Cohabitation is a relationship between two people who choose to live together in a monogamous and stable environment. Couples who decide on cohabitation could do so, prior to getting married, as an alternative to marriage, or while they are still in the process of divorce and are already living with their new partner.
The differences between marriage and cohabitation are as follows:
No legal protection if/when the partnership ends.
Claiming maintenance after a separation could be more difficult/impossible.
No court is required to end the relationship.
Partners won’t necessarily inherit from each other.
Cohabitants cannot insure each other’s property.
What happens if there is no written cohabitation agreement?
If there is no agreement on the dissolution of a relationship, a person is only entitled to retain the property which s/he has purchased and owns.
The couple would be entitled to share in the property proportionately in terms of the contribution which they have made to the relationship. Each person will need to prove what property they have acquired together in order to get back what they are entitled to.
If a dispute arises, a court may be approached for assistance.
How are couples protected in cohabitation?
In order to protect the couple in cohabitation, rights and obligations of the couple can be protected by way of entering into a cohabitation agreement. The agreement regulates the relationship during its existence and after it has come to an end.
A cohabitation agreement can be entered into verbally or in writing. It is recommended that such an agreement be concluded in writing and signed.
The agreement can be concluded at any time during the relationship.
A cohabitation contract
If two partners have decided to live together it would be beneficial to have a contract drawn up. These are some elements the contract could contain:
Household expenses: Who is responsible for paying what and from whose account?
Joint property: If you want joint assets rather than separate assets.
Joint home: If you want a home to be registered in both names of the partners, however, the partners don’t have to have equal shares in the property.
End of relationship: Deciding what will happen with each other’s assets after the relationship ends and whether or not one partner will be able to receive maintenance from the other.
Children: If there’s a child, the parental rights and responsibilities should be set out, but this has to be done with legal advice first and should be registered.
Cohabitation can be successful in and of itself, but without a contract there are no ‘safety nets’. This could prove a mistake in relationships where property or a child is involved.
Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)