Cohabitation in South Africa

Cohabitation is an arrangement where two people are not married but live together. They are often involved in a romantic or sexually intimate relationship. Their partnership does not have the same rights and duties as a marriage or a civil union.
In South Africa, no matter how long a couple may live together, the law does not recognise common law marriages as being valid. Their cohabitation does not carry the same weight as a civil union.
Often, cohabitation partners believe that if they have been together for a certain amount of time, a common law marriage comes into existence whereby they will obtain certain benefits. This is incorrect. In South Africa, cohabitation has become more common over the last few years and the number of cohabitants increases by almost 100 per cent each year.
Cohabitation and legislation
Unlike a marriage or a civil union, which is structured by laws that protect each party in the relationship, cohabitation offers no such comfort. If a cohabitant dies without a valid will, their partner has no right to inherit under the Intestate Succession Act, 81 of 1987.
A cohabitant cannot depend on the provisions of the Maintenance of Surviving Spouses Act, 27 of 1990, to secure maintenance on the death of a partner. Furthermore, there is no responsibility on cohabitants to maintain each other and they have no enforceable right to claim maintenance.
The law as it stands is unsatisfactory, simply because it does not place cohabitants on the same footing as partners in a marriage or a civil union.
Although common law marriages do not have the equal rights as partners in a marriage or a civil union, there is some legislation that does consider living together and a marriage or a civil union on equal levels:
• Cohabitation is recognised under the Domestic Violence Act, 116 of 1998.
• The Medical Schemes Act, 131 of 1998, defines a dependant to include a ‘partner’.
• In terms of the Income Tax Act, 58 of 1962, and the Estate Duty Act, 45 of 1955, cohabitants are treated as spouses for the purposes of tax legislation, and the word ‘spouse’ is defined to include a permanent same-sex or heterosexual relationship.
• Couples in a cohabitation relationship may name the other as a beneficiary in a life-insurance policy. The nomination, however, must be clear, because a clause in an insurance policy that confers benefits on members of the insured’s ‘family’ may cause complications.
• The law does not distinguish between married and unmarried parents regarding the obligation to maintain children. Decisions regarding care and contact are based on what is in the best interests of the child.
Cohabitation arrangements
Cohabitants are advised to enter into a contract similar to an antenuptial contract (“ANC”) that regulates their respective responsibilities during the subsistence of their relationship and the inheritable consequences of the termination thereof.
These contracts are known as cohabitation contracts or domestic partnership agreements. Such agreements will normally contain regulations concerning funds or assets during the existence of the cohabitation relationship and deal with the assets upon its termination.
Parties may even include an express provision for the payment of maintenance upon termination. If one partner refuses to follow the agreement, the other partner can approach a court for assistance. Cohabitants who fail to draw up a cohabitation agreement or contract will have no legal protection unless they can prove the existence of a universal partnership.
The contents of a cohabitation agreement will depend on the needs of the parties.
The parties may include any provision in the agreement, provided that it is not illegal, against the morals of society or contrary to public policy.
End of the cohabitant’s relationship
Claiming back
If there is no contract or a valid will between the involved parties, it will make it difficult for parties to claim maintenance either during or upon termination by death or otherwise of the relationship. Unless they can prove a universal partnership existed.
The requirements for a universal partnership are as follows:
• that each of the partners contribute something to the partnership, whether it be financially, physically, time, energy, or skill;
• that the partnership should be carried on for the joint benefit of the parties; and
• the object is for each party to be enriched by the partnership.
According to Maya Narsai Makan of Alan Levy Attorneys, the best way to regulate a universal partnership is for the parties to agree, in writing or otherwise, how to distribute all assets between them in the event the relationship dissolves. This does not necessarily mean that each party will keep what each brought into the relationship, and there exists the potential for your partner to share in the assets that have accumulated during the course of their relationship.
Universal partnerships can be concluded by tacit agreement, verbally and/or in writing between the involved parties.
Cohabitation and death
There is no right of intestate succession (when someone dies without a will) between cohabitants, no matter how long they have lived together. A partner is not automatically regarded as a beneficiary or dependant. The rules of intestate succession as set out in the Intestate Succession Act are clear. In the event of there being no valid will, the beneficiaries are, in the first instance, a spouse or children or both. If there is no spouse or children, the estate devolves upon other more distant members of the bloodline.
If the surviving partner is not named in the valid will, he or she will be faced with the monstrous task of having to prove his or her specific contribution to the joint estate before entitlement will be forthcoming. Proving actual contribution is often extremely difficult, especially when a partner has passed on. Litigation is usually lengthy, costly, and unwelcome, particularly at a time already fraught with emotional trauma. This problem is intensified if the deceased had not divorced a former spouse. In law, the first spouse clearly has the power to proceed and claim the entire estate.
There is no complication in making specific provision for a cohabitant in a valid will. A person is entitled to leave his/her estate to a cohabitant even to the exclusion of his/her lawful spouse.
Author: Shaylene Moodley