Domestic Partnerships aren't legal without a Cohabitation Agreement | Legal Articles


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Domestic Partnerships aren't legal without a Cohabitation Agreement

In the past, a life partnership was only acknowledged as either being married or not.

Today however, a long-term relationship can include marriage or simply cohabiting – each having their own merits, challenges, and dynamics.

You need a Cohabitation Agreement in South Africa

With fewer couples opting to marry, the popularity of domestic partnerships/life partnerships or cohabitation agreements in South Africa is growing.

Between the 1996 census and 2001 census the amount of people willing to live in a domestic partnership virtually doubled from 1,3 million to 2.4million.

With the popularity of domestic partnerships growing in South Africa, it’s important to iron out a few false beliefs regarding their legality.

Your Domestic Partnership is not legal

Many people believe that a relationship is recognised by the South African Government as a common-law marriage if the couple have cohabited in a committed partnership for a certain period.

However, this is not the case, since the concept of common-law marriage was abolished worldwide, domestic partnerships in South Africa are not automatically recognised by law.

This is very important to understand as couples in domestic partnerships are not afforded the legal rights, duties and protection of an agreement in law should they wish to separate. 

South African Marriage Law

Marriage law in South Africa governs the share of property accumulated by the parties during the marriage and the share thereof on dissolution, either by divorce or death, and entitles the parties to share membership of medical aid funds and pension funds.

Additionally, married spouses have a financial obligation to support their partners under the common law.

In some instances, it has been found that an unmarried couple coexisted in an express or implied universal partnership and the parties were able to prove their commitment, protection and a share of assets. However, universal partnerships are often extremely difficult to prove.

The only way to ensure protection under the law for a life partnership is to enter into a cohabitation agreement. This agreement clarifies the financial and assigned responsibilities of both partners and is a safety net to both partners if the relationship is for some reason dissolved in the future. 

This agreement specifies the dissolution of the combined assets should the couple separate.  It is not enforceable by third parties.

Universal Partnerships, Child Custody and Assets

What about children born out of wedlock in a universal partnership?

In terms of the Children’s Act (2005), both parents have a responsibility to maintain their children, irrespective of the child's living arrangements.

The cohabitation agreement, much like an antenuptial contract entered into prior to marriage, defines the responsibilities at the dissolution of the marriage.

  • It defines the roles and responsibilities of both partners,
  • how each partner will contribute to the family home,
  • and clarifies the nature of ownership of assets and the home they purchased as a couple,
  • and how these assets will be fairly split between both parties if they separate.

If no cohabitation agreement exists, partners would only be entitled to the assets that are owned in their own name, and the portion of the property that they invested in if it can be proven that they contributed toward that asset.

Cohabitation Agreement & The Domestic Partnerships Bill

The Domestic Partnerships Bill ensures that couples in a cohabitation agreement are afforded the protection of a legitimized relationship.

By entering into a written cohabitation contract at the onset of the relationship, couples ensure that any uncertainty with regards to their assets is specified, and in the event of death or a split, they can enforce their rights and obligations.

With shared ownership of property, the cohabitation contract should stipulate what happens to the assets including the family home.

  • Will the one partner buy out the other partner’s share of the home?
  • In the event of death will the living partner take ownership of all existing property and assets?
  • At the end of the relationship will the property be fairly divided between the partners?

Additionally, recording any relationship in writing is useful when including the partner as a beneficiary to the shared medical aid or in the event of death.

Such living partners have a bona-fide claim to the estate of the deceased partner as the contract will enforce the legitimacy of the partnership and said partners shall be taken care of financially by the estate of the deceased partner.

Having a shared Bank Account

When planning to live together or get married, opening up a joint bank account may seem like a good idea, but it is not advised.

Financial experts believe that individual bank accounts enable holders to build up their own credit ratings and financial wealth. Therefore, ensuring either party is self-reliant should the relationship end at any time in the future. This will also ensure the one partner is not at risk should the relationship end in the event of death or a break-up or if the parties encounter financial difficulties.

A joint account is not a bank account in the name of both parties, it’s an account in the name of one partner with the other partner having signatory rights. The greatest risk to the signatory is the fact that this party does not have their own bank account and credit record which leads to complications when applying for credit at shops, opening up cell phone contracts or if this partner hopes to apply for vehicle finance or a bank loan.

Furthermore, if the relationship ends, the account holder could simply empty the account and leave the remaining partner without any funds. If the partner dies, their bank account is frozen, and the living partner who is a signatory on the bank account will not be able to access the funds for a very long time.

It’s advised that couples split their monthly expenses or open an account for the household expenditure which both partners contribute a portion of their income toward maintaining.

Cohabitation Agreements and your Pension Fund

The pension is another benefit which needs to be clarified. There are two types of pensions payable to spouses.

Firstly, pensions payable to a party who qualifies as a spouse, this is dependent on how each pension fund defines an eligible spouse or partner. One should clarify the fund’s rules to ensure their partner or spouse qualifies for this benefit.

The fund may stipulate that the partner should be married to the same spouse at the date of retirement and date of death for the surviving spouse to benefit from their pension. This clause prevents death bed marriages, where the pensioner marries a younger partner and the fund is held liable for the payment of pensions to the surviving younger spouse for many years to come.

The second type of pension fund entails a share of fund credit and a multiple of a salary payout, for example 3 times the insured person's annual salary, which is allocated by the pension fund trustees to dependents and nominees of the deceased spouses’ pension according to the pension holders nomination form.

A spouse is defined by the Pension Funds Act as a person who is the permanent life partner or spouse or civil union partner of a fund member in accordance with the Marriage Act, Recognition of Customary Marriages Act, Civil Union Act or the doctrine of religion. This is a very broad definition for a spouse. But one should be clear to nominate their partner on the correct beneficiary nomination form, to ensure that no partner is overlooked.

Trustees are not strictly bound to follow that nomination, but when money and death are involved fund trustees are contested regularly. 

Van Deventer and Van Deventer Inc. – Marriage Contracts, Antenuptial Contracts and Cohabitation Agreements South Africa

Our attorneys would be happy to help you plan for your married or unmarried life together with your partner. Please feel free to contact our attorneys in Johannesburg for expert advice and assistance with your antenuptial contract or cohabitation agreement.

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