Introduction
Cohabitation, commonly referred to as living together or being in a life partnership, has become increasingly common in South Africa. Many couples choose not to marry for personal, cultural, or financial reasons, often believing that long-term cohabitation provides the same legal protection as marriage. This belief is incorrect. South African law does not automatically afford cohabiting partners the same rights as married spouses.
A cohabitation agreement is therefore a crucial legal instrument for unmarried couples who live together. This article explains what a cohabitation agreement is, why it is important, what it should include, and how it is enforced under South African law.
The Legal Position of Cohabiting Partners
Unlike marriage, cohabitation is not formally regulated by a single statute in South African law. As a result, cohabiting partners do not automatically acquire rights to:
- Share in each other’s property;
- Claim maintenance after separation;
- Inherit from one another without a valid will.
Any rights that arise between cohabiting partners are largely based on contract law, the law of unjustified enrichment, or limited statutory provisions in specific circumstances.
A cohabitation agreement provides legal certainty by clearly defining each party’s rights and obligations during the relationship and upon its termination.
What Is a Cohabitation Agreement?
A cohabitation agreement is a written contract between two partners who live together or intend to live together but are not married. The agreement regulates the financial and practical aspects of the relationship and records the parties’ intentions should the relationship come to an end.
It functions similarly to an antenuptial contract, but applies exclusively to unmarried partners.
Why Is a Cohabitation Agreement Important?
Without a cohabitation agreement, disputes following separation often result in costly and emotionally taxing litigation. A properly drafted agreement:
- Clarifies ownership of assets and liabilities;
- Protects financially vulnerable partners;
- Reduces the risk of future disputes;
- Provides certainty in the event of separation or death;
- Demonstrates the parties’ intentions in a legally enforceable manner.
Courts generally respect cohabitation agreements, provided they are lawful and voluntarily concluded.
What Can Be Included in a Cohabitation Agreement?
A cohabitation agreement may be tailored to suit the specific needs of the parties. Common provisions include:
1. Property Ownership
- Ownership of existing assets;
- Treatment of jointly acquired property;
- How property will be divided upon separation.
2. Financial Contributions
- Responsibility for household expenses;
- Division of utilities, rent, or bond payments;
- Bank accounts and shared finances.
3. Debt and Liabilities
- Responsibility for existing and future debts;
- Protection from liability for a partner’s personal debts.
4. Maintenance and Support
- Whether maintenance will be payable upon separation;
- Duration and amount of any agreed maintenance.
5. Children
While parental rights and responsibilities are governed by the Children’s Act, a cohabitation agreement may record intentions regarding:
- Care and contact arrangements;
- Financial support for children.
Any provision relating to children remains subject to the best interests of the child and court oversight.
6. Death and Estate Planning
- Whether partners will provide for each other in their wills;
- Pension and beneficiary nominations.
What Cannot Be Included?
A cohabitation agreement may not:
- Override statutory duties relating to child maintenance;
- Prejudice the best interests of a child;
- Contain unlawful or immoral provisions.
Any clause contrary to public policy may be declared unenforceable by a court.
Formal Requirements for Validity
For a cohabitation agreement to be legally enforceable, it should:
- Be in writing;
- Be signed by both parties;
- Be entered into voluntarily;
- Reflect full and honest financial disclosure;
- Ideally be signed in the presence of witnesses.
Although notarisation is not legally required, legal drafting by a qualified attorney is strongly recommended.
Enforceability of Cohabitation Agreements
Cohabitation agreements are enforceable under South African contract law, provided the usual requirements for a valid contract are met, namely:
- Consensus;
- Capacity;
- Lawfulness;
- Certainty of terms.
In the event of a dispute, the agreement serves as primary evidence of the parties’ intentions.
What Happens Without a Cohabitation Agreement?
In the absence of a cohabitation agreement, a partner seeking financial relief may be forced to rely on:
- Claims based on unjustified enrichment;
- Proving the existence of a universal partnership;
- Lengthy and uncertain litigation.
Such claims are complex, expensive, and outcomes are unpredictable.
Cohabitation Agreements and Same-Sex Couples
Cohabitation agreements are particularly important for same-sex couples who choose not to marry. While same-sex marriage is legally recognised in South Africa, unmarried partners remain subject to the same legal limitations as heterosexual cohabitants.
Conclusion
Cohabitation agreements play a vital role in protecting the rights and interests of unmarried partners in South Africa. They provide clarity, certainty, and legal protection in circumstances where the law does not automatically intervene.
Couples who live together or intend to do so are strongly encouraged to seek legal advice and enter into a properly drafted cohabitation agreement to avoid unnecessary disputes and financial hardship in the future.