Cohabitation relationships refer to the act of living together with someone in an intimate and committed relationship without being married or in a civil partnership. It involves sharing a residence and often combining aspects of daily life, such as finances and household responsibilities. Cohabiting couples can be of any sexual orientation, and they share a mutual commitment to their relationship despite not being legally married or in a civil partnership.
Cohabitation, also known as a domestic partnership or being in a common-law marriage, isn’t legally recognised as a marriage in South Africa. This means couples who live together without getting officially married, regardless of how long they have been together, don’t have the same legal rights and protections as married couples. Here’s what you need to know in simpler terms:
Cohabitation Basics:
- Not Legally Recognised: Living together, no matter for how long, doesn’t grant you any automatic legal rights or duties that married couples have.
- Growing Trend: More people in South Africa are choosing to live together without getting married (the number of cohabitants increases by almost 100 percent each year), but it’s important to understand the legal implications.
Legal Differences from Marriage:
- No Inheritance Rights: If your partner passes away without a will, you don’t have the right to inherit their belongings like a spouse would.
- No Maintenance Rights: You can’t claim maintenance from your partner’s estate if they pass away.
- Financial Independence: Couples living together usually manage their finances separately. Joint bank accounts are rare, and debts or loans are the responsibility of the account holder.
Future Changes:
- Domestic Partnerships Bill: There’s talk of new laws that might give cohabiting couples some legal recognition, but as of now, these changes haven’t been made.
Cohabitation Agreements:
- Protecting Your Interests: Couples, regardless of their sexual orientation, can sign an agreement that outlines how they’ll manage their finances and property while living together and what happens if they split up. This can include how to divide property, handle living expenses, and whether any maintenance will be paid after breaking up. Such agreements are also referred to as cohabitation contracts or domestic partnership agreements.
- Legal Support: If your partner doesn’t stick to the agreement, you can go to court to enforce it.
What should the Agreement include?
The contents and nature of a cohabitation agreement will depend on the needs of the individual couples. They may include anything in the agreement that is not illegal, against the morals of society, or contrary to public policy.
The cohabitation agreement should clearly set out the following:
- that the agreement does not constitute a marriage;
- aspects regarding any joint property owned by the couple, such as a house. If they are buying or renting a house together, it is best to register or lease the house in both names. Alternatively, the agreement can include arrangements regarding the house in the event of the relationship coming to an end (other than by death);
- regulation of living expenses and which person will be responsible for what expenses;
- provisions to establish what property and liabilities will be kept separate;
- aspects regarding life insurance and pension funds;
- maintenance, if any; and
- duration and end of the agreement.
If You Break Up Without an Agreement:
Ending a relationship is never easy, and without a legal cohabitation agreement, it can be even more complicated for partners living together without being married. Here’s a closer look at what happens and your options:
Maintenance and Financial Support:
- No Automatic Right to Maintenance: If you’ve been living together without a formal agreement, you can’t automatically claim financial support from your former partner, neither while living together nor after the relationship ends.
Property and Financial Contributions:
- Reclaiming Contributions: Without an agreement, you generally can’t get back money you spent on your partner or shared living expenses. However, if you’ve significantly contributed to your partner’s property (like paying for home improvements), you might have a case for getting some money back based on the principle of unjust enrichment. This means that if you’ve added value to your partner’s property, it might be unfair for them to keep the benefit without compensating you.
Pension Benefits and Contracts:
- Pension and Third-Party Contracts: Cohabiting doesn’t entitle you to a share of your partner’s pension or allow you to bind your partner in contracts for things like household goods without a cohabitation agreement.
Dealing with Property:
- Dividing Shared Property: If you and your partner bought property together without a cohabitation agreement, the situation gets tricky. If you’ve both contributed to buying a home but only one of you is on the title, you might still be able to claim a share based on your contributions.
- Living in a Shared Home: If the home is in one partner’s name, the other doesn’t automatically have the right to stay there if you split up. But if both names are on the lease or mortgage, you both have rights to the property. This could mean selling the property and splitting the proceeds, or one person buying out the other’s share.
Legal Actions You Can Take:
- Going to Court for Property Division: If you’ve contributed to the value of property owned by your partner, you can ask a court to recognise your contribution and award you a fair share. This is complex and requires legal advice.
- Unjust Enrichment Claims: If you’ve financially contributed to your partner’s assets without fair compensation, you may be able to claim some compensation under unjust enrichment laws.
Cohabitation and Death:
When an unmarried couple lives together, navigating the aftermath of one partner’s death can be particularly complex and challenging due to the lack of legal recognition for cohabitation. Here’s an expanded look at what happens in these circumstances:
Inheritance and Intestate Succession:
- No Automatic Rights: Unmarried partners do not automatically inherit from each other’s estates under the Intestate Succession Act of 1987. If a partner dies without a will, legal inheritance rights first go to legally recognised family members, such as spouses, children, or other relatives.
- Proving Contribution: If the deceased partner has not left a will naming their cohabitant as a beneficiary, the surviving partner might face significant legal hurdles. They may need to demonstrate their financial or other contributions to the shared estate to claim any entitlements, a process that can be daunting, expensive, and emotionally draining.
- Complications with Previous Marriages: The situation becomes even more complicated if the deceased was still legally married to someone else, as the law prioritises the rights of legal spouses and descendants.
Dealing with Jointly Owned Property:
- Joint Tenancy Rights: If cohabiting partners are listed as joint tenants on a lease, the surviving partner has the right to continue living in the property for the duration of the lease but will be wholly responsible for the rent.
- Property Ownership: If a property is co-owned and registered in both partners’ names, the deceased partner’s share becomes part of their estate. To safeguard against potential disputes, it’s wise for each partner to specify in their will that their share should go to the surviving partner. Without such a will, the deceased’s share could go to their legal heirs (children, parents, or nearest blood relatives), leaving the surviving partner without a claim.
Without a Valid Will:
- Estate Distribution: If a cohabitant dies intestate (without a will), their estate is distributed according to the Intestate Succession Act, usually to legal family members of the deceased’s estate (children, parents, or nearest blood relatives). The surviving partner might not be recognised as an heir, further emphasising the importance of having a will even if you’re not married.
Accidental Workplace Death:
- Compensation Claims: Under the Compensation for Occupational Injuries and Diseases Act, the surviving partner may be eligible for compensation if they can prove financial dependency on the deceased partner who died from workplace injuries. This claim is contingent on there being no legal spouse and must be made promptly following the accident.
The Bottom Line:
Living together without being married is a personal choice that comes without the legal protection that marriage offers. Drawing up a cohabitation agreement (and a valid will) is a smart way to outline each person’s rights and responsibilities, but it’s crucial to remember that this doesn’t give you all the same rights as a married couple. If you’re considering this lifestyle, getting legal advice to draft a comprehensive agreement is highly recommended to protect both partners.
By Danielle Mylie | Associate
Email: danielle.mylie@barnardinc.co.za