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If you live with your partner, or you are planning on living together (whether as a heterosexual or same sex couple), you can enter into a cohabitation agreement also called a life partnership agreement. This can set out the ownership of existing assets (including property), what your financial responsibilities will be towards each other and how savings and jointly owned assets will be distributed should you later split up. In South-Africa it is also commonly used as part of a spousal visa application.
More couples now choose to live together before they get married, enter a civil partnership, or choose never to have their relationship legally recognised at all (by marriage or civil partnership). However, cohabiting does not entitle you to the same legal rights as marriage as it does not bind you together in the eyes of the law. For couples who are living together or have shared assets, this can lead to issues and uncertainties upon separation.
The cohabitation agreement sets out who owns what and in what proportion in the relationship and covers elements such as the following:
Although each cohabitation agreement is different and depends on your individual circumstances, there are a few key elements you should think about before seeking advice from a attoney:
Many couples are under the assumption that, if they are living together but unmarried or not in a civil partnership, then ‘common law marriage’ protects them in the same way as married couples.
However, no such law exists. Couples who live together do not have the same legal rights as married couples or those in a civil partnership, so this assumption is a myth.
A cohabitation agreement can provide peace of mind in your relationship. By coming to an agreement before or whilst you are living together, you will:
It protects both of you in the event of a relationship breakdown. It can operate in an equivalent way to a prenuptial agreement by making it clear how the pre-owned assets of one partner are to be shared with the other if you should break up in the future or if the property is owned in the sole name of one party and another party moves in. It can make it clear for both partners that contributions towards utility bills by one partner may not entitle them to a share of the property itself if you should break up.
As cohabitees, if you own property jointly, the starting point is that it is divided 50/50 on separation as joint tenants, even when one partner contributed much more to its purchase, unless you make a written agreement to declare different shares, percentages. T
To make sure that your joint intentions on setting up home together are enforceable and will provide the protection you each seek, a cohabitation agreement is vital.
A cohabitation agreement is a legal document, enforceable by the court if it is properly executed.
Our experienced attorney/notary public is an expert in this field and have helped hundreds of couples with the drafting and notarisation of a cohabitation contract. We o draw up a cohabitation / life partnership agreement that are tailored to your own individual needs. To get started simply apply online using the form on this website.
Yes. If the parties want to have the contract to be binding to third parties e.g. work benefits or a spousal visa.
For your cohabitation agreement to be valid, the following conditions must apply:
We charge all-inclusive fee of R1200 for the drafting and notarial attesting of an antenuptial contract. We have already assisted hundreds of couples using our easy online application process.
Whilst you can access templates online, the agreement should ideally be drawn up by an experienced notary and be specific to your needs. a template may miss something out. Online templates are usually extremely basic and not up to date. Further the contract needs to be signed before a Notary Public who will attest to your identity and signatures to have any benefit or legal recognition from third parties like spousal visa applications and medical and pension benefits.
Yes, a cohabitation agreement can be modified once it’s been created. It is advised that you keep it updated as your relationship changes or if anything significant happens in your relationship. Key reasons may include the following:
You plan to get married or entering a civil partnership.
Changes must also be signed before a Notary Public to be recognised by third parties.
The parties can sign a deed of cancelation. A notarial cohabitation life partnership agreement must be cancelled before a Notary Public.
As the law in South-Africa currently stands, the only way to achieve the legal rights of a married couple is to get married or enter a civil partnership. This is not changed even if you have lived together for an extended period, have children, or have bought a house together.
Without marriage or a civil partnership, you have no claim for maintenance for yourself (you do for children), no claim against any assets in the other party’s sole name and no entitlement to property or pension or medical benefits.
In an exceedingly small percentage of vases our law will recognise a so-called "universal partnership". This will involve substantial costs and civil litigation to prove the existence of and the result will by no means be guaranteed.
Important Take Away! - Dispelling the myths.
If you cohabit rather than getting married or entering a civil partnership and do not have a cohabitation agreement, you have:
Outside a marriage or civil partnership, the law does not recognise a relationship in any meaningful way. This means that if the relationship breaks down, there is extraordinarily little protection for the weaker partner.
If married couples divorce or there is a dissolution of a civil partnership, both partners have a legal right to maintenance and their share of assets. If you are cohabiting, you do not have any of these rights, regardless of how long you have been together and whether you have children.
Currently, the only way for cohabiting couples to gain legal protection in the event of a break-up is to be married, in a civil partnership or signatories of a cohabitation agreement.
Under South-African, cohabiting couples do not have the same legal rights as married couples or those in a civil partnership.
A cohabitation agreement can grant cohabiting couples legal protection, allowing them to legally define and protect their share of the property should they decide to end the relationship.
If you and your partner are living together with no intention of getting married or entering a civil partnership soon, this is the time when you might typically enter into a cohabitation agreement.
However, if you are planning to do either soon or engaged or actively planning your wedding or civil partnership, you would enter a antenuptial contract / agreement.
Note that you should enter an antenuptial contract before getting married and there are specific timeframes for the registration of a prenuptial agreement. Therefore, you should start the process sooner rather than later.
Both agreements are available to unmarried couples or those not in a civil partnership but there are a few key differences.
If you’re worried about what will happen if you or your partner dies while you are cohabiting, it’s important that you outline your wishes in your cohabitation agreement and also ensure that both parties have a valid will that reflects their wishes regarding assets.
NB: Making a will
If you are intending to cohabit as an unmarried couple or a couple not in a civil partnership, it is essential that you each make a will if you want your partner to inherit your estate if you die.