A growing number of people are now choosing to live together in permanent relationships ( cohabiting) and are choosing not to get married for a number of personal or legal reasons. The result of this is that although there is no marriage, financial inter dependencies are created between the parties but without the legal protections afforded by a contract of marriage. This may well leave one or both parties in an extremely difficult financial position should the relationship come to an end either by separation or by the death of one of the parties.
But surely a common law marriage would exist and this would then protect us?
There is no such thing as a common law marriage in South Africa. This means that the notion of having lived together for a long period of time and having developed financial dependency on each other does not automatically afford any of the parties any form of legal rights and/or entitlements flowing from such relationship. It is therefore logical to conclude that cohabitants need to be a lot more careful in the planning of their relationships especially insofar as financial implications are concerned.
As the law has developed over the years, certain limited protections in the form of specific legislative provisions and case law pertaining to specific situations have been afforded to cohabitees, however, there are still too many “gaps” that people can fall into.
Should a cohabitation relationship have existed and a party thereto seeks to claim a benefit allegedly flowing from it, the party concerned would need to apply to the High Court for an order declaring that a “universal partnership” existed between the parties and that by virtue of such universal partnership, the party concerned is entitled to such benefit. This process can prove to be extremely costly and time-consuming and there is no guarantee of success.
The best solution available to cohabitees to ensure that they are able to effectively determine the financial implications of their relationship is to enter into a cohabitation agreement. There is even an option to either have the agreement made an order of court or notarised and registered in the Deeds Office to secure its enforceability.
In preparing cohabitation agreements for our clients, we ensure that all of the financial aspects of the relationship are addressed and covered in adequate detail so as to provide clear stipulations for what needs to happen in the event that the relationship should come to an end.
Contact us if you need a cohabitation agreement.