Cohabitation: The Perils and Pitfalls

The term “Cohabitation” or entering into a domestic partnership refers to the living arrangements of partners who are unmarried, who live together in one household in an emotionally intimate relationship which is intended to be permanent. People may live together for a number of reasons; it could be financial, where money saving is the motive; it could also be for convenience. Critically though, cohabitation, which is sometimes called a “de facto marriage” or “common law marriage”, is becoming more and more of a substitute for a conventional marriage.

 

Illustration

 

John and Jane have been living together for a few years. “Why get married when we are already in a normal, loving relationship? In any case, we are as good as married.” This illustration seems to show that in respect of costs and convenience, cohabitation is better than marriage. This is not necessarily true from a legal point of view.

 

A recent Case . . .

 

The Supreme Court of Appeal in McDonald v Young 2012 (3) SA 1 (SCA) ruled that those who live together, without a marriage and written contract cannot rely on the duties and rights of a married couple in the event of a dispute. While legally, cohabitants do not have the same rights as partners in a marriage or a civil union, the South African courts have on occasion come to the assistance of couples by deciding that an express or implied universal partnership exists between them.

 

Legal Position in South Africa

 

The legal position in South Africa in respect of cohabitation is that there is indeed no legislative protection available to parties in a cohabitant household. The Domestic Partnership Bill 2008 is still only in draft form. The abovementioned illustration of John and Jane has a fundamental caveat: persons living together do not have the same rights as married persons. Cohabitation is not recognized as a legal relationship in South African law. There is, therefore, no law that regulates the rights of parties in a cohabitation relationship. This is irrespective of the length of time a cohabitant couple has been living together.

 

Legislation

 

While marriage offers specific laws that will regulate the relationships, cohabitation offers none of the sort. Cohabitants are unable to rely on inheritance laws in terms of the Intestate Succession Act if a cohabitant dies without leaving a Will. Furthermore, they are unable to rely on the Maintenance of Surviving Spouses Act to secure maintenance on the death of a partner. In addition to this, South African banks do not allow for the opening of joint bank accounts.

 

 

Possible Remedies?

 

This however, does not mean that persons who choose not to get married are without remedy. There are options available to protect the rights of the cohabitants and determine the consequences if the relationship comes to a halt. In cases where the relationship breaks down and the parties had decided to pool their resources for the achievement of a common purpose, the court may award a share of the assets acquired during the relationship to each party if the existence of a universal partnership can be proved.[1] In such instance, certain requirements must be satisfied:

 

  • Each party must contribute to the enterprise of the household;
  • The partnership must benefit each party;
  • The aim of the partnership must be to make a profit and there must be a legitimate purpose.[2]

 

 

Conclusion – A Trend Beats the Caution?

 

Cohabitation in South Africa has become more common over the past 10 years and since then, the number of cohabitants increases by almost 100 per cent each year.

 

Cohabitating partners can also choose to have a cohabitation agreement executed in which their respective rights and obligations are stipulated. This allows for upfront discussion of concerns and issues and provides valuable certainty with regard to the consequences of the relationship. However, the document is not binding on third parties and if the relationship does not work out, a division of these joint households will often require expensive litigation, depending on how well the agreements have been drafted.

By Mokgatle R Mokgatle


[1] Ponelat v Schrepfer 2012 (1) SA 206 (SCA)

[2] Pezzuto v Dreyer and Others 1992 (3) SA 379 (A)

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