23/06/2016
THE COHABITATION MYTHS
In South Africa there is a myth that, if you are not married, but living with (cohabiting) your partner for a certain amount of time, it translates into a “common law marriage” by default.
The truth is:cohabitation or living together is not recognised as a de facto marital relationship, of any kind, in terms of South African law. This presents a problem because people often believe that they are afforded a certain legal rights simply because of their living arrangements. In many instances, in the event that the unforeseeable happens to one partner (illness or even death) or you break up (the relationship is terminated), you do not have the legal protection in place you may expect. For that reason, couples need to know their rights and how to protect it.
WHAT HAPPENS IN THE CASE OF A BREAK-UP?
Unlike a marriage, where spouses are entitled either to a half share of the joint estate or a share in the accrual, when a cohabitation relationship ends, all the parties’ assets will be divided in accordance with “who owns what” and no maintenance is payable to either party. So, it is crucial to ensure you can prove ownership. This can become problematic when, for example, the immovable property is registered in one partner’s name only. The partner who does not have ownership of the property may be under the impression he or she eventually has the right to a part of the profit or value of the property. It is very important to note that this is not the case and it could leave that person concerned, severely prejudiced. The only option such a person has, is to attempt to prove a universal partnership in court. This has proven to be very challenging.
SO, WHAT IS THE SOLUTION? (Cohabitation Agreement)
Life partners or partners living together, can enter into a contract. This is, in many ways, very similar to an antenuptial contract. This agreement is commonly referred to as a cohabitation agreement. It
will contain regulations regarding finances during the existence of the cohabitation relationship and deal with the division of assets upon termination of the relationship. In addition, it also deals with other arrangements the parties may wish to include, provided its inclusion is not against public morals and good faith. Parties may even include a provision for the payment of maintenance. This agreement will shed light on the expectations that each partner may have with regard to his/her financial contribution to their joint household and assets (acquired individually or jointly), and provides an opportunity to iron out issues that may otherwise arise in future. It also provides legal security, because if one partner defaults on the terms of the agreement, the other partner can approach a court for assistance and an appropriate order in terms of the agreement.
CONCLUSION
Cohabitants who fail to draw up a cohabitation agreement, or a proper will for that matter, will have no automatic legal protection in terms of South African law, unless they can prove the existence of a universal partnership. We advise that parties avoid the risks, costs and potential trauma by entering into a cohabitation agreement. In addition, to have a will drafted professionally in order to ensure that your partner inherits from you. Speak to us today for sound advice or to assist you in setting up the most suitable cohabitation agreement and wills for you and your partner.
