Cohabitation Contracts SA - All the Facts

What is a cohabitation agreement?

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.

What can a cohabitation agreement cover?

The cohabitation agreement sets out who owns what and in what proportion in the relationship and covers elements such as the following:

• Ownership of property
• Deposit on your home
• What share of the mortgage or rent you will pay
• How household bills will be dealt with
• Bank accounts and money
• Life insurance
• Pensions
• Assets such as cars, furniture, other property, jewellery
• Payment of debts
• Pets
• Next of kin rights
• Pension access, property title deeds and wills should also be considered.

What should be included in a cohabitation agreement?

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:

• Property owned before moving in together—if one partner owns property, a cohabitation agreement can agree for this to be kept separate and prevent the other partner from having a claim over it. However, if the partner who does not own the property makes contributions to the mortgage or carries out renovation work, they could have a claim to the property in the future, so this is something to look out for.
• Property bought while living together—if you buy a property while living with your partner and only one of you is named on the agreement, this will need to be addressed in the same way as above. If you are named as joint owners, you are both legally entitled to stay in the property if you should break up. You will need to think about what will happen to the jointly owned property upon separation – for example will it be sold?
• Household bills—if you and your partner are not joint owners of your home, or one of you contributes more than the other, one of you could agree to contribute to the mortgage but acknowledge that this will not give that person any claim over the property.
• Inheritance and wills—it’s important to remember that if you are not married or in a civil partnership, you will not automatically inherit each other’s estates if one of you dies. If you want to leave anything to your partner, you will need to draw up a will and keep it up to date.
• Independent legal advice—when drawing up a cohabitation agreement, you will both need to seek independent legal advice to ensure that it’s binding and there is no doubt as to what you are both agreeing to. By doing this, the court is much more likely to take notice of your agreement and put it into effect if you were to break up. There should also be disclosure of your financial situations. The document should be executed as a deed.

Why should I have a cohabitation agreement?

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:

• have a clear understanding of what your financial commitments are to avoid misunderstandings regarding your rights and responsibilities as you continue to live together, with regards to ownership of property
• avoid difficulties and disagreements if you split up
• have unambiguous evidence of your intentions should you have to go to court
  
  

Who does a cohabitation contract protect?

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.

Is a cohabitation agreement legally binding?

A cohabitation agreement is a legal document, enforceable by the court if it is properly executed.

How do I make a cohabitation agreement?

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.

Does a cohabitation agreement have to be signed before a Notary Public? 

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:

• You should both enter into the agreement freely and voluntarily
• The agreement should be set out in the form of a written contract 
• Each of you must sign the document
• You must keep the agreement up to date with any major life changes
• Must be signed before a Notary Public and a Protocol Number must be allocated for the cohabitation contract to be binding on third parties. 

How much does a cohabitation agreement cost?

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.

Can I legally draw up my own cohabitation agreement?

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.

Can a cohabitation agreement be modified after it is created?

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:

• The birth of children
• One of you becomes seriously ill
• One of you becomes disabled
• One of you is made redundant
• Your financial circumstances change significantly
• One of you receives a large inheritance

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.

How do we cancel a Cohabitation Contract?

The parties can sign a deed of cancelation. A notarial cohabitation life partnership agreement must be cancelled before a Notary Public.

Do cohabiting couples have the same rights as married people or those in a civil partnership?

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:

• no automatic rights to your partner’s property in the event of their death and no automatic entitlement to inherit their estate, even if you have children
• no tax reliefs or exemptions that spouses and civil partners may enjoy, including pensions

What are the differences between cohabitation and marriage or civil partnership?

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.

What is the difference between aa antenuptial/ prenuptial agreement and a cohabitation agreement?

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.

• A cohabitation agreement tends to be more flexible and decides on what happens to your assets if the relationship breaks down, including who owns what and in what proportion, making it clear how all property should be dealt with.
• A prenuptial, or pre-civil partnership agreement, is entered into before a marriage or civil partnership takes place and you must be planning it and know when it is going to take place. This agreement decides on your applicable matrimonial property regime and what will happen to your finances if the marriage was to break down. An antenuptial contract also protects you against the business risks and creditors of your spouse. 

What happens to a cohabitation agreement if one of us dies?

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.