Cohabitation Agreements

In South African law common law marriages (a common misconception in South Africa, is that common law marriages exist this however is not true. It does not matter how long a couple may live together for, their cohabitation does not in fact create any legal rights or duties between them this is an important factor to note), domestic partnerships and couple who live together are not considered to be legal relationships. This is where the term cohabitation arises from. A definition of cohabitation is as follows “the state of living together and having sexual relations without being married to one another”. In cohabitational relationship, there are no laws that regulates the rights of these parties. In more simple terms men and women / couples of the same gender who live together do not have the same rights and duties that applies to couples who are married. This is where cohabitation agreements come into place as it provides legal protection, it plays a vital role in securing and protecting one’s rights in a relationship. To discuss this matter in greater detail a Cohabitation Agreement is simply a contract that is entered into by two parties that regulates a couple’s obligations during the length of their relationship and sets out the consequences should the relationship dissolve. A Cohabitation Agreement is alternatively known as Domestic Partnership Agreements and in some ways is similar to an Antenuptial Contract.

Family relationships such as parent, children, husband and wife, generate duty of support. Common law has been adapted to protect contractual rights of support in the same way as the common law of duty of support. In the case of Amod//Multilateral Motor Vehicle Accident Fund Commission (Commission for gender equality Intervening) 1998 (4) SA 735; 1998 (10) BCLR 1207 the court recognized a contractual right to support stemming from marriage in terms of Islamic law for purposes of a defendant’s action. And in Du Plessis // RAF, (2003) ZASCA 86 the common law action by a spouse for loss of support against the wrongdoer who unlawfully kills the other spouse , was widened to partners in a same sex permanent life relationship similar in other respects to marriage who had tacit undertaken reciprocal duties of support.

Entering into a cohabitation is quite the norm into todays society. A cohabitation sets out the living arrangement and regulations regarding the following aspects: finances during the length of the relationship, the division of the property, goods and assets gained should the termination of the relationship occur and lastly maintenance. The above-mentioned aspects and contents set out in the agreement will differ from party to party as everyone’s needs is different. Cohabitation agreements are most valuable for couples who are in a long-term relationship where marriage is not considered, this is an excellent way to plan for the future and to avoid financial and emotional trauma.

To outline the contents of the Cohabitation Agreement in more detail. Financial arrangements, during the length of a relationship, the cohabitation agreement will stipulate who will pay for specific things in the household and will stated who is responsible for certain living expenses. Points such as who will be responsible for paying things like insurance, entering into credit agreements and most importantly who will be paying for debts once the relationship comes to an end. It is important to note that banks in South Africa do not allow joint bank accounts for partners in a cohabitational relationship however a cohabitee may open an account on behalf of his or her partner, with the other partner having signing powers over the account. A partner whose name the bank account is opened under is liable to the bank to pay off debts incurred in the event that it does occur, this partner is also legally entitled to funds in such account.

Property which consist of immovable and movable is another factor to be considered, a partner may make an Application to the court for an order for the division of the property of another partner in a fair manner. Furthermore, this party will have to prove to the court that she or she had in fact contributed to the maintenance and upkeep / added value or increase in the other partners separate property during the length of the relationship. Property acquired prior to the relationship, property that is acquire before the existence of a relationship will belong separately to the purchaser separately and no community of property will be established. Property that is acquired before the commencement of the relationship is also not subjected to the operation of the Insolvency Act. Property that is purchased by the purchaser will belong to that person, bearing in mind that the title deed is in his or her name. in some cases, the purchase of a property can be purchased on the cohabitee’s behalf. The onus is on the cohabitees to prove that he or she gave his or her partner to proceed with this transaction. Another factor to note that donations made between cohabitees ca not be claimed back in this respect. The common home / leased property in these cases are based on the rights and duties of tenants and landlords are regulated by a lease agreement and the common law. Cohabitation should not have the effect of making the lease agreements negated due to immorality. In this regard the rights of the cohabitant will be influenced by the fact of whether there is a joint tenancy lease or whether it is a sole tenancy lease.

Children and step children in this aspect or if you have or are planning to have children , there will be clauses where one partner is expected to support the other party during the relationship and or if such partner is unemployed or is at home to care for the minor child / children born of the relationship. When it comes to child custody and child support in these cases the judge may or may not consider with the terms that you have added to your agreement. when dealing with children from other relationships, the court does not generally look at your or your partners rights to custody and visitation. The court is obliged by statutes to protect the best interests of minor children, normally those statutes do not recognize custody or visitation rights for non-biological parents.

Adoption by unmarried or homosexual / lesbians couples, the Child Care Act states that for the purpose of adoption of children by single or divorced individuals the act will amended. In the judgment in Du Toit’s case, the Constitutional Court allowed partners in a permanent same sex, life partnership to adopt jointly.

In other cases, relating to same sex couples in the case of Langemaat // Minister of Safety and Security the exclusion of a same sex partner from medical aid benefit was successfully challenged. This resulted in the Medical Aid Scheme Act currently requiring medical schemes to show upon registration and that they will not arbitrarily discriminate against people on several grounds including sexual orientation.

In cases where the common home is co-owned by the cohabitees, where the title deed is in both names of the cohabitees, the partners are then regarded as joint legal owners of the property. The relevant shares that the parties acquire can be stated in the cohabitation agreement and in the title deed. The co-owners are entitled to share the profits equally should the property be sold, or the relationship is dissolved.

Cohabitation and death, this is another important fact to consider while in a cohabitational relationship. Domestic partners have no right to intestate succession regardless of the number of years that they have lived together. A partner in a cohabitational relationship will not be regarded as an heir or dependent. The Intestate Succession Act of 1987 states clearly that in situations where there is no valid will, the beneficiaries will for example be a spouse and decedents in the event that their no descendants or spouses the estates shall devolve around more distant member of the party’s family. In cases where the surviving partner is not named in a will, he or she will have the dauting task of proving to the court that he or she did in fact contributed to the joint estate. Many problems may occur if the partner who has died, had not previously divorced their former spouse, when this occurs the first spouse has leverage to proceed and claim the entire estate.

Intestate succession if a partner leaves behind a will the estate will be passed in terms of the will.  A provision can be made to include a cohabitee, and, in some instances, provisions can be made to disinherit a spouse and even children. A cohabitation cannot govern succession by means of a pactum successorium. The Wills Act 7 of 1953 s 2D (1) (b) states that unless the context indicates that illegitimacy “shall be ignored “in determining the relationship between parties for the purpose of a will. This has the effect that any reference in a will to “my children” by either a father or a mother will include illegitimate children. If a joint will be made referring to “our children” that will only include children born from the union of the testors.

Legislations is still relevant to parties that have entered into a cohabitational relationship. For instance, the Domestic Violence Act considers persons who are cohabiting and are therefore not married to be in a domestic relationship, there’s parties may approach the domestic violence court for legal assistance in the event that their significant other commits a violence hinnies act. Cohabitational relationships are extremely difficult to navigate when it comes to insolvency. In Section 21(13) of the Insolvency Act states the assets incurred with the cohabitation will be dealt with in the same way as those who are married to one another in the event that a party is sequestrated. The Medical Schemes Act 13 of 1998 describes a dependent to include a “partner”. In other acts such as the Income Tax Act and the Estate Duty Act, such cohabitants are considered or referred to as spouses (this applies to couples who are of the same gender) only for the purpose of taxation legislation.

Cohabitation Agreements are put into place to prevent further complications when entering into a relationship and can provide a sense of security as well as saving you and your partner from emotional distress and ensures a civil ending of a relationship should it dissolve.

If a party can prove to the court that there has been a universal partnership they can claim against the assets of the relationship. To prove this and comply with legal aspect of it the court will look at the following:

  1. The main aim of the relationship must be able to make a profit
  2. Both partners must contribute to the enterprise
  3. The partnership must operate for the benefit of both parties

In this case of Butters// Mncora (2012) (4) SA 1 (SCA). In this case the court founded that there did not have to be a formal agreement and that a tacit agreement may be established by the conduct of these parties. Moreover, the court furthermore found that it is not necessary for the partnership to consist of a commercial undertaking.


In conclusion the laws of South Africa still does not recognize cohabitational relationships as legal binding relationships. There for it is necessary for the parties to take caution when entering into relationships by preparing the right documentation, to protect both their rights during their relationship.