• The Kaplan Team

LET'S TALK Clarifying Cohabitation

Cohabitation, which is also commonly referred to as a "common law marriage" or "domestic partnership" is not recognized as a legal relationship or a default marriage in South African Law, regardless of the amount of time a couple has lived together. 


Unlike a "normal" marriage which is regulated by specific legislation, a cohabitation relationship does not enjoy such protection.  As a result, should such a relationship terminate or should a partner in such a relationship die without leaving a valid Will, the surviving partner is inevitably left vulnerable and without legislative protection, protection which is otherwise enjoyed by married spouses engaged in a "normal" marriage relationship.  By way of illustration a surviving partner in a so-called "common law marriage" has no right to inherit under the Intestate Succession Act, nor may such a surviving partner depend on the Maintenance of Surviving Spouse Act to secure maintenance from the estate of the deceased partner. If the partners in a so-called "common law marriage" cohabit upon immovable property owned by only one of the partners, the partner who is not the registered owner/co-owner of that property has no rights to it.


In order for partners in a so-called "common law marriage" to enjoy protection against the risks and consequences alluded to, life partners may wish to consider entering into a cohabitation agreement with one another. A cohabitation agreement regulates the partner’s respective rights and obligations during the subsistence of their union and the patrimonial consequences in the event such union terminates, directing the division and distribution of their assets.  It is also permissible for parties to make provisions for the payment of maintenance upon the termination of their union.


Should either partner breach the cohabitation agreement concluded between them, the aggrieved partner is entitled to approach the courts for an order enforcing the terms of the cohabitation agreement against the defaulting partner.

Where no cohabitation agreement exists our courts have, on occasion, come to the assistance of couples engaged in a so-called "common-law marriage" if persuaded, on the facts of each case, that an express or implied universal partnership existed between the parties in question.  Universal partnerships must however satisfy four legal requirements, namely:

1.            The aim of the partnership must be to make a profit;

2.            Both parties must contribute to the enterprise;

3.            The partnership must operate for the benefit of both parties;

4.            The contract between the parties must be legitimate.


Even though there is no special regime for cohabitees, the universal partnership figure can be used to give both parties a right to share in all property acquired during, and even before the commencement of the relationship, if such a partnership was created tacitly or expressly.


If you have any queries regarding a cohabitation agreement, or the legal implications of a universal partnership, please do not hesitate to contact our Family Law Department.


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