Who Gets What After Living Together?

Private Property South Africa
Anna-Marie Smith

SA law does not recognise the concept of common law marriage. And so the need for legal agreements between cohabiting partners is highlighted.

Global studies reflect a steady upward trend, such as the US Centre for Disease showing only 10% of couples in 1960 cohabiting prior to marriage, as opposed to approximately 60 percent currently living together first. The US Census Bureau showed the rise in unmarried couples living together between 2009 and 2010, of 13% in opposite sex couples, and 30% in same sex couples. European trends show 2.5-million heterosexual couples living together in France, to be almost double that of their one million counterparts in the UK. In Scandinavia, nine out of 10 Swedish couples who get married for the first time, already live together, while in Denmark, more than one third of the female population in their early 20's are unmarried, but cohabit with partners.

What does SA law say about partners living together?

Smith Tabata Buchanan Boyes (STBB) says no amount of time spent living with another person will convert a cohabitation relationship into a marriage. This week’s article on cohabitation is the third in this series together with STBB, following marriage contracts out of community of property, and antenuptial contracts with, or without accrual.

The mistaken belief that common law marriages exist, and that it creates legal rights and duties between partners, is not so says STBB. Cohabiting couples need to be aware that even if both partners put money into a house, courts will not assume equal ownership of the house in the event of a breakup.

How can legal protection for both partners be addressed?

STBB suggests protection for both parties by way of a domestic partnership agreement. This will regulate each partner’s expectations, while also determining the division of property and assets upon breakup. Such an agreement will not be enforceable against third parties.

What if there is no legal agreement upon breaking up?

Upon dissolution of relationships, parties are usually left with the property and assets with which they entered the relationship, or that which they acquired during the relationship, in their individual names. Since each spouse owns what they brought into the relationship, they are also free to deal therewith as they wish. If the cohabitants pooled their assets by, for instance, jointly purchasing immovable property, each party may recover their individual contribution. When this is not clear or cannot be agreed upon, parties are required to seek a court order to indicate how the jointly held assets should be divided.

What are the ‘benefits of a cohabitation agreement’?

STBB says sometimes a cohabitant, to qualify for ‘benefits of a cohabitation agreement’, bases the claim on the existence of a universal partnership.

To prove existence of such a partnership, proof must exist of:

Each party bringing something into the partnership, such as money, labour or skill

That a business was carried on for the joint benefit of the parties

That the object was to make a profit

That the contract was legitimate

Not adequate then, for a cohabiting partner to simply to approach a court, alleging that due to cohabitation for a period of time, one is entitled to certain patrimonial benefits.

Entering into simple written agreements will help govern the individual propriety regimes of partners.

STTBB senior associate Maryna Botha says uncertainty remains while the legal implementation of the Domestic Partnership Bill that was drafted and promulgated in 2008 is awaited: “When enacted into law, this will bring significant change in the lives of domestic partnerships.”

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