COHABITATION AGREEMENTS

Cohabitation agreements

Cohabitation refers to people living together without being married, regardless of their gender, and is a choice that people are increasingly making. However, cohabitation does not offer the same protection that laws pertaining to marriage do. Cohabitants do not have a right to claim maintenance from one another, including upon the death of either partner. In addition, if one of the partners in the relationship dies without leaving a valid Will, the other partner cannot inherit as they would be able to do if they were married.

The cohabitation agreement

It is therefore advisable to enter into a cohabitation agreement that regulates the partnership during its existence, as well as when the union comes to an end. A cohabitation agreement is similar to an antenuptial agreement and will vary, depending on the nature of the relationship and its requirements. There will usually be provisions regarding finances, and the division of property when the relationship ends.

If you are unmarried and living together, or planning to live together, we can customise an agreement for you in accordance with your particular living circumstances, so that you will be protected if your relationship breaks down or one of the parties dies.

frequently asked questions

In South Africa, cohabitation is not recognised as a legal relationship, regardless of how long you have lived together. The parties therefore do not have the same rights as spouses do who are legally married.

  • There is no right to claim maintenance during the relationship or upon the death of a partner, since there is no reciprocal duty of support. Maintenance would have to be stipulated in a cohabitation agreement.
  • In the case of the unlawful death of a partner there is no action for cohabitants to claim damages.
  • Donations made to the other, cannot be claimed back, nor money that was spent on the other partner during the relationship. An exception would be if a case could be made for unjustified enrichment.
  • Unless there is a cohabitation agreement or universal partnership, there is no community of property for cohabitants, with property acquired before living together belonging to the person that acquired it. The laws of contract, property law and unjustified enrichment could be applied when partners living together seek to assert their right to property.
  • If one of the partners in a domestic partnership dies intestate (without a Will), the surviving partner does not have an automatic right to inherit or to be a dependant.
  • If there is a Will and the surviving partner is not specifically mentioned in it, they will have to prove that they contributed to the joint estate in order to benefit.

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