Article by Dr. Jan – Harm Swanepoel
What is Cohabitation?
There is a myth that common law marriage both exists and is recognized in South African law. This is not true. When people think about a common law marriage, what they are usually thinking about is something called cohabitation. Cohabitation generally refers to the situation where two people, regardless of gender, choose to live together. Examples of cohabitation are universal partnerships and domestic partnerships. These relationships are not recognised as legal relationships in South African law and therefore there is no specific law that governs them.
The relationship does not need to have a romantic aspect in order for it to qualify as cohabitation. It could be a relationship of convenience for example roommates sharing a living space or an elderly person sharing their home with a care giver.
In order for a cohabitation arrangement to have both legal significance and legal consequences, a cohabitation agreement must be concluded between the persons who are cohabiting.
What is a Cohabitation Agreement?
A cohabitation agreement is a formal, written contract entered into by the persons who are cohabiting that regulates the cohabitation relationship and determines and sets out the rights (what each person is entitled to do) and the obligations (what each person is required to do) of both persons during the course of the relationship and in the event that it should come to an end. This contract will form the basis for enforcing the rights and obligations detailed in the contract against the persons who are cohabiting.
This agreement will also provide for what will happen if the cohabitation relationship comes to an end. This aspect of the agreement will usually deal with the financial consequences of ending the cohabitation relationship, for example, how the property of the two persons is to be divided, as well as other aspects such as custody of any children and maintenance of those children. A cohabitation relationship will end when they persons agree to terminate the relationship or if one of the persons dies during the course of the cohabitation relationship.
It is important to understand that this agreement is only enforceable against the persons who are parties to the agreement and not third parties (in other words, people who are not part of the relationship). A cohabitation agreement is the best and easiest way to protect yourself and the person with whom you are cohabiting in the event of the relationship coming to an end by dissolution or death.
Contents of a Cohabitation Agreement:
A cohabitation agreement will contain all the clauses necessary to manage the relationship. The agreement can be drafted to reflect the unique nature of the relationship that is being regulated. After consulting with us, we can determine exactly what you need to include in the agreement. We will also be able to advise you of other clauses that could or should be included in the agreement based on the nature of your specific relationship.
Legal Implications of Cohabitation Relationships:
Cohabitation relationships are not recognised in South African law and are not controlled by any particular legislation. There is no automatic protection granted to persons in cohabitation relationships like those granted to a legally married couple. The best way for you to protect yourself and the person with whom you are cohabiting is to conclude a cohabitation agreement. While this agreement will provide some protection and security for the persons involved, it still does not necessarily afford them the protections granted to a married couple. Here are some specific examples:
If a person passes away without having a valid will, the Intestate Succession Act, 81 of 1987, will determine who the heirs of that person are and in what proportion they will inherit from the deceased person. If one of the persons in a cohabitation relationship dies without leaving a valid will, the surviving cohabitant will not be eligible to inherit from the deceased cohabitant in terms of intestate succession.
The Pension Funds Act, 24 of 1956, refers to “dependents” and not “spouses” for the purposes of determining who may receive the pension benefits of a deceased member of the fund. The determination of whether a person was a dependent of the deceased member is a factual decision and evidence of cohabitation would not necessarily be sufficient to prove dependency.
Medical Aid Schemes:
The Medical Schemes Act, 131 of 1998, also refers to “dependents” but extends the definition by also referring to “partners”. This indicates the intention to include persons who are not legally married but are in some form of permanent relationship. It stands to reason that person in a cohabitation relationship could fall into the definition of “dependents” if they can prove the existence of the cohabitation relationship.
We highly recommended that persons who intend on living with a partner without legally marrying that partner, as well as those who are already in a cohabitation relationship of any sort, conclude a cohabitation agreement if they have not done so already. A cohabitation agreement can provide valuable protection for both persons in the relationship while the law as it currently stands does not offer any formal protection for these persons at the time of writing.
If you are in a cohabitation relationship or you plan on entering into one, contact us so that we can assist you in drawing up a cohabitation agreement that suits your needs.