Introduction
South African law does not recognise what is commonly known as ‘common law’ marriages. To enjoy the rights of legally recognised marriage, you need to have tied the knot legally and registered the marriage with the Department of Home Affairs (read more about the different types of marriages in this post). This leaves unmarried couples vulnerable as they do not have the same level of protection. However, they have the option of outlining who gets what in the event of death or a break-up by signing a cohabitation agreement.
A well-drafted cohabitation agreement could be used to document arrangements regarding finances, immovable property, moveable property acquired during the relationship, children, pets, debts, and general financial responsibilities towards each other during the relationship as well as should the relationship end. You can also use it to make it clear that you are cohabiting life partners and that you do not intend for there to be any community of property.
It is advisable that each partner make an inventory of their respective assets so that you have a record of who brought what assets into the common home. This can be attached as an annexure to the agreement. You should periodically update the inventory list and both partners should sign this as accurate.
You may want to state that each partner (1) retains ownership of any assets brought into the relationship including any inheritances that may be received, (2) remains responsible for their own debt including any incurred during the course of the relationship.
It is also a good idea to agree upfront how all future financial record-keeping will be managed during the relationship – in this way, you have documented proof of each partner’s expenditure.
Immovable property
Your cohabitation agreement should cover ownership of immoveable property (such as your home) – should it be left out, couples would have very little legal recourse should the relationship end. For example, if the primary residence is owned by one partner but the other partner contributes towards bond repayments, renovations and general home maintenance, if the relationship ends, the non-owner may feel that due to their financial contributions, they are entitled to a share of the property. However, if there is no written agreement, they will have very little legal recourse.
A cohabitation agreement could deal with the rights of the partner who does not own the property but who contributes to its costs. The couple may agree that the contributing partner will be paid a lump sum equivalent to the amount that they have contributed during the relationship, adjusted for inflation should the relationship end.
It would also be a good idea to include a clause in the cohabitation agreement allowing the contributing partner a specified period to find alternate accommodation should the relationship end – as the partner who owns the property does have the right to evict the other partner immediately.
Money management
It is natural to buy goods (like furniture, appliances, art, jewellery and household items) while you are living together. Your cohabitation agreement should deal with (1) the ownership of these items, and for a record to be kept of who bought what, and (2) what will happen to these jointly-owned assets should you break up.
Protecting the stay-at-home spouse
A stay-at-home parent could be left vulnerable if the relationship ends as there will be no income, and no way for them to invest and create their own wealth.
If one partner stays at home to raise children while the other partner works to earn an income, the cohabitation agreement should deal with how the working partner’s invested assets should be split if the couple breaks up.
A cohabitating partner cannot claim a share of the other partner’s pension interest as this is a right reserved for legally married couples only. So even if your cohabitation agreement promises a share of pension interest, it cannot be enforced on a pension fund.
No duty of support
There is no legal duty of maintenance or support between cohabitating couples as the relationship is not legally recognised. If the relationship comes to an end, the financially dependent partner thus has no legal right to claim maintenance from the other partner – in terms of the Maintenance of Surviving Spouses Act, this right is only available to legally married couples.
So especially if the one partner is a stay-at-home parent, it is advisable to provide for maintenance in the cohabitation agreement. Of course, if one partner agrees to pay maintenance, this will tie the partners to each other even after they split – in this case, it may be better to agree to a lump sum payment instead.
Child maintenance & support and pets
Child maintenance does not need to be dealt with in a cohabitation agreement as it is a parent’s legal duty to provide maintenance for their children regardless of marital status.
However, if you have pets, it is a good idea to document what will happen to them should the relationship come to an end.
Covering all eventualities
Even though a cohabitation agreement sets out the consequences should your relationship come to an end, it should also deal with other eventualities – the death of a partner, illness and/or disability, unemployment, job relocation, and inheritance, for example.
If you would like to provide for the other should one of you pass away, your cohabitation agreement could outline this by way of each partner holding life cover for this purpose.
You should also consider expressing your wishes upon your death for providing for your partner and children in the form of a will (see the blog on Wills and Testaments). Furthermore, ensure life insurance polices and retirement funds (pension, provident and pension funds) specifically state the beneficiaries of such policies and funds so the trustees and administrators know what your wishes are.
If one partner is unable to work due to illness and/or disability, the financial burden would fall on the other partner. In your cohabitation agreement, it would be advisable to deal with this by ensuring that each partner takes our income protection or disability cover to sufficiently cover such risk.
Even if you and your partner are already living together, it is not too late to draft a cohabitation agreement.
If either partner’s personal circumstances change, it is important to update your agreement so that it is always a clear representation of your current needs.
The aim of this agreement is to ensure that should your relationship come to an end, you avoid litigation, and that each partner clearly understands their rights.
Note: It appears though that the wheels of justice are turning albeit slowly. About one year ago, the Bwanya case made its way to the Constitutional Court who found that parts of the Maintenance of Surviving Spouses Act was unconstitutional. It stated that (1) a partner/life partner must be included in the definition of a spouse, and (2) “permanent life partnerships are a legitimate family structure in South Africa”.
Have questions or insights about cohabitation agreements? Share your thoughts in the comments below – we'd love to hear from you!
To view a short-form infographic on Drafting a Cohabitation Agreement that acts as a quick reference guide, click on the image below.
The information provided is for information purposes and does not constitute legal advice. Contact a lawyer should you require assistance. Legal Dynamix is not a law firm and does not provide legal advice on the subject matter contained herein.
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