If you’re about to move in with your partner with no immediate plans of getting married, you need to know that – contrary to popular belief – South African law doesn’t recognise common-law marriage, regardless of how long the two of you have been co-habitating.
“There is no such thing as a common-law marriage, no matter how long a couple may live together. Their cohabitation does not create any automatic legal rights and duties between them, this is a common misconception,” says attorney Roy Bregman.
This means that living with a partner unmarried can be somewhat risky in the event that the relationship breaks down. And unlike married couples, if your partner should die and they haven’t drawn up a will that recognises you as their beneficiary, you won’t be entitled to your partner’s inheritance.
While there have been some successful court cases where live-in couples have been recognised as a partnership, in each case, the onus was on each individual to prove exactly what it is that they brought into the relationship in order to claim any legal rights.
As a means of protecting yourself, Bergman advises that unmarried couples living together draw up a cohabitation agreement that essentially details each partner’s rights and obligations within the relationship.
“Cohabiting couples do not have the same rights as married couples under the law, so it makes sense to set out at the outset of the relationship what the division would be if the cohabitation breaks down,” he says.
Bergman says every cohabitation agreement should provide for following:
- Movable property
Draw up a list of all of the movable property assets that each party brings at the start of the relationship and agree straight off the bat whether or not these assets become joint assets. “Similarly, keep a register of assets acquired during the relationship and agree whether these too become joint assets,” Bergman advises.
- Immovable property
If the property you’re living on is co-owned, then you’re going to need to stipulate what the shareholding is and who gets what if the relationship ends.
“If it is solely owned, you may consider compensating the non-owner for improvements down to the property at his or her expense. If the common home is leased property, provide for who stays on when you part ways,” he says.
- Financial arrangements
This is a very important aspect of your cohabitation agreement and needs to answer these critical questions:
– Will you have a joint bank account?
– Who will pay the household and living expenses?
– Who will enter into credit agreement?
– Will we both be taking life cover on each other’s lives?
– Who will own cars and other assets?
–Who is responsible for the debt if the relationship comes to an end?
“If you have or intend to have children, agree whether one partner is to support the other party during the relationship if such a partner is unemployed or staying home to care for small children born from the relationship,” advises Bergman.