Cohabitation Agreements

Introduction

Today, about 60 percent of couples live together before a marriage. Some people are of the opinion that if they live together they are as good as married, which is simply not the case. There is no common-law marriage in South African law and, therefore, the period of time that a couple spends living together does not translate into a default marriage. If you do not wish to be married, but choose to reside with your partner, it is advisable to enter into a cohabitation agreement in order to protect you both in the event of the termination of the relationship.

Unlike marriage, which is regulated by specific laws that protect the individuals in the relationship, cohabitation offers no such comfort. For example, when a cohabitant dies without a valid will, their partner has no right to inherit under the Interstate Succession Act. A cohabitant can also not rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance on the death of a partner. Furthermore, there is no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance.

The law as it stands is unsatisfactory, simply because it does not place cohabitants on the same footing as partners in a marriage or civil union. Fortunately, the South African law on cohabitation will soon be rectified by the draft Domestic Partnerships Bill that was published in January 2008. Until the Bill is adopted into legislation, however, the status of cohabitants in South Africa will remain significantly different from spouses in a marriage and partners in a civil union.

Legal protection of cohabitants

There is some legislation that places cohabitation and marriage on an equal footing:

  • Cohabitation is recognised under the Domestic Violence Act.
  • The Medical Schemes Act 131 of 1998 defines a dependant to include a ‘partner’.
  • In terms of the Income Tax Act and the Estate Duty Act, cohabitants are treated as spouses for the purposes of tax legislation, and the word ‘spouse’ is defined to include a permanent same-sex or heterosexual relationship.
  • Either partner in a cohabitation relationship may name the other as a beneficiary in a life-insurance policy. The nomination will, however, have to be clear, because a clause in an insurance policy that confers benefits on members of the insured’s ‘family’ may cause problems. And if a policy, for instance a car insurance policy, covers/excludes passengers who are members of the insured’s family, this provision does not operate to the benefit/detriment of the insured’s partner.
  • The law does not distinguish between married and unmarried parents in regard to the obligation to maintain children. Decisions regarding care and contact are based on what is in the best interests of the child. Children are protected if the couple is not married since both biological parents are responsible for the maintenance of their children. The father and mother are both still liable for maintenance if the couple splits up.  This will not apply to same sex couples as both cannot share a biological link with the child.
  • A domestic partner may receive pension fund benefits as a nominee. A domestic partner may also receive pension benefits as a factual dependant if he/she qualifies as such under the definition of ‘dependant’ in the regulations or conditions of that particular fund. A domestic partner will, however, not be entitled to their partner’s pension interest on termination of their relationship.
  • Under the South African Compensation for Occupational Diseases Act, 1997, a surviving domestic partner may claim for compensation if their partner died as a result of injuries received during the course of work, if at the time of the employee’s death they were living as ‘husband and wife’.

Cohabitation agreements

Life partners (regardless of their sex) are permitted to enter into a contract similar to an antenuptial contract that regulates their respective obligations during the subsistence of their union and the (patrimonial) consequences of the termination thereof. The contents and nature of a cohabitation agreement will depend on the needs of the parties. The parties may include any provision in the agreement that is not illegal, against the morals of society or contrary to public policy. Such an agreement will usually contain regulations regarding finances during the existence of the cohabitation relationship and deal with the division of property, goods and assets upon its termination. Parties 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. Cohabitants who fail to draw up a cohabitation agreement will have no legal protection, unless they can prove the existence of a universal partnership.

What happens when the relationship ends?

As no reciprocal duty of support exists between partners in a domestic partnership, there is no enforceable right to claim maintenance, either during or upon termination by death or otherwise of the relationship, unless maintenance is regulated in a cohabitation agreement. There is also no action for claiming damages in the event of the unlawful death of a partner.

Cohabitants cannot reclaim monies that they spent on maintaining their partner during the relationship, unless they can make out a case for unjust enrichment. Similarly, donations made between partners in a cohabitation relationship cannot be claimed back by the donor.

There is no law that allows for a person’s pension assets to be transferred in a cohabitation partnership. A cohabitation agreement will have no effect either, as it would not be enforceable against the pension fund. Even those who are able to prove the existence of a universal partnership cannot share in their partner’s pension assets on termination of the relationship, as is the case with people who have registered their unions in terms of the Marriage Act or the Civil Union Act. It still needs to be decided by our courts whether or not this amounts to discrimination on the basis of marital status, especially since cohabitants can be awarded these assets on the death of their partners. Cohabitants also cannot bind their partners to contracts with third parties for household goods.

In the absence of a cohabitation agreement or a proven universal partnership, private property acquired by the cohabitants prior to their relationship belongs to the partner who originally acquired it and no community of property can be established. It therefore follows that a cohabitant who is not the owner of the property has no special right to occupy the common home. Cohabitation per se does not give rise to automatic property rights, but the ordinary rules of the law of contract, property and unjustified enrichment might be invoked by cohabitants to enforce their rights.

Cohabitation and death

There is no right of intestate succession (when someone dies without a will) between domestic partners, no matter how long they have lived together. A partner is not automatically regarded as an heir or dependant. The rules of intestate succession, as set out in the Intestate Succession Act 1987, are clear. In the event of there being no valid will, the beneficiaries are, in the first instance, a spouse or descendants or both. In the event of there being no spouse or descendants, the estate devolves upon other more distant members of the bloodline.

If the surviving partner is not named in a will, he/she will be faced with the monstrous task of having to prove his/her specific contribution to the joint estate before entitlement will be forthcoming. Proving actual contribution is often extremely difficult, especially when a partner has died. Litigation is usually lengthy, costly and unwelcome, particularly at a time already fraught with emotional trauma. This problem is exacerbated if the deceased had not divorced a previous spouse. In law, the first spouse clearly has the leverage to proceed and claim the entire estate. There is no obstacle to making specific provision for a domestic partner in a will. A person is entitled to leave his/her estate to a partner even to the exclusion of his/her spouse.

How can we help?

We can assist cohabitees to draft a Cohabitation Agreement dealing with the division of their property upon termination of the relationship, whether by the death of one of the parties or the termination of the relationship. It can also provide for the duty of support between the parties, the right to share in each other’s property during the relationship or upon termination thereof and to inherit from each other in terms of the rules of intestate succession. The agreement may be entered into at any point during the relationship, prior to the termination thereof. It is also advisable that a Will be drawn up in order to govern the succession of the parties.

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