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Cohabiting? These Are The Legal Implications 

Apr 16, 2024 | Life

Did you know that in South Africa, there’s no such legal thing as a common law marriage? It’s a term used to refer to couples living together in a long-term relationship, so we’re going to use the term “cohabitation.” Similarly, cohabitation refers to people living together and sharing household responsibilities. There are many reasons why people choose to live together, ranging from getting to know one another better, needing help with dependents, to sharing expenses.  

In a lot of ways, cohabiting can be similar to marriage, with the exception of there being no legal structures in place to regulate this arrangement. Essentially, couples living with this kind of arrangement don’t enjoy the benefits, rights, and obligations that they would if they were married. Notably, it doesn’t matter how long the couple has been together. 

While this article doesn’t serve as legal advice, nor is it exhaustive, it can help you understand a bit more about the legal ramifications of living together – especially in the case of death or separation.  

Let’s Talk Money 

Cohabitants are not allowed to open joint accounts at a South African bank, that said, we should point out that a partner may have co-signing rights. Importantly, though, the liability for any overdraft accounts or loans will rest on the bank account holder. 

Let’s Talk “Decoupling” 

As mentioned, living together without being legally married, is void under the South African legal system. These couples are not automatically considered legal spouses, regardless of how long they’ve been living together, and as a result, the laws that make provision for married couples, don’t apply to them. 

Let’s say that the relationship ends and the couple decides to end the relationship and go their separate ways. In this case, there is no claim against each other for any sort of financial support. For instance, neither party is obliged to pay maintenance, even if one of the partners is financially vulnerable. 

The exception is if child support is required. 

The choice to get married or not is absolutely yours, however if the choice is to not get married, then what you may want to explore in order to protect both you and your partner (and your children, if you have any), is a Cohabitation Agreement

Let’s Talk Death 

In the unfortunate event that one of you dies, there will be no legal recourse for the other to claim benefits. Typically, in the case of married couples, the Intestate Succession Act, which regulates the assets of the deceased when they die without a Will, and the Maintenance of Surviving Spouses Act, which provides for a stipend to be provided from the deceased’s estate to look after their surviving spouse, would come into play.   

When it comes to cohabiting couples, however, neither of these Acts apply. 

The Key To Avoiding Disputes 

We mentioned that couples can draw up a Cohabitation Agreement, which outlines the contributions, rights and liabilities of each individual in the live-in relationship. It’s also an option to register your live-in relationship under the Civil Union Act, providing that both partners are 18 years or older, with valid South African IDs or a valid passport if one of the partners is a foreign national, and they must not be married already.  

In addition, we urge couples to have a valid Will drawn up. Without a valid Will, the most significant person in your life may be left with nothing. Oftentimes, the lack of a Will can result in family members fighting over the distribution of an Estate when final wishes aren’t clearly documented. Moreover, without a Will, it can take years to wrap up your Estate.  

Feel informed?  

Ultimately, it is advisable to have a Will, drafted by a professional in the field. This way, you can set out how you wish your Estate to be divided in the event of your death, you can prevent further emotional stress for your loved ones, and you can make sure that unnecessary costs and delays in winding up your estate are avoided. 

Importantly, as a partner in a cohabiting relationship, a Will is a necessary means to protecting the surviving partner and having your wishes honoured. 

Get a complimentary Will drawn up, and don’t forget that we also have a number of other tools and resources, including calculators, property valuation reports, multiple car and home insurance quotes, and much more for you to explore. 

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