COHABITATION AGREEMENT
Unlike marriage, which is regulated by specific laws that protect the parties to the relationship, cohabitation is not a relationship that is protected in the same way. Cohabitation, or what some like to refer to as a common law marriage where couples live together in a domestic partnership, is not recognised as a legal relationship by South African law. Without being validly married, couples living together do not have the duties nor the rights that married couples have. This is the case irrespective of the duration of the relationship.
WHAT IS A COHABITATION AGREEMENT?
Life partners (regardless of their sex) are permitted to enter into a contract similar to an antenuptial contract that regulates their respective obligations during the subsistence of their union and the (patrimonial) consequences of the termination thereof. Such agreements are sometimes referred to as cohabitation contracts or domestic partnership agreements.
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It’s becoming more common for partners in a cohabitation relationship to draw up a contract. Such an agreement will usually contain regulations regarding finances during the existence of the cohabitation relationship and deal with the division of property, goods and 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. In most cases, a court will enforce the agreement. 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, which is extremely difficult to prove, as there are strict requirements to be met.
The contents and nature of a cohabitation agreement will depend on the needs 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.