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Cohabitation Relationships and Agreements


What is a cohabitation relationship?

“Living together is an art.” – William Pickens.

Cohabitation differs from a marriage in that it is a monogamous relationship between any two people that choose not to, or are not allowed to, get married but still live together as spouses. While cohabitation is often mistaken for a common law marriage, it is not recognised in South African law, regardless of how long the couple cohabitate together. Furthermore, Cohabitation does not automatically create any legal rights and duties between the applicable parties.

The only way to currently regulate a cohabitation between two people is through a cohabitation agreement.

How does one identity a cohabitative relationship?

There are certain factors that helps us to identity if you are in a cohabitative relationship or not. These factors include a sense of permanence, durability and stability in the relationship, as well as soft factors such loyalty, sympathy, affection and concern. One must also look at what needs are shared by the parties such as physical care, financial support and participating in the running of the common home.

What are the legal consequences?

Unfortunately, South African courts do not recognise cohabitation as a legal relationship. However, a cohabitation agreement may be the solution to creating a legal relationship between the parties. This type of agreement regulates the legal rights and obligations should the relationship come to an end. This agreement does not place the parties on the same playing field as a marriage or a civil union.

Under the Domestic Violence Act, cohabitation is recognised as an applicable relationship for the purposes of seeking protection from an abusive partner.
 In terms of the Medical Schemes Act, you can add a dependant to your medical aid that is considered your ‘partner’, despite not being formally married to same.

In terms of the Income Tax Act, cohabitants are viewed in the same light as a spouse when it comes to their taxation.

When it comes to life-insurance policies, the partners in terms of a cohabitation relationship may name each other as a beneficiary.

In terms of the Compensation for Occupational Diseases Act, if one partner dies due to injuries sustained during the course of their employment during the time that the partners were living together as if they were “husband and wife” the surviving partner may claim for compensation in terms of such.

The cohabitation agreement itself

This is an agreement that the parties enter into, similar to an antenuptial contract, that stipulates the obligations between the parties during their cohabitation. This agreement can regulate maintenance upon the termination of the cohabitation or upon the death of one of the partners.

Other aspects that this agreement can provide for is movable property, immovable property, financial arrangements and the support of any children born from the relationship. This contract will be valid once it has been ratified by a legal practitioner.
It is also vital for a cohabitating couple to ensure that they have a valid Will in place to ensure there are no unnecessary obstacles when it comes to losing the other partner.

As such, if circumstances exist where you and a partner live together as spouses but have elected not to get married for whatever reason it will always be worth your while to consult an attorney regarding the consequences of such a relationship to ensure that your legal interests are protected.

Prepared by Maxine Boyd

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