The legal consequences upon the dissolution of a cohabitation relationship

While many young adults prefer the sanctity of exchanging vows and entering into a marriage, some couples opt for less traditional forms of commitment and choose simply to live together – or, to cohabit.

In this post, we answer the following questions:

Cohabitation is often referred to as a domestic partnership, living together, or, incorrectly so as a common-law marriage. Despite these definitions assigned to the notion of cohabitation over time, it is not recognised as a legal relationship by South African law.

1. What is cohabitation?

The term cohabitation refers to a couple living together as spouses, regardless of gender, without entering into a marriage and therefore without the application of the familiar patrimonial consequences that follow from a civil marriage.

2. What happens in the event that a cohabitation relationship dissolves?

The spouse(s) is now faced with questions regarding the ownership of jointly acquired assets, liability for debts, settlement of accounts, and a host of other issues. Then only to learn that, contrary to the consequences of a civil marriage that is regulated by specific legislation, there is no “law of cohabitation”. No amount of time spent living together will convert the cohabitation relationship into one where legal rights and duties automatically flow from the relationship.

3. How does one address this?

Couples who cohabit are encouraged to conclude a Cohabitation Agreement or Domestic Partnership Agreement to arrange their rights and obligations towards each other. Such agreement records the parties’ wishes regarding finances, the joint household, and any assets acquired individually or jointly whilst they are in a long-term relationship. In the event of the dissolution of the cohabitation relationship, couples will have certainty regarding the patrimonial consequences that follow.

Another important document to consider in conjunction with the above agreement is a will. A cohabitation agreement cannot regulate inheritance in the event of death. For example, when a cohabitant dies without a valid will, his or her partner has no right to inherit under the Intestate Succession Act and he or she can also not rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance. To ensure that your assets devolve to the person(s) intended, it is vital for both parties to ensure that they have a valid will in place.

Contact our Family Law Department on 041 363 6044 or info@kaplans.co.za for sound legal advice.