In South Africa, it is widely believed that a couple automatically enters into a common-law marriage if they have lived together in a relationship for a certain amount of years. Even though such a common-law marriage is recognised in some countries throughout the world, no such provision exists under South African law. Regardless of how long two partners have lived together, they will be regarded as separate estates if no agreement exists between the parties. If a couple lives together and does not wish to get married, but still wants their rights and obligations protected, they can enter into a cohabitation agreement.

What is a Cohabitation Agreement?

When an unmarried couple lives together in a long-term relationship that is similar to a marriage, it is referred to as cohabitation. The purpose of a cohabitation agreement is to stipulate the legal obligations that the two parties have towards each other and also protect their rights during the course of the relationship, especially after it has ended. Parties can enter into a cohabitation agreement verbally, but it is always advised that the agreement be concluded in writing and signed by both parties. This enables you to have access to a hard copy of the agreement if any dispute should arise.

A couple can decide to enter into a cohabitation agreement at any time during their relationship. The agreement will then regulate certain aspects of the couple's life. For instance, it could stipulate the amount that each person has to contribute towards living expenses. The agreement could also regulate the debt obligations of each party and specify what maintenance payments they agreed on.     

A cohabitation agreement has a similar effect to an antenuptial contract between two spouses. Unfortunately in South Africa, there tends to be a stigma associated with a cohabitation agreement. Parties are often unwilling to suggest entering into this agreement because they fear that it might appear that they do not trust their partners, or do not believe that the relationship will last. In reality, the purpose of a cohabitation agreement is to protect the rights of both partners and it merely seeks to provide some form of remedy in the event that their cohabitation comes to an end. Just like an antenuptial agreement, a cohabitation agreement is intended to protect an individual's personal property and will in no way be a reflection of a couple’s relationship.        

What Happens if the Relationship Ends?

When a couple is in a long term relationship it is very likely that their financial affairs will become intertwined after a while. If the relationship then comes to an end without a cohabitation agreement in place, each individual is only legally entitled to the property that they purchased, and therefore own. This can make the division of property somewhat complicated, and disputes often arise with regard to the contribution of each individual during the relationship. And without a proof of purchase, you might not be able to prove that any of the property belongs to you. 

If you do have a cohabitation agreement in place it will help you to avoid some disputes at the end of the relationship. Certain things that might become points of contention, such as maintenance payments and the division of property, should be detailed in the agreement. This makes it clear from the inception of the agreement what the couple’s obligations are to each other, should they stop living together.   

Sound legal advice can go a long way when entering into any type of agreement. Contact Cawood Attorneys today if you require assistance with the drafting of your cohabitation agreement, or feel free to browse our website for more information on any of the services we provide.      


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