Living together as a couple - no legal protection

In terms of South African law, cohabitation does not carry the protection afforded to a marriage and the parties to such a living arrangement are not regarded as spouses.

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Couples living together often refer to themselves as being “common law spouses”. In terms of South African law, cohabitation does not carry the protection afforded to a marriage and the parties to such a living arrangement are not regarded as spouses, irrespective of the duration of their living arrangement.

Don’t have a cohabitation agreement?

When the couple’s relationship comes to and end or one partner dies, the other partner will only be entitled to retain the property which he/she has purchased and owns. Where the partners have purchased property together, they will only be entitled to claim their share in the property (on a proportional basis). Parties therefore should preferably keep detailed records and proof of payments made (receipts, invoices etcetera).

No automatic right to inherit

As stated before, the cohabiting partner is not regarded as a surviving spouse and under the laws of intestate succession, will have no corresponding rights to the deceased estate their partner.

In South Africa, freedom of testation prevails and a testator has the freedom to choose how his/her estate will devolve upon his/her death. If a testator has not specifically included the cohabiting partner in his/her will, the partner will not be entitled to inherit even if a written cohabitation agreement stipulates such inheritance.

Maintenance and child support claims

When the domestic relationship ends, neither party will have a legal claim in respect of spousal maintenance against the other. The reciprocal duty to support only pertains to spouses who entered into a binding marriage.

When it comes to the maintenance of children, the marital status of the child’s parents are irrelevant. In terms of the Children’s Act, both parents are responsible for the maintenance of their children (up to the age of majority or until they are self-supporting).

Retirement fund / Pension fund interest

The only way to ensure that a domestic partner will receive any benefits from a retirement fund, will be to nominate that person as a beneficiary with the retirement fund. Even if domestic partners have entered into a (written) cohabitation agreement, specifying each other as beneficiaries to their respective retirement funds, it will not be binding on the Retirement Fund leaving them without a valid claim against the fund.

The Divorce Act, Pension Funds Act and Income Tax Act strictly governs the right to claim a share of a member spouse’s pension interest. As the domestic partners are not regarded as spouses, they will have no rights to claim a share of a pension fund interest when the domestic relationship ends.

Life Insurance

Domestic partners are free to nominate each other as beneficiaries on their respective life policies.

Leased property

The contents of the lease agreement will be determinative of whom will be liable to make the lease payments. For instance, where the lease agreement is signed by only one partner, the other partner will accordingly have no legal rights and responsibilities in terms thereof. It follows that this person will not be liable to pay rent.

Where both partners have signed a joint lease agreement, they will be jointly liable to make the rental payments. Common to joint lease agreements is that it addresses liability jointly and severally. This means that both parties may each be liable for the payment of the rent - even in the event of one partner indemnifying the other for the rental payments.

Registered property

Where the home is registered in one partner’s name, when the relationship ends, that partner has the right to evict the other partner from the property, even if they have contributed to the bond repayments.

Domestic Violence

The Domestic Violence Act is applicable to all domestic relationships. Successful application for a protection order can result in the registered bond holder / nominated tenant being prevented from entering the shared residence, but still responsible to make the respective payments.

Cohabitation agreement

Persons living together as a couple do not carry the same legal protection afforded to spouses in a marriage. At the very least, such couples need to consider entering into a written and signed Cohabitation Agreement.

Such an agreement should preferably be in writing and signed and could be concluded at any time during the relationship. Proving the contents of a verbal agreement becomes problematic and can lead to a he-said-she-said situation.

Cohabitation Agreements are only binding inter partes (the couple). In an effort to address the legal risks and vulnerabilities associated with cohabitation, domestic partners can address the future protection of each other by inter alia drafting valid wills and nominating their partners as beneficiaries with the respective institutions.

Take Note – the purpose of this article is to inform readers of the leal risks commonly associated with cohabitation and not to be regarded as a comprehensive legal discussion on this topic.

Witten by Tineke van Rooyen of TVR LAW situated at 1 Mimosa Street, Jeffreys Bay. Tineke can be contacted on 073 044 2155.

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My name is Tineke van Rooyen and I practice as an attorney in Jeffreys Bay, thereby servicing the greater Kouga District.

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