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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