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THE IMPORTANCE OF A COHABITATION AGREEMENT

Don’t be naïve when living together, be alert!


In an age where many marriages fail, young couples now resort to living together without getting married. In legal terms this is referred to as a life partnership.


The legal definition of a life partnership

The term "life partnership" can be used in a wide or a narrow sense. In the wide sense, a life partnership includes:


  1. A relationship between two people who, regardless of their sex, live together in a permanent union, which is similar to a marriage but without ever going through a marriage ceremony even though they are not prohibited by law from doing so in terms of civil or customary law or entering a civil union with each other and;

  2. A relationship between two people who live together after having entered a "marriage" that is not regarded as valid by South African law or between two people who live together because they are prohibited from marrying one another.


These kinds of relationships are usually found in the context of marriages that have been entered into according to the doctrines of certain religions that would not have complied to applicable marriage legislation and therefore end up being described as "purely religious marriages". They may also be encountered where a person is involved in a life partnership with one person while being a party to a subsisting civil marriage or civil union with another person.


A life partnership in the narrow sense refers to a permanent life relationship, similar to marriage, consists of two people who, even though they can legally get married, they just live together without:

  1. Having ever attempted to marry one another in terms of the Marriage Act, customary law, or civil union;

  2. Having entered a purely religious marriage with one another.

A life partnership in the narrow sense is also referred to as cohabitation. This is when an unmarried couple (same sex or opposite sex couple) lives together in a long-term relationship that resembles a marriage, and they share an emotional, physical, and financial relationship just like a married couple. Under the current law, there is insufficient legislation that protects cohabitants contrary to how married couples are protected.


The good news is that couples can protect themselves by concluding a cohabitation agreement that will be invaluable if the parties decide to terminate their relationship. This article will take a closer look at these options in more detail.


How are couples protected when they cohabitate?

Couples can protect themselves by concluding a Cohabitation Agreement. It is preferable that this document is drafted by a family law practitioner. It sets out the rights and obligations of the couple during and after the relationship has ended. For example, if a cohabiting couple decides to purchase or lease a house, it is better to register it in both parties’ names. The contents and nature of a cohabitation agreement will depend on the needs of the parties. It would normally cover the following aspects:

  1. Commencement and duration of the relationship

  2. Assets forming part of the universal partnership

  3. Assets to be excluded from the agreement

  4. Acquisition of immovable property or business during the partnership

  5. Debts owed to creditors by the parties

  6. Joint property

  7. Division of property upon termination

  8. Consequences of termination of this agreement

  9. Breach of the agreement

  10. Disputes

Legal protection of cohabitants from legislation

There is some legislation that places cohabitation on par with marriage:


Cohabitation is recognised under the Domestic Violence Act.


  • The Medical Schemes Act 131 of 1998 defines a dependant to include a "partner".

  • In terms of the Income Tax Act and the Estate Duty Act, cohabitants are treated as spouses for the purposes of tax legislation, and the word "spouse" is defined to include a permanent same-sex or heterosexual relationship.

  • Either partner in a cohabitation relationship may name the other as a beneficiary in a life insurance policy. The nomination must be clear, because a clause in an insurance policy that confers benefits on members of the insured’s "family" may cause problems. If a policy, for instance, a car insurance policy, covers/excludes passengers who are members of the insured’s family, this provision does not operate to the benefit/detriment of the insured’s partner.

  • The law does not distinguish between married and unmarried parents regarding the obligation to maintain children. Decisions regarding care and contact are based on what is in the best interests of the child. Children are protected if the couple is not married, since both biological parents are responsible for the maintenance of their children. The father and mother are both still liable for maintenance if the couple splits up. This will not apply to same-sex couples, as both cannot share a biological link with the child.

  • A domestic partner may receive pension fund benefits as a nominee. A domestic partner may also receive pension benefits as a factual dependent if he/she qualifies as such under the definition of "dependant" in the regulations or conditions of that fund. A domestic partner will, however, not be entitled to their partner’s pension interest on termination of their relationship.

  • Under the South African Compensation for Occupational Diseases Act, 1997, a surviving domestic partner may claim for compensation if their partner died as a result of injuries received during the course of work if at the time of the employee’s death they were living as "husband and wife".

The negative consequences in the absence of a cohabitation agreement

If cohabitants fail to conclude a cohabitation agreement, they will have difficulties in getting legal protection. There will be no legal duty of support or maintenance even after death. Bwanya v Master of the High Court, Cape Town, and Others (20357/18) [2020] ZAWCHC 111 is a recent Constitutional Court case that illustrates the difficulties that can be experienced in the absence of an agreement, as it led to litigation in the Constitutional Court.


Because a formal marriage ceremony is not concluded, individuals in life partnerships do not benefit from laws that apply to married people. This was argued by the Women's Legal Centre, which appeared before the Constitutional Court as one of two amici curiae in support of an application by domestic worker Jane Bwanya. She wanted the court to confirm an order by the Western Cape High Court that the Intestate Succession Act is unconstitutional, because it does not allow for surviving partners in opposite-sex life partnerships to inherit from their late partners' estates.


A TimesLIVE report notes that the court, which reserved judgment, heard that Bwanya was swept off her feet" by a relatively wealthy businessman, Anthony Ruch, in 2014. They were in a permanent life partnership until Ruch (57) died in April 2016 – before the couple could get married. He did not leave a will, and the heir he had appointed was his mother, who had died in 2013.


The deceased estate comprised, among other things, R6.7-million from the sale of his Camps Bay house by the executor. Bwanya wanted to claim from the estate as a surviving spouse, but the executor rejected her claim, sparking the High Court action. However, before the challenge was heard, Bwanya reached a settlement with the executors of the estate and she received R3-million in full and final settlement.


Counsel for Bwanya, Robert Stelzner SC, said the case was about benefits, which were not extended to survivors of heterosexual life partnerships, but were available for survivors of same-sex life partnerships. "This has created a differentiation between same-sex life partners and heterosexual life partners." He said a survivor in a same-sex life partnership could inherit under the Intestate Succession Act, while a survivor in the opposite-sex life partnership cannot inherit.


Mushahida Adhikari, counsel for the second friend of the court, the Commission for Gender Equality, said the case was about the constitutional place of couples who do not marry, whether by choice or not. She said the Act differentiates between persons based on marital status, gender and sex, and sexual orientation and said the differentiation amounted to discrimination. Counsel for the Minister of Justice, Karrisha Pillay, said the Minister will abide by the decision of the court.


The only remedy available if the relationship ends without a cohabitation agreement is if they can prove the existence of a Universal Partnership.


A Universal Partnership is a type of life partnership. It is a partnership in which the partners agree to share all current and future profits acquired individually or collectively from commercial undertakings or otherwise. This partnership can be created expressly or tacitly. The existence of a universal partnership can be concluded if the facts and conduct of the parties indicate that it is more probable than not that the agreement was in fact concluded.


A life partner who seeks to prove the existence of a universal partnership must prove not only that the parties were cohabiting "as husband and wife", but also that they were moreover partners for the purposes of the law of partnership. The mere fact of cohabitation, therefore, does not introduce any unique requirements. The three essential ones applicable to partnerships in general must still be proved as well.


The essential requirements that need to be proven as mentioned above, according to the most recent statement of the law by the Supreme Court of Appeal in Butters v Mncora 2012 (4) SA 1 (SCA) case are:


  1. The aim of the partnership must be to make profit

  2. Both parties must contribute to the partnership in some form or other through their labour, capital, or skill

  3. The partnership must operate for the benefit of both parties

  4. The contract between the parties must be legitimate.

These requirements can be very difficult to prove in court, which is why it is better to have a cohabitation agreement drafted for you by an attorney. Going to court to prove the existence of a universal partnership is expensive and time consuming as well.


Termination of a cohabitation relationship

In practical terms, a controversy about the existence of a universal partnership arises only when it ends. It can be terminated whenever the partners or one of the partners decide they do not want to continue with the relationship anymore. There is no need for a divorce procedure to be followed or for a court order, for there were no legal implications from the beginning unless one of the partners need to prove the existence of a universal partnership. The case can then be taken to court, so that it can be decided. To avoid the time consuming and costly court procedures, a cohabitation agreement then becomes essential to protect your relationship and to determine the consequences at the termination of the relationship.


In a nutshell, enter a cohabitation relationship at your own risk, but be alert because even with all these provisions discussed above, it is hard to prove in court the existence of a universal partnership.


How can RBA help?

We can assist cohabiting partners by drafting a Cohabitation Agreement for them that will cover the aspects mentioned above depending on your unique circumstances. The agreement may be entered into at any point during the relationship, prior to the termination thereof. It is also advisable that a Will be drawn up to govern the succession of the parties.


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