In today’s world, relationships are constantly evolving. More and more people are choosing to move away from traditional marriage, opting instead for cohabitation. Whatever the reason for embracing these new forms of relationships, it is crucial to understand the legal landscape, especially in South Africa. While cohabitation is often referred to as common-law marriage, it lacks the legal standing of marriage in South Africa.
It is easy to overlook the need for legal safeguards when everything feels secure in the moment. But when a relationship suddenly ends or, even more devastating, when a partner passes away, cohabiting partners can find themselves in a difficult position. Without a cohabitation agreement in place, there are no automatic legal rights. This means that, despite years of shared life and commitment, each partner is only entitled to what they brought into the relationship.
Take, for example, the case of a client who lived with her partner for 20 years, along with her daughter. During this time, she resigned from her job, as it was agreed she would receive money in lieu of a salary and rely on him for their livelihood. Despite having a cohabitation agreement in place, it was not enough to protect her in the event of his death. A valid will was needed to specify beneficiaries, and she was not listed as one. As a result, she had no claim to the funds after his passing. When the case was brought to court, she realized too late that the cohabitation agreement, while important, did not provide the financial protection she needed.
Or in the case of Sarah and Tom, who cohabited for 10 years and purchased a house together. The house was registered in Tom’s name only, as he had a better credit score. They did not have a cohabitation agreement. When they decided to separate, Sarah had no legal claim to the property, despite contributing to the mortgage and household expenses. Without a cohabitation agreement outlining joint property arrangements, Sarah had to go through a lengthy legal process to prove her financial contributions and claim her share of the property.
This highlights the importance of understanding what a cohabitation agreement is and why it is so crucial. A cohabitation agreement is more than just a formality; it is a vital tool that ensures both partners are legally protected. It provides clear guidelines for what happens if the relationship ends or, in the unfortunate event of a partner’s death.
The agreement can address key concerns, such as:
- What happens to joint assets and debts if the relationship dissolves
- How shared property and household responsibilities are managed
- Who is entitled to life insurance policies, pensions, or investments
- What happens if one partner passes away, ensuring the surviving partner is not left in legal limbo
It is essential however, to understand that simply having a cohabitation agreement does not automatically guarantee access to these benefits. For example, inheritance rights are not automatically granted through a cohabitation agreement alone. A valid will, explicitly naming the partner, is still necessary to ensure inheritance. While a cohabitation agreement is a critical tool, it cannot replace the need for other legal steps to ensure long-term security.
Without a cohabitation agreement, partners may face a difficult and emotionally draining battle if the relationship ends or if one partner dies. Without a legal framework, each individual may have to prove their contributions, often requiring extensive documentation, for example receipts or affidavits to claim any rights.
Our hope in sharing this information is to offer clarity on this often-overlooked aspect of cohabitation. Relationships are deeply personal and the way they are protected should reflect that.
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