What Are the Rights and Responsibilities of Cohabitating Couples in South Africa?Â
Cohabitation in South Africa, also referred to as a common law marriage, living together or a domestic partnership, 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.
Cohabitation, in its simplest form, refers to two people living together in a romantic relationship without formalizing the arrangement through marriage. In South Africa, as in many other parts of the world, cohabitation has become increasingly common as couples opt for a less formal approach to sharing their lives. However, despite its growing popularity, cohabiting partners are often unclear about their rights and responsibilities, especially when it comes to legal issues such as property division, financial support, and inheritance.
At Burger Huyser Attorneys, we believe that understanding the legal requirements for cohabitation is essential to ensuring a smooth, well-managed relationship.Â
1. Mutual Agreement to Live Together
The most fundamental requirement for cohabitation is the mutual decision of both partners to live together in a domestic partnership. This decision can be based on love, companionship, financial convenience, or simply the desire to share life experiences together. While the arrangement does not require a formal ceremony like marriage, both parties must be in agreement on the nature and terms of the living arrangement.
However, it’s important to note that cohabitation should not be mistaken for a “trial” marriage or casual living arrangement. Both individuals need to actively contribute to the household, whether financially, emotionally, or in terms of shared responsibilities.
2. A Long-Term, Committed Relationship
While there are no strict legal requirements for a specific duration, most cohabitation arrangements are based on long-term, committed relationships. Short-term living arrangements or casual relationships without an intention to build a life together are generally not considered cohabitation in the legal sense.
In South Africa, for legal matters such as property ownership or maintenance claims, the relationship must be viewed as having a certain level of commitment. This is typically evaluated on a case-by-case basis and may take into account factors such as the length of the relationship, shared financial responsibilities, and the nature of the domestic partnership.
3. Shared Household and Financial Responsibilities
For a relationship to qualify as cohabitation, the couple must share a household and contribute to it in a meaningful way. This includes sharing living expenses such as rent or mortgage payments, utilities, groceries, and other household costs. Both parties should be actively involved in maintaining the home and contributing to its upkeep.
In many cases, cohabiting couples also share financial responsibilities, whether through joint bank accounts, pooling resources for specific purchases, or contributing to mutual investments. Without this financial interdependence, the relationship may not be recognized as cohabitation under the law, and the rights and responsibilities of each partner may be unclear.
4. No Formal Marriage or Civil Union
One of the key distinctions of cohabitation is that the relationship is not legally formalized through marriage or a civil union. In South Africa, a civil union provides many of the same rights and responsibilities as marriage, but cohabiting partners are not bound by the same legal framework unless they enter into a civil union or marriage.
Without formalizing the relationship through legal means, cohabiting partners generally do not have the same automatic legal rights that married couples have. For instance, in the event of a breakup, cohabiting partners do not have the same protections when it comes to asset division or spousal maintenance.
5. The Absence of Legal Formalities (But the Option for a Cohabitation Agreement)
Although cohabitation does not require legal formalities, couples may choose to formalize their relationship through a cohabitation agreement. This document is crucial for cohabiting partners who want to protect their rights and define their legal responsibilities clearly. It can address a wide range of issues, including:
- Property Ownership and Division: Who owns what property, and how assets will be divided in the event of a breakup.
- Financial Support: How financial contributions will be managed, including handling shared expenses or debts.
- Parental Rights and Responsibilities: If children are involved, the cohabitation agreement can define child custody arrangements and financial responsibilities.
- Inheritance Rights: Unlike married couples, cohabiting partners have no automatic inheritance rights. A cohabitation agreement can specify how property and assets should be divided if one partner passes away without a will.
Having a cohabitation agreement in place can help ensure that both partners are protected and that any potential disputes are addressed before they arise.
6. Acknowledging the Need for Legal Protections
While South African law does not automatically grant the same rights to cohabiting couples as married couples, certain legal protections are available under specific circumstances. For example, cohabitants may be entitled to maintenance if one partner is financially dependent on the other, especially if the relationship was long-term and one partner contributed significantly to the other’s well-being.
The Maintenance of Surviving Spouses Act provides protection for cohabiting partners in cases of financial dependence, allowing one partner to claim maintenance from the other if they have been in a committed relationship for a certain period. However, this is not automatic, and both partners must demonstrate their financial dependence to a court.
7. The Importance of Communication and Documentation
Clear communication and mutual understanding are crucial when cohabiting. Discussing issues such as finances, property ownership, household responsibilities, and future plans can help avoid misunderstandings and protect both partners. Furthermore, documenting your agreements through a cohabitation agreement ensures that both partners have legal clarity.
If you are considering cohabitation or are already living with a partner, take the time to sit down together and discuss your expectations and responsibilities. This can help create a strong foundation for the relationship and reduce potential conflict later on.
Let Burger Huyser Attorneys’ family law experts assist you in drafting the best cohabitation agreement for your unique partnership.Â
Cohabitation can be an exciting and fulfilling way to build a life with a partner. However, it’s important to understand that while cohabiting couples share many responsibilities, they do not automatically share the same legal rights as married couples. Whether you are entering into a cohabitation arrangement for the first time or are already living with your partner, it’s crucial to understand the legal requirements and take steps to protect both your rights and your partner’s.
At Burger Huyser Attorneys, we specialise in family law and can guide you through the complexities of cohabitation. Whether you need assistance drafting a cohabitation agreement, addressing property rights, or understanding your financial responsibilities, we’re here to help.
Contact Burger Huyser Attorneys, and book a consultation to ensure that your cohabitation arrangement is legally secure and well-protected. Let us help you navigate the legal aspects of your relationship so you can focus on what matters most – building a life together. To speak to one of our experienced family attorneys 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
