In South Africa cohabitation is not a recognised legal relationship.
Notwithstanding, there are legal consequences of cohabitation, and some legislation defines "spouse" in such a way that includes a partner in a cohabitating relationship, explains attorney Simon Dippenaar.
Cohabitation refers to a stable, monogamous relationship in which the couple, either male-female or same-sex, chooses not to marry but to live together as spouses. A cohabiting relationship looks to the observer exactly like a marriage. The only distinguishing feature is the lack of legal sanction.
Cohabitation generally has three universal components, namely a sexual relationship between the couple; they live in the same home; and it is a stable relationship. There may also be a requirement for a sense of responsibility for each other.
No such thing as common-law marriage
"Many people believe that if a couple cohabits for a long period of time, the same marital rights apply that spouses in a marriage enjoy - in other words that a ‘common-law’ marriage exists," says Dippenaar.
"This misconception exists in many jurisdictions, but there is no such thing as common-law marriage."
Despite the lack of legal status, the SA courts have, however, ruled that there may be an express or implied universal proper partnership in existence between a cohabiting couple. In a universal partnership, both parties agree to put their current and future property in common, which would resemble a marriage in community of property.
The aim of the partnership must be to make a profit. Both parties must contribute to the enterprise. The partnership must operate for the benefit of both parties and the contract between the parties must be legitimate.
Dippenaar explains that the universal partnership argument can be used to give both parties a share in all property acquired during and before the commencement of the relationship.
However, if a universal partnership cannot be proven, the private property owned by the couple prior to cohabitation belongs to the partners separately and there is no community of property. Property acquired before the relationship is also exempt from any consequences of the Insolvency Act.
Dippenaar suggests that it is much more sensible for a cohabiting couple to draw up a cohabitation agreement at the outset of the living arrangement. The contract will include details of a couple’s assets, property and the financial contributions each partner makes to the joint home. It is valid when ratified by an appointed lawyer.
"There are many other issues cohabiting couples must contend with, should they decide to call it a day. There will be a home and associated mortgage or tenancy and decisions to be made about what happens to it, with the accompanying financial consequences," says Dippenaar.
"There may be children of the union. There could be shared debts. There may be insurance policies with both partners as beneficiaries, or a shared vehicle. A cohabitation agreement can help to mitigate conflict when it comes to deciding how these matters will be resolved."
Having a valid will is another important consideration for a cohabiting couple, says Dippenaar.
Cohabiting partners have no automatic legal right to inherit from the other and no right to spousal maintenance on death.