Cohabitation

Do you live with someone in a cohabitative relationship? What are your rights? Are you entitled to support?

Many people think that there is a so called “common law marriage” that magically comes into being after a certain period of time whether it is three months or three years. Nothing could be further from the truth. You need to know your rights in this regard.

What then is a cohabitative relationship? There probably need to be three elements present :

• A Sexual relationship
• A factual cohabitation
• A measure of stability to the relationship

If these three elements are present then you can probably be said to be cohabitating. BUT you do need to know that this does not automatically entitle you to support, medical aid, half the furniture or anything else. Our courts have however recognised the concept of a universal partnership which may be of application to some or all of the parties assets. The courts have recognised that there MAY exist an express or implied universal partnership between the parties. Unfortunately there is no law in South Africa defining the relationship of cohabitation and it would pay you to take proper legal advice and enter into a properly drawn contract with the other partner or “spouse” in this relationship to define the rights and obligations of the relationship.

Some of the things to consider would be :

• Where will you live?
• Who will pay the mortgage bond? Will you both contribute and what percentage?
• Who will pay the monthly living expenses and in what proportion?
• Will there be a joint bank account?
• Will you retain separate bank accounts?
• Who will pay school fees if there are children?
• Will the furniture be owned jointly or will a separate list be kept of who owns what?
• Will it be necessary to make a full disclosure of your finances before cohabiting and should separate balance sheets be drawn up?
• What about inheritances or bequests received by either party?

As you can see there are a myriad questions to ask yourself before setting out on a joint life with someone else (of either sex) if that life does not encompass marriage.

Go into your cohabitative relationship with your eyes open and make sure you enter into a suitable contract with one another to prevent any difficulties should a split occur.