Cohabitation and the Law
There is no legislation in South Africa that regulates domestic partnerships (cohabitation relationship) despite the fact that people have been living in domestic partnerships for centuries. The lack of recognition of domestic partnerships has to do with the fact that marriage is accepted as a cornerstone of society, a better environment for raising children and an integral social institution, while domestic partnerships are seen as a threat to the institution of marriage.
Today, about 60% of couples live together before a marriage, but this does not translate into a common-law marriage, regardless of how much time the couple lives together. “Census data and research have found that the trend of cohabiting without marriage is increasing. In the 1996 census, some 1.2-million people reported themselves as unmarried but living together; in the 2001 census, this number doubled to 2.4-million.”
A cohabitation relationship is generally constituted by two people living together as a couple, much like a marriage, without getting married. Cohabitation, also referred to as a common law marriage, living together or a domestic partnership, is not recognised as a legal relationship by South African law. There is, therefore, no law that regulates the rights of parties in a cohabitation relationship. In South Africa there is a myth that, if you are not married, but living with (cohabiting) your partner for a certain amount of time, it translates into a “common law marriage” by default.
The truth is: cohabitation or living together is not recognised as a de facto marital relationship, of any kind, in terms of South African law.
Unfortunately, cohabitation is a largely misunderstood concept in South African law, and very few people take the time to understand what they are getting into and this may lead to various problems in the long term. It is important for parties to understand what a cohabitation relationship is, and the implications associated therewith.
So, what is the solution?
Life partners or cohabiting partner, can enter into a contract. This is, in many ways, very similar to an antenuptial contract. This agreement is commonly referred to as a cohabitation agreement. It will contain regulations regarding finances during the existence of the cohabitation relationship and deal with the division of assets upon termination of the relationship. In addition, it also deals with other arrangements the parties may wish to include, provided its inclusion is not against public morals and good faith. Parties may even include a provision for the payment of maintenance.
It’s a good idea for couples to draft a written agreement, in which the rights and obligations of each party in the live-in relationship are clearly set out.
What we do have is a Domestic Partnership Bill, that was gazetted in January 2008, which is not yet law. However, and given that the Bill and has not made any great strides, there have been recent developments in case law in terms of which the South African Courts have recognised in that a universal partnership may exist between the parties.
Cohabitants who fail to draw up a cohabitation agreement, will have no automatic legal protection in terms of South African law. It is advise that parties avoid the risks, costs and potential trauma by entering into a cohabitation
Did you know? Universal partnerships are instances where there is an express or, more often than not, a tacit agreement between two unmarried parties who live together for an extended period of time. Usually, these parties share similar responsibilities, duties and obligations as married couples which often includes income, expenses and assets. The court in Pezzuto v Dreyer and Others 1992 (3) SA 379 (A) set out factors required for the existence of a universal partnership, namely that-Advertisement each partner should contribute to the partnership, including labour, skill or monetary contribution; the partnership is carried out for the joint benefit of the parties; the object of the partnership is profit; and the agreement is valid, although this has been dicounted for being a factor of all contracts (see Bester v Van Niekerk)
*The above does not constitute nor legalise an informal/cohabitation relationship. It is a partnership with a profit motive.
Did you know? The Domestic Partnerships Bill was drafted in 2008 to give partners equality and dignity, complying family law with the Constitution. The Draft Domestic Partnership Bill is a bill that will come into operation on a date fixed by the President by proclamation in the Gazette. It will aim to regulate registered and unregistered domestic partnerships in South Africa. The default position of the property regime will be out of community of property. In the definition section “contribution” includes “financial and non-financial contributions made directly or indirectly by the domestic partners”.