Cohabiting couples – ensuring a (legally) supportive environment

No one should be left high and dry when a relationship ends

Once upon a time, couples who lived together before marriage were accused of “living in sin”. Furthermore, cohabitation usually preceded marriage; it did not replace it. Now, many couples are choosing to live together and form permanent life partnerships without benefit of legal marriage. Under South African law, cohabiting couples – frequently but mistakenly called “in a common-law marriage”, can formalise the situation in one of two ways: a cohabitation agreement or a universal partnership agreement.  

Cohabitation

When an unmarried couple lives together, the relationship can be described as cohabitation. Contrary to what some people believe, there is no “law of cohabitation” in South Africa and cohabitation is not a recognised legal relationship. However, some legislation defines “spouse” in such a way that includes a partner in a cohabitative relationship. Cohabitation refers to a stable, monogamous relationship in which the couple, either male-female or same-sex, chooses not to marry but to live together as spouses. Specific definitions vary from country to country, but there are three universally agreed components: a sexual relationship between the couple, a factual cohabitative relationship (i.e. they live in the same home), and stability of the relationship.

Cohabitation agreement

To formalise their arrangement, and ensure some protection under the law, the couple may elect to enter into a cohabitation agreement setting out their rights and responsibilities. A cohabitation agreement is a relatively simple contract that includes details of a couple’s assets, property and the financial contributions each partner makes to the joint home. It is valid when ratified by an appointed lawyer. Many couples neglect this formality, but they do so at their peril. A cohabitation agreement can provide certainty should the relationship fail, allowing each party to rely on the terms of the agreement and their respective contractual rights and obligations for a fair and equitable distribution of assets. 

Cohabiting couples often undertake many of the same financial commitments as married couples, such as home purchase, life insurance, etc. If, for example, the home loan (bond) is in both names, they will each have title to the property if they decide to go their separate ways. But if, as often happens, the bond is in one name, and the other contributes to household costs, it can be harder to prove ownership rights. A cohabitation agreement ensures asset distribution is fair and reflects each partner’s contribution to the union. It can be as detailed as necessary, and may cover a home loan or tenancy, shared debts, children of the union, insurance policies, a shared vehicle, even the family pet! Having a cohabitation agreement in place helps to reduce conflict when it comes to deciding how to share or divide these assets and responsibilities.

Universal partnership

The other option is a universal partnership agreement. A universal partnership affords each partner in a cohabitative relationship a right to a share in the property acquired during the relationship. A universal partnership does not need to be formalised via a written or even an oral agreement. The courts have recognised tacit agreements as universal partnerships, if the following requirements are met: both parties must contribute to the partnership, the partnership must make a profit, it must operate for the benefit of both parties, and the contract between the parties must be legitimate. In a universal partnership both parties agree to put their current and future property in common. It resembles a marriage in community of property. If the existence of such a relationship can be proven, each party can lay claim to the assets of the partnership in line with the agreement. However, universal partnership is difficult to prove. To be sure of being recognised and accepted by the courts, it is advisable to draft a written universal partnership agreement. In that case, the couple might as well draw up a proper cohabitation agreement. If the aim is to secure each partner’s rights and responsibilities in the relationship, the cohabitation agreement is the more conclusive option.

If there is no agreement in place…

What happens when the cohabitating couple does not enter into any form of written agreement, as most do not? The social shift away from marriage has caused an increase in the number of partners left with no legal recourse on the termination of the life partnership, whether through relationship breakdown or death. Most couples earn two incomes these days. It is less common for there to be only one earner, even when the couple has children. Very few households can manage on a single income. But there may be a disparity in earning potential between the partners. The woman often – but not necessarily – earns less than the man in a heterosexual relationship. Over the course of the relationship, the lower earner is likely to have become accustomed to a certain standard of living that might be beyond what they can afford on their own. Once the partnership ends they may find they have to accept a drop in their living standard. This could place them in a vulnerable and even precarious financial position with little or no legal recourse. 

Duty of support

As it stands, the common law recognises a reciprocal duty of support between spouses during a marriage, which can, in certain circumstances, extend beyond the marriage into divorce. This automatic duty is a requisite of their marital status. Currently, parties in life partnerships do not enjoy the benefits of this duty of support. 

Arguably, the non-recognition of a permanent life partnership infringes on the lower-earning partner’s right to equality and human dignity in terms of section 9 of the Constitution. Our courts are duty-bound to develop the common law as and when needed to ensure the spirit, intent and objectives of the Bill of Rights are upheld. Therefore, the legal status quo needs revision. The right to equality can be achieved by recognising the duty of support for unmarried permanent life partners for the duration of the life partnership in line with that of a marriage. This would allow life partners to claim personal maintenance after the dissolution of their life partnership. 

Law in action

The Western Cape division of the High Court has been tasked to make a decision regarding the obligations of support between couples in permanent life partnerships. A case has come before the court concerning a woman whose relationship with her partner and the father of her three children has ended. They are not married. She is seeking maintenance from him, which the law does not currently mandate, hence she is appealing to the High Court. She is asking the court to declare that common law recognises a duty of support between partners in unmarried, opposite-sex partnerships, where the relationship has broken down. If the decision goes in her favour, it will pave the way for a life partner to make a personal maintenance claim against their higher-earning partner. At the latest hearing, in January 2023, the Women’s Legal Centre was admitted as a friend of the court to assist the full bench of the High Court with the final judgment. 

Meanwhile, if you need help

Simon Dippenaar and Associates Inc. are experts in family and divorce law. We can help unmarried couples in a life partnership draw up a cohabitation agreement or a will. Call us on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

• Universal partnership agreement. Not getting married? You will need one
• Court asked to permit unmarried couples in life partnerships to claim maintenance when separated
• Unmarried maintenance – no change to common law
• A matter of life and death
• Common Law Marriage and Living Together
• Cohabitation – What is it?
• Cohabiting couples have lower blood sugar levels, study finds

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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