Protecting Your Rights And Obligations: The Power Of Cohabitation Agreements In South Africa

In today’s evolving society, more and more couples in South Africa opt to live together in long-term domestic relationships without getting married. While cohabitation can be a wonderful and fulfilling experience, it’s essential to consider the legal aspects to protect your existing assets and safeguard your financial obligations. One effective way to do this is through a Cohabitation Agreement.

The agreement can be legally binding if signed and witnessed before a Notary Public.

Many people regard a Cohabitation Agreement as a taboo topic or action, but you don’t need to view it as unfavourable. If you want to learn more about Cohabitation Agreements, your best option would be to explore what a Cohabitation Agreement is, your legal rights as a cohabitating couple, what to include in the agreement, and how it differs from a civil marriage.

What Is A Cohabitation Agreement?

A Cohabitation Agreement, or a living together or non-marital contract, is a valuable written contract for unmarried couples in long-term relationships. Its purpose is to formalize legal responsibilities and safeguard rights during the relationship and in case of its termination.

This comprehensive document can cover vital elements, including living expenses, property ownership, debt management, and maintenance provisions during and after the relationship concludes.

What Are Your Legal Rights As A Cohabitating Couple?

It’s crucial to understand that cohabitating partners in South Africa don’t have the same legal rights and protections as married couples. Without a Cohabitation Agreement, the laws governing property and asset distribution that apply to married couples won’t apply to cohabitating partners, which could leave you vulnerable and unprotected if the relationship were to end.

What Aspects Can Get Included In A Cohabitation Agreement?

A Cohabitation Agreement can cover various aspects of your life together, offering flexibility and customization to suit your unique needs. Some essential components you can include are:

Property ownership and division;
Deposit on your home;
Shared responsibility for mortgage or rent;
Handling of household bills;
Management of bank accounts and finances;
Life insurance and pensions;
Distribution of assets if the relationship ends;
Payment of debts;
Care of pets;
Next of kin rights.

You may not include any immoral or illegal provisions in this agreement. Something to keep in mind when drafting your Cohabitation Agreement is that this document will only be binding upon yourself and your partner. It will not be enforceable on any third parties. If there are any disputes regarding the content of your Cohabitation Agreement, you may approach a court for assistance.

An important note is that a Cohabitation Agreement does not replace a Will. If you wish to leave your assets to your partner, you must state your wishes in your Will so there is no room for contention in the event of your death.

What Should You Include In A Cohabitation Agreement?

To make your Cohabitation Agreement comprehensive and effective, consider including the following elements:

Full Details: Include both partners’ names, addresses, and contact information to make the agreement more comprehensive.
Start Date: Specify when the Cohabitation Agreement becomes effective, typically when both partners sign it.
Previously Owned Property: Clearly define how individually owned properties will be managed and divided if the relationship ends, ensuring that each partner’s pre-existing assets get safeguarded.
Property Acquired While Living Together: Determine how jointly acquired assets will be shared or distributed if the relationship ends. This provision helps avoid disputes over property ownership.
Household Bills: Specify the responsibilities for shared living expenses, such as rent, mortgage payments, groceries, utility bills, and other household costs. Having an explicit agreement on financial contributions helps maintain transparency and fairness.
Termination Clause: Determine the circumstances under which the agreement will terminate, such as marriage or mutual agreement to end cohabitation.
Review Clause: Plan for regular reviews of the agreement to accommodate changes in your circumstances over time.

What Happens If Your Relationship Ends Without A Cohabitation Agreement?

If a cohabiting relationship ends without a Cohabitation Agreement, the distribution of assets and property can be challenging.

Without legal protections, each partner may retain the assets they initially owned, and any jointly owned property could be subject to litigation or divided according to the court’s discretion. This uncertainty could lead to emotional distress and financial loss for both parties.

How Do You Make A Cohabitation Agreement Legally Binding?

To make your Cohabitation Agreement legally binding in South Africa, it must meet specific requirements:

Document in Writing: Put the entire Cohabitation Agreement in writing. This step ensures clarity and prevents misunderstandings between both partners.
Voluntary Signature: Both partners must voluntarily sign the agreement, demonstrating their informed consent and commitment to its terms.
Witnessed: To strengthen the agreement’s validity, consider having it witnessed by an impartial third party who can confirm the authenticity of the signatures.
Notarization: It is advisable to sign and witness it before a registered Notary Public to ensure its legality. This legal professional will verify the identities of both parties and confirm their willingness to enter into the agreement.

Can You Make Updates To A Cohabitation Agreement?

You can update a Cohabitation Agreement to reflect changes in your relationship or personal circumstances. Reviewing and updating the agreement periodically or after significant life events like buying a property or having children is essential. Updating your agreement will ensure that it remains relevant and provides adequate protection.

Cohabitation Agreements Vs. Civil Marriages

While a Cohabitation Agreement offers legal protection for cohabitating couples, it’s crucial to understand that it doesn’t confer the same rights as a civil marriage. Civil marriages provide more extensive legal protection and benefits, such as spousal maintenance, inheritance rights, and pension benefits.

A Cohabitation Agreement is a powerful tool if you’re in a long-term domestic relationship in South Africa and wish to protect your property rights and interests. By creating a comprehensive and legally binding agreement, you and your partner can establish a secure foundation for your cohabitating journey.

If you are interested in learning more about Cohabitation Agreements or would like a professional to help you draft one with your partner, please get in touch with us at Burnett Attorneys & Notaries. We would gladly assist you in this endeavour.

Cohabitation Agreements In South Africa