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.

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