Cohabitation

Are you and your partner living together?

If your answer is yes, you might not be aware of the various options available to protect your assets and lifestyle.  It is important to remember that a cohabitational relationship might resemble a marriage but it does not receive the same protection as a married couple. In South Africa, cohabitation increases by almost 100% each year and it is becoming more common for life partners in a cohabitation relationship to enter into an agreement.

What is a cohabitation agreement?

A cohabitation agreement is a written contract used by unmarried couples in a long term relationship who wish to stipulate how their finances and assets during the existence of the relationship will be divided should the relationship come to an end.   The agreement can also address certain obligations and rights during the course of the relationship, such as, living expenses, property and debt.

Is a cohabitation agreement enforceable in South Africa?

Although Cohabitation is not recognised as a legal relationship in terms of South African law, the terms of such an agreement will be enforceable between the two parties, but not enforceable against third parties (eg. creditors).   An enforceable agreement also does not mean that you will be able to claim maintenance, damages or donations made during the existence of the relationship unless you are able to prove unjust enrichment.

Furthermore, a Cohabitation Agreement will not ensure that a party will be able to automatically inherit after the death of one person and in fact, any condition contained in the Cohabitation Agreement relating to inheritances or maintenance after death will be invalid unless it is contained in a validly signed will.

What must be contained in your Cohabitation Agreement?

The content of the agreement will be determined by the needs of the parties which means that the contents of the agreement may include any provision that is not illegal.

Are there any legal requirements for a valid Cohabitation Agreement?

The normal contract law requirements are applicable to a Cohabitation Agreement i.e. both parties must enter into the agreement freely, willingly and with the necessary contractual capacity.  Furthermore, the contract must be notarised in order to be binding in certain circumstances eg. work benefits or spousal visas.

We will gladly assist in the drafting of your Cohabitation Agreement.  Call our office today to make the necessary arrangements.