In South Africa, cohabitation has become more common over the past number of years and it is believed that the number of cohabitants increases by almost 100% each year. Unfortunately, men and women and same sex partners living together do not have the same rights and duties as married couples do. Contrary to popular belief, this is the case regardless of the duration of the relationship.
Cohabitation is not recognised as a legal relationship in South African law. No law regulates the rights of parties in a cohabitation relationship.
Cohabitation and the Law
Marriage is regulated by specific laws that protect the individual in the relationship. Unfortunately, cohabitation offers no such comfort. Most importantly:
- There is no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance.
- When a cohabitant dies without a valid Will, the partner has no right to inherit under Intestate Succession Law.
- Cohabitants are not on the same footing as partners in a marriage or a civil union, especially on termination of the relationship. Whereas being married in Community of Property entitles each spouse to a half share in the total estate and being married with an Antenuptial Contract with accrual entitles each spouse to a share in the other spouse’s estate. This is not the case when a cohabitation relationship comes to an end unless a cohabitation agreement has been entered into.
Mention must be made however of the two legal principles that can assist a cohabitant without the support of a cohabitation agreement at the end of a relationship.
South African Courts have on occasion come to assistance of cohabitant couples by deciding that an express or implied universal partnership exists between them. A universal partnership exists when the cohabitants act like partners in all important respects without explicitly entering into a partnership agreement. In such cases where the relationship breaks down, the Court may award a share of the assets acquired during the relationship to each party. However, to prove a universal partnership is very difficult.
Cohabitants cannot reclaim money that they spent on maintaining their partner during the relationship unless they can make out a case for unjust enrichment. This is also a difficult case to prove.
Protection for children of a cohabitation relationship
With regard to the obligations to maintain children, there is no distinction between married and unmarried parents. If the couple is not married, children are protected since both biological parents are responsible for the maintenance of their children when they live together, as well as when they split up.
Instances where the law recognises the rights of cohabitants
- The Medical Schemes Act defines a dependent to include a “partner”.
- In terms of the Income Tax Act and Estate Duty Act, cohabitants are treated as spouses for the purpose of tax legislation and the word “spouse” is defined to include a permanent, same sex or heterosexual relationship.
- A cohabitant may receive pension fund benefits as a nominee.
- A cohabitant may also receive pension fund benefits as a factual dependent if he/she qualifies as such under the definition of “dependent” in the regulations or conditions of a particular fund.
- Under the South African Compensation for Occupational Disease Act, a surviving cohabitant may claim for compensation if their partner died as a result of injuries received during the course of work, on condition that at the time of the employee’s death, they were living as husband and wife.
It is most advisable and more common these days for partners in a cohabitation relationship to draw up a contract similar to an Antenuptial Contract that regulates their respective obligations during the subsistence of their union and the consequences of the end of their relationship. These agreements are referred to as “Cohabitation Agreements”. Such agreements usually contain regulations regarding finances during the existence of the cohabitation relationship and deal with the division of property and assets upon its termination. Such an agreement may even include an express provision for the payment of maintenance upon termination. If one partner refuses to follow the agreement, the other partner can approach a Court for assistance and in most cases, the Court will enforce the agreement.
For more information on cohabitation agreements and for assistance in drafting same, please email Greta Eiser at firstname.lastname@example.org or telephone our offices on (011) 783 9021.