There is a misconception amongst many South Africans, that if two people who are in a relationship reside together for a certain period of time, they are automatically deemed to be married “in the eyes of the law”, even without having formally entered into a civil marriage. This is referred to as a “common law” marriage, and whilst it is applicable in many legal systems around the world, it is not a recognised form of marriage in South Africa.
South African legislation provides for various types of marriages, including those recognised under the Marriage Act 25 of 1961, Civil Union Act 17 of 2006, and the Recognition of Customary Marriages Act 120 of 1998. However, the aforesaid sets of legislation do not incorporate the recognition of common law marriages as described herein above.
This misconception can lead to various implications for parties, including an incorrect assumption that they enjoy the same protection and legal benefits as parties who have entered into a civil marriage.
We understand that for various reasons, some partners do not wish to formally enter into a civil marriage; however, in such instances, it is important for them to understand the options available to them to still allow for the protection of their interests. Where couples do not necessarily wish to enter into a formal marriage but, wish to ensure that their interests are protected, an alternative consideration could be to enter into a cohabitation agreement, details of which are described herein below.
What is a Cohabitation Agreement?
A cohabitation agreement is a legal contract entered into between parties who are in a relationship, and who intend to, or already live together in a cohabiting relationship, but who do not wish to enter into a civil marriage. A cohabitation agreement outlines the rights, responsibilities, and obligations of each partner during the course of the relationship, and also sets out the rights of each party in the event of a separation. The main purpose of a cohabitation agreement is to address financial and property related matters, and serves to protect the interests of both partners.
COMMON ELEMENTS THAT MAY BE INCLUDED IN A COHABITATION AGREEMENT:
The cohabitation agreement could specify which assets and/or property is individually owned by each partner, and which are jointly owned. In the event of joint ownership, it could also clarify how the property jointly acquired during the relationship will be divided between the parties in the event of a separation.
Cohabitants could outline how they will handle financial matters during the course of the relationship, such as the sharing expenses, investments, and responsibilities of each party. The agreement could also address financial responsibilities of the parties, towards assets or one another, in the event of a separation.
The agreement could set out how any debts incurred by one partner for their own benefit, or for the benefit of both parties, will be dealt with either during the course of the relationship, or upon separation.
The agreement could outline how disputes and disagreements between parties will be resolved, which could include by way of mediation, or arbitration, alternatively approaching the Court for assistance.
Cohabitation agreements could be an important tool for couples who reside together, and wish to define their respective responsibilities and rights in terms of their relationship, and financial related aspects. These agreements are particularly valuable when there is a significant disparity in the income of the parties, or where there is a joint property but one partner, for example, saves money for the joint benefit of the parties, and the other pays off an immovable property jointly registered in the parties’ names without savings funds of their own.
It’s essential that the parties seek legal advice when entering into a cohabitation agreement to ensure that their interests are protected, and that the agreement is fair and enforceable.
If you need assistance in drafting a cohabitation agreement, the team at Pagel Schulenburg Attorneys can provide you with expert guidance.