Common Law Marriage – A Common Misconception

In South Africa, many people believe that simply residing together with another person establishes legal rights and duties between them. However, there is no legal recognition of domestic partnerships and no such thing as a common law marriage in South Africa. If two unmarried parties live in the same house for any period of time, neither of them will have a claim to any part of the other party’s personal estate. In early 2008, the South African legislature attempted to regulate the position of life partners in the form of the Domestic Partnerships Bill of 2008. This Bill makes provision for both registered and unregistered partnerships. However, it is still in its formulation stages and it remains to be seen how it will be implemented. Same-sex or heterosexual partners living together in a domestic partnership and conducting themselves in a form of partnership arrangement could therefore find a cohabitation agreement useful.

A cohabitation agreement is a contract, in terms of which couples can reach an agreement as to how they will conduct their living arrangements. In such an agreement the rights and responsibilities of both parties and the financial consequences of the relationship are set out, thus clarifying the expectations of the partners. For example, the agreement can provide for the division of joint property upon death of one of the parties or should the relationship fail, as well as for the payment of debts and the sharing of living expenses during the course of the relationship. In addition, cohabitation agreements can protect parties from unnecessary legal costs in the event of the dissolution of the relationship. These agreements are not enforceable by any persons other than the unmarried partners, and they are legally binding upon both parties as long as they contain no illegal or immoral provisions.

Should you require assistance with the drafting of a cohabitation agreement, one of our attorneys would be happy to assist you.


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