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Cohabitation Agreements

Definition: Cohabitation Agreements- which may also be referred to as a domestic partnership, life partnership, living together, concubinage and common-law marriage - can be described as living in a domestic partnership that is not recognised as a legal relationship by South African law. 

There is no law that regulates the rights of parties in a cohabitation relationship, as it generally refers to partners who live together without being validly married to each other. In the past, these types of relationships were called 'extramarital cohabitation'.

Since the law does not recognise cohabitation relationships as a marriage, the rights and duties that marriage confers do not apply, irrespective of the duration of the relationship.  

Contrary to popular belief, living with your partner for a certain amount of years does not mean that you will obtain certain benefits under a common law marriage.

The purpose of cohabitation agreements

It is common for partners in cohabitation relationships to enter into a contractual cohabitation agreement, similar to antenuptial contracts. These contracts regulate their respective obligations during the subsistence of their relationship, as well as the consequences of the termination thereof.

These agreements may include the division of property, goods and assets upon the termination of the relationship. It may also express the provision for the payment of maintenance upon termination.

If one partner refuses to follow the agreement, the other partner may approach a court for assistance. In most cases, a court will enforce the agreement.

What happens when cohabitants don't draw up a cohabitation agreement?

If cohabitants fail to draw up a cohabitation agreement or contract, they will have no legal protection, unless they can prove that they are in a universal partnership.

The contents - and nature - of cohabitation agreements depend on the requirements of the parties. The parties may include any provision in the agreement that is not illegal, against the morals of society or contrary to public policy.

Making a claim when the relationship ends

There is no enforceable right to claim maintenance - either during or upon termination by death or otherwise - of the relationship, unless maintenance is regulated in a cohabitation agreement. This means that a cohabitant cannot claim damages in the event of the unlawful death of a partner.

Cohabitants cannot reclaim monies that they spent on maintaining their partner during the relationship, unless they sue for unjust enrichment. Similarly, donations made between partners in a cohabitation relationship cannot be claimed back by the donor.

There is also no law that allows for a person's pension assets to be transferred in a cohabitation partnership. A cohabitation agreement will have no effect either, as it would not be enforceable against the pension fund. 

Van Deventer and Van Deventer Incorporated

If you require legal assistance with regards to a cohabitation relationship / cohabitation agreement, contact our attorneys at Van Deventer and Van Deventer Incorporated. We provide expert legal advice and services that are affordable and convenient.