Cohabitation – putting pen to paper

Cohabitation – putting pen to paper

Cohabitation (living together in a relationship of a permanent nature) is becoming more common each year even though there is currently a shortage of appropriate and specific legislation with a direct impact on people in cohabitation relationships. This lack of legislation being that cohabitation is not a recognised legal relationship in South Africa, even though a vast majority of legal consequences arise from these relationships.

For example, (this could be applicable to both same sex and opposite sex couples), A and B have been living together for 20 years as partners and have 2 children together. A and B have no written cohabitation agreement between them. A then suddenly passes away without a valid will. B realises that they don’t necessarily have the same rights afforded to someone whose relationship is recognized by the Civil Union Act or Marriage Act, regardless of the duration of their relationship.

Cohabitation partners may only be entitled to the assets they themselves had at the beginning of the relationship and may by no legal means be entitled to a share in their partner’s assets, even though they may have contributed to the growth of their partner’s estate.

These issues or challenges faced by partners in a cohabitation relationship include but are not necessarily limited to: estate duty, intestate succession, becoming a beneficiary of a medical aid scheme, the right of access to their partner’s pension fund benefits and maintenance. Certain South African financial institutions won’t even allow a shared bank account for cohabitants. These financial institutions only make provision for co-signing rights, but the liability and assets still vest in the party in whose name the account is registered in.

When a cohabitant is under the impression that they are entitled to something of their partner, the onus is on them to prove the existence of the relationship, the rights and duties arising out of the relationship and, their claim as such.

It is the parties’ responsibility to enter into a written cohabitation agreement as a means to protect themselves and their partner. A cohabitation agreement could entail every aspect of the relationship, including the contribution to and management of joint finances (shared living costs, assets, and liabilities), guardianship over co-owned pets and how to administer and deal with their shared assets in a possible break up or dissolution of the partnership/relationship.

When considering cohabitation, it’s important to remember it is far more than just two people choosing to live together and share a household. Cohabitation, like marriage entails two peoples’ lives becoming very much intertwined, in almost all aspects and is worthy of proper planning, thought and consideration as well as a written agreement.

Article by Zancha Kruger (LLB), Candidate Attorney.

For more information kindly contact Zancha via Zancha@rgprok.com or 044 601 9900.

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Disclaimer
Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.

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