Cohabitation is the act of living together or having sexual relationship when you are not married. In South Africa, cohabitation is not recognized as a legal relationship. Whereas cohabitation may appear to be like a marriage, the only difference is that it has no any legal support.
Three things define cohabitation, they include; the sexual relationship between the couples (of different sex or the same sex), living in the same house, and stability of the relationship. The couple also, may have an obligation to be responsible for one another.
South African law on cohabitation
There is a law that regulates the rights of parties in a cohabitation relationship. However, cohabitation law does not offer protection to the parties involved as compared to laws regulating marriage. For example, if one of the couples cohabiting dies, the other remaining couple has no right to inherit the properties as stipulated by the Interstate Succession Act.
In addition, the Maintenance Of Surviving Act enable spouses to secure maintenance on the death of a partner. Furthermore, it is not a must for cohabitants to maintain each other.
Despite the lack of legal framework governing cohabitation, South African courts have however, ruled that there may be an implied universal proper partnership between cohabiting couple.
Agreement Between Cohabitants
Couples who are cohabiting are allowed to make an agreement that defines their roles and obligations during the existence of their union, also taking into consideration the consequences that may arise following termination of their union.
Such agreements are usually referred to as cohabitation contracts or domestic partnership agreements. The agreements provide guidance on financial regulations during the existence of the relationship and how property is to be divided upon the termination of the union.
Should either partner fail to honor the agreement, one partner can proceed to court for legal assistance. On the other hand, if the cohabitants do not come up with an agreement, then they will not have any legal protection when they terminate the union.
Termination of the Union
Cohabiting partners have no automatic legal right to inherit from the other and no right to spousal maintenance upon death of a partner or upon dissolving of the relationship. In addition, there is no law that allows the transfer of a person’s pension assets in a cohabitation union.
A partner however, may make an application to court requesting to divide the property of the other partner in a fair way. For this application to be successful, the partner making the application must prove his or her contribution to the maintenance of the other partner’s property during the relationship.
In addition, in the event that the partners have no cohabitation agreement during the time of the union’s termination, then it is automatically ruled out that private property acquired by the cohabitants before the relationship belongs to the partner who originally acquired it.
If there is no cohabitation agreement between the cohabitants, then the property bought during the relationship will belong to the partner who purchased them, unless proven otherwise.
Now Read: The Divorce Process in South Africa