Cohabitation / Life Partnership Agreements Comprehensive Cohabitation Contract Service.
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Drafting ServiceAs society evolves, people are increasingly choosing alternative forms of relationships. While traditional marriage remains popular, cohabitation is becoming more widespread. However, cohabiting couples must understand the legal implications of their decision, particularly regarding financial obligations and property ownership.
Cohabitation is when a couple lives together without being legally married to each other. In South Africa, this type of relationship is not legally recognised, unlike marriage, which is governed by specific laws that protect the parties involved. Many believe that being in a long-term relationship means being in a "common-law marriage," but this is a misconception.
Unmarried couples who live together do not have the same legal rights as those who are legally married. While cohabiting couples may not enjoy the same rights as married couples, South African courts have occasionally recognised the existence of a universal partnership between cohabitants.
A universal partnership allows for the sharing of property obtained before and during the relationship, similar to a marriage in community of property. However, it can be challenging to prove the existence of a universal partnership, and specific requirements must be met. To protect both partners' legal rights, it is recommended that they sign a cohabitation agreement.
This legally binding document outlines the couple's rights, obligations, and living arrangements, including property ownership, living expenses, and maintenance. A valid will is also essential, as cohabiting partners have no automatic right to inherit from each other, nor do they have the right to spousal maintenance if one partner dies. At Louwrens Koen Attorneys (Cohabitation Drafting Service), we understand the complexities of cohabitation agreements and wills.
We provide expert legal advice to protect cohabiting couples' rights.
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Louwrens Koen Attorneys have already assisted thousands of couples with their Antenuptial Contract registration needs. We pride ourselves in being approachable. Do not hesitate to contact us with your questions.
The cohabitation agreement sets out who owns what and in what proportion in the relationship and covers elements such as the following:
Many couples are under the assumption that, if they are living together but unmarried or not in a civil partnership, then ‘common law marriage’ protects them in the same way as married couples. However, no such law exists. Couples who live together do not have the same legal rights as married couples or those in a civil partnership, so this assumption is a myth.
A cohabitation agreement can provide peace of mind in your relationship. By coming to an agreement before or whilst you are living together, you will: have a clear understanding of what your financial commitments are avoid misunderstandings regarding your rights and responsibilities as you continue to live together, in particular with regards to ownership of property avoid difficulties and disagreements if you split up have clear evidence of your intentions should you have to go to court
It can protect either or both of you in the event of a relationship breakdown. It can operate in a similar way to a prenuptial agreement by making it clear how the pre-owned assets of one partner are to be shared with the other if you should break up in the future or if the property is owned in the sole name of one party and another party moves in. It can make it clear for both partners that contributions towards utility bills by one partner may not entitle them to a share of the property itself if you should break up.
A cohabitation agreement is a legal document, enforceable by the court if it is properly executed and providing you have both been honest about your finances and each obtained separate legal advice upon its terms.
If you’re worried about what will happen if you or your partner dies while you are cohabiting, it’s important that you outline your wishes in your cohabitation agreement and also seek advice about a will.
Please complete the form as thoroughly as possible. Do not hesitate to contact with us should you have any questions.
Cohabitation is a living arrangement where two individuals are in a romantic or sexual relationship but are not married. Unlike marriage or civil union, cohabitation does not provide the same rights and obligations to the partners. In South Africa, cohabitation is not recognised as a valid common-law marriage, regardless of how long the couple has lived together.
The lack of legal recognition for cohabitation leaves cohabitants without protection under laws like the Intestate Succession Act, 81 of 1987 or the Maintenance of Surviving Spouses Act, 27 of 1990. There is also no legal obligation for cohabitants to provide for each other. This means cohabitants are not on equal footing with married or civil union partners. However, some legislation recognises cohabitation as equivalent to marriage or civil union, including the Domestic Violence Act, 116 of 1998, Medical Schemes Act, 131 of 1998, Income Tax Act, 58 of 1962, and Estate Duty Act, 45 of 1955. Cohabitants can also name each other as beneficiaries in a life insurance policy.
Whether married or unmarried, parents have the same obligation to maintain their children, and custody decisions are based on the child's best interests. Cohabitants are advised to enter cohabitation contracts, similar to antenuptial contracts, which regulate the responsibilities of each partner and the consequences of terminating the relationship. The contents of a cohabitation contract depend on the parties' needs and can include any legal provisions that are not against public policy.
If there is no cohabitation contract or valid will, it is difficult for either party to claim maintenance during or after the termination of the relationship. However, a universal partnership may sometimes provide some legal protection if both parties have contributed to the partnership. In the event of one partner's death, cohabitants have no right to intestate succession, regardless of the length of the relationship. If a valid will does not name the surviving partner as a beneficiary, they must prove their contribution to the joint estate to receive any entitlement.
In South African law, cohabitation is not a legally recognised relationship. Despite the common misconception that cohabiting for a certain period leads to a "common-law marriage," no legal concept or implication is associated with this idea. Although cohabiting partners have some rights and recourse, enforcing them can be difficult due to the lack of legislation or case law specifically addressing cohabitation relationships.
Several issues may arise from cohabitation, including questions about property rights, estate inheritance, maintenance claims, and applicable ancillary legislation. Due to the limited statutory regulation of cohabitation, alternative mechanisms have been implemented to address some of these issues. This underscores the challenges those in cohabitation relationships face in South African law.