In cases where the relationship breaks down, the court awards a share of the assets acquired during the relationship to each party. It is exceedingly difficult to prove a universal relationship as certain requirements must be met. The requirements are as follows:

  • that the aim of the partnership must be to make a profit;
  • both parties must have contributed to a specific joint venture through their labour, capital or skill; and
  • the contributions must be conducted for the benefit of both parties.

Cohabitants may enter into a contract similar to an antenuptial contract which regulates their specific obligations during the substance of the relationship and sets out the consequences should the cohabitation agreement be terminated. It would be wise to appoint an attorney to draw up an agreement that clearly sets out the regulations regarding finances during the existence of the relationship as well the division of property, goods and assets upon termination of the cohabitation agreement. Cohabitants who fail to draw up a cohabitation agreement will have no legal protection unless they can prove the existence of a universal partnership, which is very difficult to prove.

For your peace of mind and legal protection, please do not hesitate to CONTACT US should you require legal assistance with regards to the Law on Cohabitation.

Charne Sebonka
charne@bbplaw.attorney
Associate

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