Living together? You really should have an agreement.

There are many people who choose to live together as if they were married without actually getting married.  This has been referred to as a “common law marriage” and there are invariably different expectations and interpretations of such a relationship.  I was recently consulted in a matter where a man and a woman split up after living together for a few years and the woman demanded half of what she perceived to be a joint estate.

This notion of a “common law marriage” is a fallacy in South African law.  The term used for such a situation is “cohabitation” or even a “domestic partnership”.  Unfortunately (or fortunately, depending on your perspective), parties cohabiting with each other do not automatically accrue rights to a share in each other’s estates should they part ways.  When people decide to live together, their property, debts, obligations and rights which comprise their respective estates, remain separate.  As often happens when people live together, they contribute from their estates to the joint household and the lines between their estates become blurred, especially where both parties own certain assets jointly.  This is one of the reasons why attorneys advising parties who live together to enter into a cohabitation agreement.  According to Bregman Mitchley Attorneys:

In the event of death or breakup without a cohabitation agreement, you and your partner may be treated as legal strangers. Such agreement protects parties from unnecessary costs and litigation should their cohabitation break down.

In an age when one out of every three marriages fails, parties with a trail of prior relationships and marriages behind them may prefer to cohabit or live together, rather than marry.

The concept of cohabitation includes any two partners who have integrated their residence, property and daily lives. It is often seen as a starting point for people headed toward marriage, but can also be an ultimate arrangement for couples who don’t want the social, personal and legal commitment that marriage represents. There are numerous other reasons individuals may cohabitate …

A helpful way to think about it is, ironically, in terms of a marriage.  When parties marry they usually enter into an ante-nuptial contract where they marry out of community of property.  The purpose of this contract is to regulate what happens to each party’s estate in the event the marriage comes to an end.  If you choose to live with your partner without getting married, it is prudent to consider the implications of a breakup as well as how your respective estates may change over time.  There are too many stories of people who breakup and who have to try untangle their estates in addition to coping with the heartbreak that inevitably accompanies the end of a relationship.  Just as is the case when two people marry, you hardly want to have to cater for the end of your relationship just when you are really getting started by preparing a cohabitation agreement but this it is far better to prepare such an agreement and never need one than not prepare one and find yourself embroiled in a heart-breaking dispute at the end of the relationship.

Jacobson Attorneys is associated with Bregman Mitchley Attorneys.  I recommend Bregman Mitchley Attorneys for family law matters.  Should you require assistance, contact Roy Bregman at 011 646-0335 or by email at roy@roylaw.co.za.

Technorati Tags: , , ,

Paul
Enthusiast, marketing strategist, writer, and photographer. Passionate about my wife, Gina and #proudDad. Allergic to stupid

26 Comments

  1. I just need info on something please. My fiance and I lived together for almost 3 years. I had our baby 8months ago. He had several relationships that I found out 4 months ago. We’re seperated now and I want to know what am I entitled too. He promised me a good life, he didn’t want me to work and apparently he received money from a trust 2 weeks ago. Am I entitled to something? Maybe a house for my son and I?I don’t have money to see an attorney please just tell me if I have a case then I’ll know what to do.Thank you

  2. I just need info on something please. My fiance and I lived together for almost 3 years. I had our baby 8months ago. He had several relationships that I found out 4 months ago. We’re seperated now and I want to know what am I entitled too. He promised me a good life, he didn’t want me to work and apparently he received money from a trust 2 weeks ago. Am I entitled to something? Maybe a house for my son and I?I don’t have money to see an attorney please just tell me if I have a case then I’ll know what to do.Thank you

  3. I just need info on something please. My fiance and I lived together for almost 3 years. I had our baby 8months ago. He had several relationships that I found out 4 months ago. We’re seperated now and I want to know what am I entitled too. He promised me a good life, he didn’t want me to work and apparently he received money from a trust 2 weeks ago. Am I entitled to something? Maybe a house for my son and I?I don’t have money to see an attorney please just tell me if I have a case then I’ll know what to do.Thank you

  4. Good Day!!!!

    My mother live with her friend for nearly 15 years she didnt work he treats her bad I just want to know what her rights are is she entitle to anything or what if she dont what to get out empty handed?

    Regards Paul

  5. Good Day!!!!

    My mother live with her friend for nearly 15 years she didnt work he treats her bad I just want to know what her rights are is she entitle to anything or what if she dont what to get out empty handed?

    Regards Paul

  6. Hi Paul

    It is difficult to answer your question without all the facts. What I suggest is that your mother speak to a family lawyer and see which options are available given her specific circumstances.

  7. Hi Paul

    It is difficult to answer your question without all the facts. What I suggest is that your mother speak to a family lawyer and see which options are available given her specific circumstances.

  8. Hi Paul

    It is difficult to answer your question without all the facts. What I suggest is that your mother speak to a family lawyer and see which options are available given her specific circumstances.

  9. hi there

    i just need some info regarding a few thing.
    living together for some time but not married-this has been refered to common law marrage.
    does is also stand for relationship of the same kind?

  10. hi there

    i just need some info regarding a few thing.
    living together for some time but not married-this has been refered to common law marrage.
    does is also stand for relationship of the same kind?

  11. hi there

    i just need some info regarding a few thing.
    living together for some time but not married-this has been refered to common law marrage.
    does is also stand for relationship of the same kind?

  12. Hi Luzanne

    I am not all that familiar with the current law but I believe this would be regarded as a civil union. If you are interested in exploring this further I can suggest you take a look at http://www.roylaw.co.za and perhaps even speak to Roy if you need specific help. He is based in Johannesburg.

  13. Hi Luzanne

    I am not all that familiar with the current law but I believe this would be regarded as a civil union. If you are interested in exploring this further I can suggest you take a look at http://www.roylaw.co.za and perhaps even speak to Roy if you need specific help. He is based in Johannesburg.

  14. Hi Luzanne

    I am not all that familiar with the current law but I believe this would be regarded as a civil union. If you are interested in exploring this further I can suggest you take a look at http://www.roylaw.co.za and perhaps even speak to Roy if you need specific help. He is based in Johannesburg.

  15. Hi there,
    I have been living with my girlfriend for 5 years now, however do not plan to get married soon, I own several properties ( all exclusively paid by myself ) and have been particularly adamant in keeping my property portfolio seperate from any of her expenses. Win I incurr any loss if in the unfortunate event of our break up? Just interested in my legal rights.

  16. Hi there,
    I have been living with my girlfriend for 5 years now, however do not plan to get married soon, I own several properties ( all exclusively paid by myself ) and have been particularly adamant in keeping my property portfolio seperate from any of her expenses. Win I incurr any loss if in the unfortunate event of our break up? Just interested in my legal rights.

  17. Hi there,
    I have been living with my girlfriend for 5 years now, however do not plan to get married soon, I own several properties ( all exclusively paid by myself ) and have been particularly adamant in keeping my property portfolio seperate from any of her expenses. Win I incurr any loss if in the unfortunate event of our break up? Just interested in my legal rights.

  18. Hi Dirk

    You should be fine but just the same I recommend that you have a cohabitation agreement drawn up to deal with these sorts of issues.

    If you are particularly concerned about a possible liability (it can happen depending on your circumstances) I also recommend that you consult with an attorney more fully.

  19. Hi Dirk

    You should be fine but just the same I recommend that you have a cohabitation agreement drawn up to deal with these sorts of issues.

    If you are particularly concerned about a possible liability (it can happen depending on your circumstances) I also recommend that you consult with an attorney more fully.

  20. Hi Dirk

    You should be fine but just the same I recommend that you have a cohabitation agreement drawn up to deal with these sorts of issues.

    If you are particularly concerned about a possible liability (it can happen depending on your circumstances) I also recommend that you consult with an attorney more fully.

  21. Paul,I have lived with my fiance prior our wedding. 30 days prior the schduled wedding she broke of the engagement. She continued to live with me for anothter 7 mnths before moving out. We agreed that I would increase my bond to pay for the rings, wedding, honeymoon, and alteration, upgrades to the house… She contributed to the payment and budget monthly but stopped when she moved out. Can I expect her to contribute further to this situation ? She payed an amount in Dec …this not acknowlegement of guilt?. Can I get her to pay for her ring?.

  22. Paul,I have lived with my fiance prior our wedding. 30 days prior the schduled wedding she broke of the engagement. She continued to live with me for anothter 7 mnths before moving out. We agreed that I would increase my bond to pay for the rings, wedding, honeymoon, and alteration, upgrades to the house… She contributed to the payment and budget monthly but stopped when she moved out. Can I expect her to contribute further to this situation ? She payed an amount in Dec …this not acknowlegement of guilt?. Can I get her to pay for her ring?.

  23. Paul,I have lived with my fiance prior our wedding. 30 days prior the schduled wedding she broke of the engagement. She continued to live with me for anothter 7 mnths before moving out. We agreed that I would increase my bond to pay for the rings, wedding, honeymoon, and alteration, upgrades to the house… She contributed to the payment and budget monthly but stopped when she moved out. Can I expect her to contribute further to this situation ? She payed an amount in Dec …this not acknowlegement of guilt?. Can I get her to pay for her ring?.

  24. I’ve been in an 8 yr relationship with my ex-Fiancee. I moved in whith him with plans to get married and we stayed together at his flat for 3 years and had a son who’s 1&half yr now. Last year his family already met mine for my hand in marriage(lobola negotiations). We split up in Jan 2008 and he had bought a new house and moved into it alone and I remained in his flat with our son ‘for tghe interim’. His expectation is that I should find a place to rent because he wants to lease his flat out. My question are – Does he have a right to kick me out his flat. What are my rights/options in this situation. Am I entitled to his property according to SA Common Law.

  25. I’ve been in an 8 yr relationship with my ex-Fiancee. I moved in whith him with plans to get married and we stayed together at his flat for 3 years and had a son who’s 1&half yr now. Last year his family already met mine for my hand in marriage(lobola negotiations). We split up in Jan 2008 and he had bought a new house and moved into it alone and I remained in his flat with our son ‘for tghe interim’. His expectation is that I should find a place to rent because he wants to lease his flat out. My question are – Does he have a right to kick me out his flat. What are my rights/options in this situation. Am I entitled to his property according to SA Common Law.

  26. I’ve been in an 8 yr relationship with my ex-Fiancee. I moved in whith him with plans to get married and we stayed together at his flat for 3 years and had a son who’s 1&half yr now. Last year his family already met mine for my hand in marriage(lobola negotiations). We split up in Jan 2008 and he had bought a new house and moved into it alone and I remained in his flat with our son ‘for tghe interim’. His expectation is that I should find a place to rent because he wants to lease his flat out. My question are – Does he have a right to kick me out his flat. What are my rights/options in this situation. Am I entitled to his property according to SA Common Law.

What do you think?

%d bloggers like this: