In modern society, it is common for couples to live together in a long-term monogamous and intimate relationship similar to that of husband and wife, without being married.
This can be referred to as “cohabitation” or a “life partnership”.
But how does the law view such a relationship? What are the legal consequences of its existence and what happens when it ends?
Cohabitation is perfectly legal, but unlike a marriage, does not afford the parties any noteworthy legal recognition or protection, unless the parties decide to regulate their relationship by entering into a contract setting out each party’s rights and responsibilities.
- Differences between marriage and cohabitation
· The law prescribes many formalities to be followed when persons get married or divorce. Cohabitation relationships exist based simply on the consent of both parties and dissolve as soon as one or both of them decide to end the relationship.
· Persons who are legally married, have a joint estate (unless they enter into an antenuptial contract), and each party will be entitled to 50 per cent of their joint estate when they divorce or a spouse passes away. Spouses married in community of property are also jointly liable for each other’s debts. Cohabitants are generally not entitled to share in each other’s assets when the relationship ends and are not liable for the other party’s debts.
· Married persons have a legal obligation to maintain each other and it is possible for a spouse to still receive maintenance after divorce or the death of the other spouse. Cohabitants do not have an automatic right or duty to maintain one another.
· Married persons can inherit from one another, even where a spouse passes away without a valid will. Cohabitants can only inherit from their partners if stipulated in a will.
- Difference between marriage and cohabitation with regards to children
A father who is married to the mother of his child (or was married to her when the child was conceived, during her pregnancy, or when the child was born), has automatic parental rights and responsibilities to care for, have contact with, be guardian to and maintain his child.
An unmarried father acquires parental rights if, at the time of the child’s birth, he is living with the mother in a permanent life partnership.
He can also acquire such rights, regardless of whether he is or was living with her, if he:
– consents to being or successfully applies to be identified as the father or pays damages in terms of customary law;
– contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
– contributes or has attempted in good faith to contribute to the child’s maintenance for a reasonable period.
Fathers without parental rights still have a duty to maintain their children.
- How do cohabitants protect their rights?
Cohabitants usually reach an informal agreement on how their arrangement will work.
The problem arises when they decide to go their separate ways: Who will pay the bond? Who gets the television?
With whom will the children stay? How will I survive without his financial support? What happens if she passes away? Who keeps the dogs?
Although an agreement in this regard can be reached verbally or implied from the conduct of the parties, it is prudent that cohabitants enter into a written agreement that will regulate all necessary aspects of their relationship and the possible termination thereof, particularly when it comes to the joint ownership of assets.
Cohabitation relationships are complex and can have very serious emotional and financial implications.
It is suggested that cohabitants solicit professional legal assistance to ensure that their best interests are secured.
Article compiled by Francois de Kock from Juan Kotze Attorneys. They may be reached at 011 892 1019, francois@therescueshop.co.za or juan@therescueshop.co.za
