Legal Articles

It's Complicated

Cohabitation has become for many a default status for many couples in long term relationships.

Relationships and Finances

All good relationships are built on trust; however that does not excuse overlooking your own financial situation. 

Living together unmarried has definite implications that ensure you need to plan your financial partnership very carefully. This is partly due to a lack of the obligations and protection that a marriage contract automatically provides.

You could be in a vulnerable financial position if you live with your partner and have not formalized your relationship legally, as common-law relationships are not recognized in South African law.

Less marriage, more cohabitation

Due to an increase in numbers of South Africans who choose not to marry, the situation is changing. The view that both heterosexual and same-sex relationships should be legally recognized is continuing to grow.

South African Law and Cohabitation

At this time, the law is still considered unsatisfactory because it does not place cohabitants in the same league as partners in a marriage or a civil union.

The recognition of cohabitation is limited to specific pieces of legislation. Cohabitation is not legally recognized as a relationship as there is no uniformity across legislation protecting unmarried couples.

An example of a cohabitation where the law should apply in a similar way to married couples:

The cultural marriage of a Muslim couple is not recognized in the eyes of the law, however the marriage itself serves as a contractual agreement that the partners will look after one another. Therefore if a work-related accident occurs, and a husband passes away, the widow should be able to receive compensation from the husband’s employer.

Through the years, many laws have been challenged by cohabiting couples and some have been successfully amended; giving cohabiting partners some rights, or at least having the issue brought to light.

Universal Partnerships

Certain laws have extended the definition of a spouse to include cohabiting partners in a long-term and monogamous relationship. In recorded cases, there have been cohabiting couples who have convinced the courts that they have lived together for many years, and so have jointly accumulated wealth. The court has ruled that these couples should enjoy a legal status similar to that of a married couple.

This type of relationship where parties act like partners in all material aspects without actually entering into a partnership agreement is called a universal partnership.

In order to prove that one has entered into a universal partnership, they must offer evidence that specific requirements have been satisfied:

• Both parties must make contributions to the enterprise;
• The main goal of the partnership must be to produce a profit;
• The partnership must function for the benefit of both parties; and
• The agreement between the parties must be legitimate.

Legal Recognition of Cohabitation

As stated previously, the recognition of cohabitation is limited to specific laws and pieces of legislation. There is no uniformity across all laws protecting unmarried couples; therefore without a specific law to regulate cohabitation, it is still not recognized as a legal relationship. 

If a relationship in this situation ends, it is very common for the finances of both to become very complicated, often with one partner, more often than not the female, feeling the brunt of the devastation and financial loss.

Cohabitation Agreements in South Africa

A cohabitation agreement is a way for unmarried couples that are in long-term relationships to protect their rights and finances. If no contact is formed, anything owned prior to the relationship stays with the original owner and what is accrued together is not shared.

A cohabitation agreement is a legally binding document between two partners. However, to enforce those rights stated, one must take their partner to court, which is a lengthy and costly process.

There is no standard format for a cohabitation agreement, however a cohabitation agreement should stipulate which possessions are his; hers and theirs by stating:

• Who should get what, should the relationship end.
• Clauses dealing with immovable property (homes, etc.)
• Clauses dealing with expensive movable items (e.g. refrigerators or washing machines) bought by one party for both to use.
  • Whether belongings should remain in possession of the purchaser or
  • Provide an accrual system in which all possessions are shared (irrespective of who paid for what)

It can be extremely difficult to spell out the rights of each party to the accumulated possessions of the partnership, therefore it is advisable to seek the advice of an attorney (preferably a family law specialist) and have them draw up the agreement.

The advantages of a cohabitation agreement over a marriage agreement:

• Arbitration - One could choose to go to arbitration rather than to court.
  • Arbitration is not a permitted way to reach a settlement and dissolve a marriage.
  • One may choose an arbitrator with specialist knowledge in family law.
  • It could take up to 18 months to get a court date; therefore arbitration is a far faster process.
• A Cohabitation agreement does not need to be notarized to make it enforceable.

Buying a house with your partner

If a couple buys a house together, it should be registered in both of their names and mentioned. The reason for this is: if the property is registered in one partner’s name, the other partner will be at risk of a considerable loss if the relationship comes to an end, irrespective of the cause (whether death or a breakup).

The person whose name is on the deed of the property is the sole owner. This applies even if the other partner has made significant contributions to the bond or other fees pertaining to the property.

If a partner contributes to a property that is not registered in their name, they risk facing a legal battle when it comes to the division of assets and recovering money from a past partner. They would need detailed records of the expenditure on the property for a start.

If a couple registers a property in both names:

• Both partners will have a stake in the property.
• Both partner’s interests are protected in terms of the title deed.
• If the relationship ends, one partner can by the other out and take transfer of the share of the property. Transfer duty and costs have to be paid, but this works out to be less than if the entire property were transferred.
• If a couple registers jointly on a property, it does not have to be shared 50:50.
  • Property can be registered 80:20 or 70:30 when there is a large difference in the financial input of the partners.
  • The bond on such a property must be registered in both partner’s names too.
    • How the couple pays for the bond is their decision, however the banks will commonly hold both partners liable 50:50.
    •  Banks hold partners both jointly and severally liable if the bond falls into arrears. If one partner does not pay their share of the bond, the other partner will be individually and jointly liable or the outstanding amounts in order to minimize the bank’s risk.

If one partner defaults on their portion of the bond instalments, the other partner could end up paying it to prevent the bank from repossessing the home. 

If a cohabitation agreement is presented, the victimized partner can sue the other for what they have paid on that partners behalf.

If one’s name does not appear on the title deed and there is no cohabitation agreement, the law will see that person as having no share in the property.

Death and Estates

Married couples automatically inherit from each other when one dies. According to the South African law reform commission, a partner is not automatically regarded as an heir or a dependant, no matter how long they have cohabited together.

If there is no valid will, the beneficiaries of the estate are first spouse or descendants, or both. In the event that there is no spouse or descendants, the estate will be received by more distant family members.

If a couple had cohabited out of wedlock and one partner failed to make the other a beneficiary in their will, the surviving partner would have to prove their contribution to the joint estate before being entitled to anything.

The best precaution for cohabiting partners is to create wills naming each other as beneficiaries. Alternatively inheritance can be regulated by means of a cohabitation agreement.

Legislation that favours cohabitation agreements

• The Domestic Violence Act recognizes cohabitation as a partnership.
• The medical Schemes Act definition of a dependant includes a “partner”.
• Cohabitants are treated as spouses in terms of the Income Tax Act and the Estate Duty Act. The definition “spouse” includes a partner in a permanent heterosexual or same-sex relationship.
• Each partner in a cohabitation relationship has the right to name the other partner as a beneficiary in their life-insurance policies. The nomination must be clear, as some policies have contains clauses which confer the benefits on members of the insured’s family.

Maintenance Claims

Marriage is a contract which states that partners have a legal duty to support each other during their marriage. The obligations end on divorce, unless maintenance is ordered by the courts.

There is no reciprocal duty of support in partnerships of cohabiting couples. Therefore, when these couples separate, the unmarried partner is not entitled to maintenance from the former partner, unless there is a cohabitation agreement in effect.

If such a partner attempts to claim maintenance, they must prove that their former partner agreed to support them. This must be proved in court by presenting evidence or a cohabitation agreement.

Proposed new legislation for cohabitation

New proposed laws could result in domestic partnership acts. If these laws are created, they will make maintenance rights available to unmarried couples in certain circumstances. 

In the interim, case law provides some ways for partners to claim maintenance from each other if there was a duty of support.
Medical scheme benefits and cohabitation

The Medical Scheme Act bans the registration of a medical scheme that discriminates against its members. Therefore medical schemes may not discriminate against individuals who are in a same-sex relationship or cohabiting couples by refusing to register their dependants (which includes their partners) if, according to their specific scheme, they can provide proof that they have cohabitation for the minimum required period of time.

Children born out of wedlock in South Africa

The law states that biological parents are obliged to support their children, contributing to the costs of birth and maintenance of the child. The maintenance is calculated according to the ability of the parents to contribute and to reasonable needs of the child. The law does not distinguish between unmarried and married parents when it comes to the responsibility to support their children.

There is no obligation on a cohabiting partner to support their partner’s children in any way, unless they are a biological parent.

Times they are a-changing

Cohabiting couples may experience vast changes in the near future. The South Africa Law Reform Commission has prepared and released a paper on domestic partnerships. The main goal of the paper is to give rights to homosexual and heterosexual cohabiting couples.

Currently, marriage is the only legally recognized form of intimate partnership. Cohabiting partnerships are not legally recognized and are excluded from the rights and obligations automatically received by married couples.

However the numbers of couples choosing to cohabit instead of marry had increased worldwide. Social customs are changing and replacing the notion of marriage being the only acceptable form of relationship. Many see that cohabiting partnerships function very similarly to marriage.

Cohabiting partners have challenged the court on multiple occasions, causing various laws to extend the definition of spouse to include a partner in a homosexual or heterosexual relationship. 

However, they are still faced with countless laws, all with differing criteria in order for a partner to enjoy the benefits. More and more people agree that cohabiting partnerships need to be recognized legally.

Van Deventer and Van Deventer Incorporated - Family Law Specialists

If you find yourself in any of these situations, it is always wise to seek advice from a legal professional. Van Deventer and Van Deventer Incorporated can provide you with expert legal advice from attorneys in Johannesburg and attorneys in Cape Town.

Our attorneys and divorce lawyers are well versed in all aspects of family law and will assist you to navigate through any circumstance.

Contact us for cohabitation agreements