Cohabitation is currently on the rise in South Africa with many couples opting to live together in a permanent life partnership over entering into marriage. While the relationship may often look the same as marriage, South African law does not afford it the same legal recognition. There is also a common misconception that living together for an extended period of time creates a common law marriage with legal implications.

In terms of South African Law it is possible to enter into a marriage in terms of the Marriage Act 25 of 1961 or a civil partnership in terms of the Civil Union Act 17 of 2006. The legal consequences of a civil partnership is identical to that of a marriage and any reference to marriage in any other law includes that of a civil partnership. Both the Divorce Act 70 of 1979 and the Matrimonial Property Act 88 of 1984 apply to civil partnerships. To be afforded the full protection of the law one might consider entering into either of these. If you elect to cohabitate you must consider the fact that it is largely unrecognised and unregulated and can result in you being left unprotected by the law.

For the purposes of certain Acts, such as the Domestic Violence Act 116 of 1998, the Medical Schemes Act 131 of 1998, the Compensation for Occupational Injuries and Diseases Act 130 of 1993, the Income Tax Act 58 of 1962 and the Estate Duty Act 45 of 1955, cohabitation is recognised as a relationship with legal implications. Unfortunately, the recognition stops here and persons in a cohabitation relationship can find themselves in a prejudicial situation simply because they elected not to be married.

So what are some of the problematic implications of a cohabitation relationship?

•    If one partner passes away without a will, the other partner will be unable to inherit in terms of the Intestate Succession Act and the deceased partner’s estate will devolve to their nearest blood relatives. Furthermore, the surviving partner will not be entitled to claim in terms of the Maintenance of Surviving Spouses Act, even if they were dependent on the deceased partner throughout their relationship.
•    There is no duty to maintain one another, thus at the termination of the relationship, neither party will be entitled to maintenance from the other.
•    Whatever you purchase remains your own - but this gets tricky if you have purchased furniture and household items together. It can be difficult to determine who owns what and you would be required to prove your ownership if you claim an item is yours.
•    If one partner is a homeowner and the other moves in with them, at the termination of the relationship the homeowner will be entitled to evict the other partner and will also be entitled to sell the property without notifying the other partner. In effect, the other partner can end up without a home.

Your choice to be unmarried does not have to mean that you are unprotected by the law. It is possible to enter into a cohabitation agreement where you determine how to regulate various aspects of your relationship by setting out the rights and obligations of each party and also what will happen upon termination of the relationship. The law does not prescribe what to include which means the agreement can be tailored to your needs and ideals. This agreement is binding between the two parties but not binding on third parties. Entering into a cohabitation agreement can provide certainty and clarity regarding your affairs and legal protection where previously there was none.

If you are interested in entering into a cohabitation agreement it is in your best interest to consult an attorney to ensure that your agreement is tailor made.