What Are Cohabitation Agreements in South Africa?
Before diving into an example, let’s first define cohabitation. Cohabitation refers to the arrangement where two people live together in a romantic or domestic partnership without entering into formal marriage. While some couples may choose cohabitation for financial reasons, others simply prefer not to marry but still want to share their lives together.
Thus, life partners, regardless of gender, are allowed to enter into an agreement akin to an antenuptial contract. This agreement governs their respective responsibilities during the course of their union and outlines the financial implications in the event of its termination.
In South Africa, cohabiting couples do not have the same legal rights as married couples. This means that without a formal cohabitation agreement, cohabiting partners do not automatically share property or financial responsibilities, and issues such as inheritance or spousal support may be more complicated if the relationship ends.
Example of Cohabitation:
Let’s look at an example to illustrate how cohabitation works and the potential benefits and challenges it brings.
Example: Mark and Sarah
Mark and Sarah are in their early 30s and have been in a committed relationship for the last three years. They decided to move in together after dating for about a year. Both have successful careers but differ in their approach to marriage. While Sarah believes in the institution of marriage, Mark prefers not to formalize their relationship legally. Instead, they opt to live together and focus on their personal and financial goals.
As a cohabiting couple, Mark and Sarah share a rented apartment in Cape Town and manage household expenses equally. They both contribute to rent, utilities, groceries, and other shared costs. While Sarah takes care of most of the household chores, Mark handles maintenance tasks like repairs and car servicing.
Key Aspects of Their Cohabitation:
- Living Arrangement: Mark and Sarah’s cohabitation involves sharing a home where they both contribute equally to the cost of living and household responsibilities. However, since they are not married, there are no automatic rights to joint ownership of assets or property unless they agree on these terms.
- Financial Responsibilities: They’ve agreed that they’ll share the costs of rent, bills, and other living expenses. Each partner maintains their individual bank accounts, but both contribute equally to the shared finances. They also have separate savings, as neither has a legal claim to the other’s individual assets.
- Children: While Mark and Sarah are not currently parents, they have discussed the idea of raising children in the future. If they were to have children, they’d both share responsibility for their upbringing and financial support. However, without a legal agreement in place, issues like child custody or child support may become more complicated if they break up or one of them is unable to care for the child.
- Legal Protections: Since Mark and Sarah are not married and do not have a cohabitation agreement, there are no automatic legal rights between them in the event of separation. If they were to break up, they would need to decide how to divide their shared assets, such as household items, savings, or investments. Additionally, without a formal agreement, neither would be entitled to spousal support or inheritance rights unless specified in a will.
What Are the Key Legal Considerations for Cohabiting Couples?
While living together as a couple without getting married may seem like a simpler arrangement, there are important legal considerations that cohabiting partners need to be aware of. Here are some points to keep in mind:
1. Property Rights:
In a cohabitation arrangement, neither partner automatically owns the other’s property unless explicitly agreed upon. If Mark and Sarah were to separate, any property purchased together, such as furniture or appliances, would need to be divided fairly. However, if one partner owns property individually, the other partner would not automatically have rights to that property unless it was shared or there was an agreement in place.
2. Financial Support:
Without a cohabitation agreement, there is no automatic right to financial support if the relationship ends. If Sarah were to become financially dependent on Mark, for example, she would not have the same right to spousal support as a married partner would. A cohabitation agreement could address this issue and define whether one partner would be entitled to support in case of separation.
3. Inheritance Rights:
Cohabiting partners do not have automatic inheritance rights unless they are named in a will. If Mark were to pass away, Sarah would not inherit any of his assets unless he has made provisions for her in his will. Similarly, if Sarah were to pass away, Mark would not inherit her assets without a will stating so.
4. Parental Rights and Children:
If Mark and Sarah were to have children, they would both have parental rights and responsibilities. However, if they separated, legal issues such as custody and child support would need to be addressed. Cohabiting parents are not automatically entitled to the same rights as married parents, so a legal framework (such as a parenting plan or guardianship agreement) would be needed to address custody and support.
How to Protect Your Rights in a Cohabitation Arrangement
While cohabitation offers flexibility and autonomy, it also comes with legal risks. To protect yourself and your partner, it’s highly recommended to draft a cohabitation agreement. A cohabitation agreement can outline your financial responsibilities, property rights, and plans for the future. It can also include provisions for child custody, inheritance rights, and the division of assets in the event of separation.
By putting a clear, legally binding agreement in place, you and your partner can avoid misunderstandings and ensure that both of your interests are protected.
Let Burger Huyser Attorneys draft a cohabitation agreement that ensures your future together is secure.
Cohabitation, as seen through the example of Mark and Sarah, offers a flexible and less formal living arrangement for couples who are not ready to marry. While it allows partners to share their lives together, it also comes with potential legal risks and challenges, especially if the relationship ends or circumstances change.
If you’re in a cohabiting relationship or are considering moving in with a partner, our expert legal family law team can help you understand your rights and responsibilities. Contact Burger Huyser Attorneys, and book a consultation to ensure your cohabitation agreement can benefit you and your partner. Let us help you create a solid foundation for your relationship and protect your interests. To speak to one of our experienced 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
