WHAT IS COHABITATION?
Cohabitation refers to a couple, heterosexual or same-sex, living together without being legally married to each other. While many people have believed that cohabitation is common law marriage, it is not recognised as a legal relationship by South African law. There is, therefore, no law that regulates the rights of parties in a cohabitation relationship. Persons living in cohabitation arrangement do not enjoy the same rights as a legally married couple regardless of how long the couple has stayed together, all the while the living arrangement of cohabitation is increasingly becoming the norm in South Africa.
What are the Legal Rights & Protection for Cohabiting Couples in South Africa?
Because parties who are cohabiting are not afforded the same rights as those of married couples, in the event of the death of the one partner, the other partner will be precluded from inheriting in the estate of the deceased partner in terms of the Instestate Suuccession Act if the deceased partner died with a executing a will. However, nothing prevents either partner from naming the other partner as a beneficiary to inherit under their respective last will and testament. Furthermore, the surviving partner will not have a spousal maintenance claim in terms of the Maintenance of Surviving Spouses Act against the estate of the deceased partner as this is a claim that can only be lodged by a legally married spouse.
In South Africa, banks do not usually allow joint bank accounts to cohabitants, however, they do allow co-signing rights and therefore any debt incurred by the owner of the bank account will be executed upon on the said bank account. The other partner will be left with the strainous exercise of having to prove that they have their monies in that bank account or will have to claim their money against the indebted partner. Furthermore, should the partner in whose name the bank account is held have an overdraft facility, the money in the bank account will be deducted regardless of which partner holds what share and in what ratio.
On occasion, courts in South Africa have assisted couples in recognising that a universal partnership does exist between them. A universal partnership recognises a partner’s joint material status, in other words, the court would award a share of the assets that the relationship acquired during the partnership to each of them. The requirements which have to be met to prove a universal partnership are:
- that the aim of the partnership is to make a profit;
- both parties have contributed to the enterprise;
- the partnership operates for the benefit of both parties; and
- the contract between the parties is legitimate.
The Supreme Court of Appeal in Butter versus Mncora (2012) held that the man and woman in question, who had lived together as husband and wife for nearly twenty years, had tacitly entered into a universal partnership in which the female partner had a 30 per cent interest. She was thus awarded an amount equal to 30 per cent of her partner’s net asset value as at the date when the partnership came to an end.
INSIST ON DEALING WITH EXPERTS TO DRAW UP YOUR COHABITATION AGREEMENT.
In order for us to tailor make a cohabitation agreement that suits your living arrangement, please feel free to make an appointment with one of our Family Law Attorneys in our Johannesburg office for a consultation. You are also entitled to draw up a contract which is similar to an antenuptial contract and are at times referred to as domestic partnership agreements. This is the responsible thing to do in a cohabitation relationship because as the case with a marriage, a time could come when the relationship is terminated and then you will both be covered.