Living together for many years with no valid marriage in place and sharing the responsibility of running a household may seem acceptable. But what happens when things go wrong in the relationship?
What needs to be clearly understood is that there is no such thing as “common law marriage” in South Africa. This means no matter how long you have been living together, the consequences of your relationship or whatever financial contributions you have made to each others lives or shared businesses, will not give you both the status of a validly married couple. In addition, neither one of you will be entitled to a duty of support, maintenance after death from the deceased’s estate, automatic inheritance from the deceased’s estate and a division of assets based on a marriage in community of property or one with accrual.
A COHABITATION RELATIONSHIP
Your relationship will be considered a cohabitation relationship, which has no law that regulates the rights of the cohabitants, since the Domestic Partnerships Bill, which deals with the status of cohabitants, has not been made part of our law yet. This then poses both a financial and legal risk for both of you that would need to be managed.
HOW DO I PROTECT MYSELF?
The best way to protect yourself is to mediate a cohabitation agreement that will protect your rights if the relationship ends. Such an agreement helps ensure that both parties understand what their rights and assets will be if the relationship ends. Should they continue their relationship to eventually marry, they will go into the marriage well informed of their financial status and responsibilities in the next phase of their relationship.
A cohabitation agreement should outline:
- How you will conduct your living arrangements and expenses.
- The rights and responsibilities of you and your partner, financial and otherwise.
- How any property you own will be divided in the event the relationship breaks down.
- Clearly set out what property (cash, furniture, the house and other assets) each of you will leave the relationship with if you break up.
The agreement should be structured according to your circumstances at the time and adapted if your conditions change. For example, if one partner will put a career on hold to raise children, make sure that the agreement provides, that in the event of the end of the relationship, for him or her to leave the relationship with a fair share of the assets, as well as a stipend for living expenses.
Also, there needs to be an agreement that you will both mediate a parenting rights and responsibilities agreement with regard to any child(ren) born of the relationship, so as to maintain the child’s contact and care with both biological parents.
BENEFITS OF MEDIATING A COHABITATION AGREEMENT
- You both are able to discuss the possibility of children in the relationship and where each of your duties and responsibilities will lie before and after the birth of the child.
- You will both understand the expenses that come with living in a joint household, who will be responsible for such expenses, or how it would be apportioned in terms of your respective salaries.
- Since no court order allows either of you to support each other financially once the relationship has ended, an agreement which deals specifically with assets accumulated over the course of the relationship will allow both of you to take back what you contributed or reimburse each other for your contributions.
- You will have an insight into what marital regime you would like to enter into before marriage, based on how you both currently run the household and accumulate assets.
- You may choose to manage your own money while allowing yourself to witness how your partner manages their finances.
- You and your partner would also ensure that your wills are up to date and that you have provided for each other in event one of you dies.
