Cohabitation, the act of living together without being legally married is becoming increasingly more common in South Africa. While this status does not have the same legal status as marriage, cohabiting couples still have certain rights and protections under the South African law. However, living with a partner for an extended period of time does not, by itself, establish a common law marriage with all the legal rights and benefits that comes with it. In this article, we will explore the legal consequences of cohabitation in South Africa, including the rights and consequences of cohabiting couples.
As stated above, cohabiting couples do not have the same rights and responsibilities as married couples regardless of the relationship’s duration, however, cohabiting couples can enter into a cohabitation agreement known as domestic partnership agreements or cohabitation contracts to outline their rights and responsibilities. This was also ruled in the case of H v W (2006), where the constitutional court held that a cohabitation agreement can be used to protect the rights of cohabiting couples. A cohabitation agreement protects the interests of the cohabiting couples and defines their rights and responsibilities, for instance it gives them the right to apply for maintenance from each other without the strict need to prove that they are financially dependent on each other, and it also gives them right to be protected from unfair discrimination based on their marital status.
In the absence of the cohabitation agreement, cohabitation can have implications when it comes to inheritance, estate planning and family relationships. If one partner in a cohabiting relationship dies without a will, their assets may not automatically pass to the surviving co-habiting partner. This can cause legal and financial problems for the surviving partner, who may have to go through a long and costly process to claim their share of the estate. Unlike in a legally recognized marriage, cohabitants do not have an automatic legal duty to support each other and may not have enforceable rights to claim financial support from each other.
In summary, cohabitation may offer a viable alternative to traditional marriage for many couples in South Africa. However, it is crucial for cohabiting couples to understand the legal implications of their decision, and to take steps to protect their rights and interests. While cohabitation may not have the same legal recognition as marriage, it is important for couples to know that they still have rights and protections under South African common law. By creating a cohabitation agreement and seeking legal advice, couples can ensure that their relationship is as secure as possible.
