Legal position of Co-Habitation in South Africa
Times are changing, and so are the view of people regarding marriage and relationships. While marriage may be chosen by many as a way of life, other people may opt for cohabitation. Cohabitation has easily increased in South-Africa and as a result it became more socially acceptable. If you are part of such a relationship it is essential to understand its legal implications, more so where a couple co-owns property, shares debts and other financial obligations or have kids together.
Understanding Cohabitation
Cohabitation exists where two parties regardless of gender, decide to live together as spouses without any prospect of getting married. Despite the time & effort that goes into building and maintaining such relationships, it is not a marriage and are therefore not recognized or protected by the law in any sense.
Men and women living together does not have the rights and duties that a married couple have as they are not bonded by any law. That should already be a sign to you that this living arrangement is not ideal.
Couples who are in a relationship for an extended period are often misled by the perception, that the duration of the relationship gives it the same rights and status as a common law marriage. Nothing could be further from the truth.
Still not convinced that cohabitation will impact your life negatively. If one partner dies without a valid will, their partner has no right to inherit under the Interstate Succession Act. To put it into perspective, you are not entitled to any of the assets or monies your partner possessed during their lifetime. Claiming that you are entitled to certain benefits of a ceased cohabitation relationship without actual proof of such will set you back massively.
As a lifelong partner to the relationship, your claim to secure maintenance in terms of the Maintenance of Surviving Spouses Act, will also prove to be unsuccessful as no duty to support each other in cohabitation exist. The Children’s Act, however, makes provision for children to be supported in the event where the relationship ceased or after one partner to the relationship died.
How to protect yourself when in a cohabitation relationship?
A Cohabitation agreement and a valid will.
If you really do not believe in the idea of a marriage, it would be in your best interest to appoint an attorney to draw up a cohabitation agreement to meet your specific needs. The agreement should include details of your assets, property, and the financial contributions each partner makes to the joint home.
You may even include a provision for the payment of maintenance upon termination of the relationship. You may also approach an attorney/court when your partner fails to adhere to the agreement.
It is also advisable to have a valid will when in a cohabitation agreement. This will put you in a position to inherit rightfully from the deceased estate.
A cohabitation agreement and a valid will affords you protection against unnecessary conflict, loss, and humiliation. Failing to have either one drafted for your relationship will certainly disadvantage you and in some instances leave you to face the full might of the law, alone.
Love will not secure your future, but we at DTL Law can. We will protect your interests by drafting you a cohabitation agreement and a will which relates to your specific needs.
For more info contact us on infobfn@dtllaw.co.za for the Bloemfontein office and adminmsb@dtllaw.co.za for the Mossel Bay office.
Article wrote by Candidate Legal Practitioner – Gerhardt Smith at the Bloemfontein office.