What is the Legal Difference Between Cohabitation & Marriage?
As relationships evolve, so do the ways in which couples choose to formalise their commitments. While a marriage contract has traditionally been seen as the ultimate expression of a romantic partnership, cohabitation agreements are becoming increasingly popular for couples who live together without tying the knot. Both options offer unique legal implications and protections, and understanding the differences between cohabitation agreements and marriage contracts is crucial for making informed decisions about your future.
At Burger Huyser Attorneys, we specialise in helping couples navigate their relationship choices from a legal perspective. In this article, we will compare cohabitation agreements and marriage contracts, examining their similarities, differences, and what they mean for you legally in South Africa.
What is a Cohabitation Agreement?
A cohabitation agreement is a legal document entered into by two people who live together in a long-term relationship but are not married. The purpose of the agreement is to outline the rights and responsibilities of both parties concerning finances, property, children, and other important matters in the event of a breakup or other significant life changes.
Unlike marriage, which automatically comes with certain legal rights and obligations, a cohabitation agreement allows couples to explicitly define their arrangement and clarify their expectations. It is particularly useful for couples who want to protect their interests, avoid conflicts, or simply choose to remain unmarried.
Key Features of a Cohabitation Agreement:
- Property and Assets: The agreement can specify who owns what and how property and assets will be divided if the relationship ends.
- Financial Responsibilities: Couples can agree on how to share living expenses, handle joint debts, and contribute to each other’s financial well-being.
- Children: If the couple has children, a cohabitation agreement can outline parental responsibilities, child support, and decision-making.
- Separation Terms: In the event of a breakup, the agreement can provide clear terms for the division of assets and responsibilities, helping to avoid disputes.
Advantages of a Cohabitation Agreement:
- Flexibility: Couples can tailor the agreement to suit their unique situation.
- Clear Legal Protection: Protects both parties in the event of a breakup, especially regarding financial matters and property division.
- No Need for Marriage: Couples who prefer not to marry or who don’t believe in the institution of marriage can still benefit from legal protections.
Disadvantages of a Cohabitation Agreement:
- Lack of Automatic Legal Rights: Without a cohabitation agreement, cohabiting partners don’t automatically have the same legal rights as married couples, such as rights to inheritance or spousal maintenance.
- Complexity: Drafting a comprehensive cohabitation agreement can be time-consuming and requires careful legal consideration.
What is Marriage?
Marriage is a legally recognized union between two people, typically involving legal and social responsibilities, as well as rights and privileges. In South Africa, marriage provides automatic legal recognition and entitles married couples to specific rights, such as joint ownership of property, inheritance rights, and entitlement to spousal maintenance.
There are two primary forms of marriage in South Africa: civil marriages and customary marriages, both of which offer legal protections and obligations. Once a couple is married, they become legally responsible for each other, and the marriage is recognized by the state.
Key Features of Marriage:
- Legal Rights and Protections: Married couples automatically gain certain rights, including inheritance rights, tax benefits, and spousal support in the event of divorce.
- Property Regimes: In South Africa, married couples must choose between two property regimes: community of property (where assets and liabilities are shared equally) or separation of property (where each spouse keeps their individual assets).
- Spousal Maintenance: In case of divorce, one spouse may be entitled to spousal maintenance, depending on their financial circumstances.
Advantages of Marriage:
- Automatic Legal Rights: Marriage provides automatic recognition by the state, offering various legal protections, including inheritance rights and access to medical benefits.
- Clear Legal Framework: The legal framework around marriage is well-established and easier to navigate, making it less likely that couples will face confusion or disputes.
- Financial Security: Spouses may be entitled to spousal support and maintenance in the event of divorce, providing financial stability.
Disadvantages of Marriage:
- Legal Obligations: Marriage comes with automatic legal responsibilities, including joint property ownership and the potential for spousal maintenance claims.
- Divorce Process: Divorce in a marriage can be a lengthy and costly process, particularly when it comes to the division of property and assets.
Cohabitation Agreements vs Marriage Contracts: Key Differences
- Legal Recognition:
- Marriage: Automatically recognized by the state, with built-in legal protections and rights.
- Cohabitation Agreement: Requires a formal, written agreement to establish legal rights and protections.
- Financial Responsibilities:
- Marriage: Couples share joint assets and liabilities unless they opt for a prenuptial agreement or separation of property.
- Cohabitation Agreement: Allows couples to define their financial responsibilities, including how assets and liabilities will be managed.
- Rights Upon Separation:
- Marriage: Automatically provides rights to spousal maintenance, division of assets, and inheritance.
- Cohabitation Agreement: Provides legal clarity on property division and financial responsibilities in the event of a breakup but does not automatically grant spousal support or inheritance rights unless explicitly stated in the agreement.
- Children’s Rights:
- Marriage: Marriage does not automatically impact parental rights, but married parents have a clearer framework for child custody and support.
- Cohabitation Agreement: Provides a clear outline for parental responsibilities, child custody, and financial support if both parents agree to these terms.
- Flexibility:
- Marriage: Fewer options for customizing the arrangement; legal provisions are automatically applied.
- Cohabitation Agreement: Highly customizable, allowing couples to tailor the agreement to their unique needs.
Which Option Is Right for You?
The choice between a cohabitation agreement and marriage ultimately depends on your personal circumstances and preferences. Marriage provides automatic legal protections but comes with certain legal obligations and responsibilities. On the other hand, a cohabitation agreement offers more flexibility, allowing couples to define their relationship and financial responsibilities without entering into a formal marriage.
At Burger Huyser Attorneys, we understand that every relationship is unique. Whether you’re considering a cohabitation agreement or marriage, our experienced legal family law team is here to help you navigate your options. We can assist you in drafting a cohabitation agreement or offer guidance on marriage and related legal matters.
If you need advice on cohabitation agreements, marriage, or any other family law matters, reach out to us today. Let us help you make informed decisions for a secure future.
Contact Burger Huyser Attorneys, and book a consultation for professional and compassionate legal assistance. To speak to one of our experienced antenuptial contract attorneys or cohabitation agreement lawyers in South Africa for immediate assistance, contact us on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton callÂ
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
