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Estate Planning

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Estate Planning

Cohabitation or Common Law Marriage

Cohabitation or Common Law Marriage

Cohabitation or Common Law Marriage isn’t what people think it is. Two people start living together – usually in a domestic and sexual relationship – and expect that after a certain amount of time has passed, say several years, they think they can actually benefit from the Cohabitation Relationship and that they have certain rights - as if it had somehow become a Universal Partnership or a form of Marriage. This is not true.

Simply put, there is no law, as yet, in South Africa that legalises the right of Parties in a Cohabitation Relationship – or, the misnomer of a Common Law Marriage.

Men and women or same sex couples living together with no formalisation through any documentation do not have the benefits or responsibilities of married couples because their relationship is not recognised by the Law.

More and more people are living together with the belief that the old wives’ tales of after five or so years it becomes legal and you can claim benefits and rights, is correct whereas there is no truth in it.. All too soon they discover that when the music ends they are sadly alone and not provided for: they have no rights and no documentation to enforce anything. So, irrespective of the duration of these relationships there are no benefits other than the pleasure of the time you had together. When it comes to an end you move on with nothing other than what you are left with.

If one of the Partners dies without a valid will, the other partner has no right to inherit. Further, one Partner has no right to maintenance from the other Partner after they split up.

The Partners may not open a joint bank account, though one of them may have a bank account and give the other one co-signing powers. However, the Partner in whose name the bank account has been opened remains liable for any monies owed to the bank in cases of overdraft or loan.

Regarding leased property, a joint lease is signed by both Partners and it means that both Parties will be liable jointly for the rent but each of the Partners is only liable for their share of it.

However, if the wording on the lease agreement states that they are jointly and severally liable then they each may be liable for the whole amount of rent. Thus, if the relationship ends before the lease expires; the Parties in the cohabitation relationship must decide which one of them is going to remain in the home as they both have an equal right to reside on the premises of which they are legally tenants.

Once they make their decision and one of the Parties remains on the property; if that Partner defaults on rent payments, the Lessor will have a claim for full payment against both of the Parties. This is because when the Partners make these decisions between themselves that one of them only will be liable for rent, that agreement is not valid or binding except between the two Partners themselves; so the Lessor is legally entitled to hold both of the Partners liable for payment of the rent.

In the case where only one Partner signs the Lease Agreement, the other (non-tenant) Partner does not have any rights or responsibilities and is consequently not liable to pay rent.

Yet, that (non-tenant) Partner has no security of tenure so, if the relationship is terminated, they can be evicted by the other Partner (the legal tenant). If the Lease Agreement has a clause forbidding occupation of those premises by any other person other than the legal tenant, the Lessor has the right to terminate the Lease if they discover that the tenant is cohabiting or sub-letting.

When the relationship comes to an end, as there is nothing legally binding between the two Partners, there is no reciprocal duty of support and there can be no enforceable right to claim any maintenance (unless there is a Cohabitation Agreement in place by which maintenance could be regulated) – whether or not the relationship ended through choice or death or unlawful death of one of the Partners.

Neither of the Cohabitant Partners can reclaim any funds that they may have spent on maintaining their Partner during the relationship, unless a case can be made for unjust enrichment. Equally, if there were any donations made between the Parties in the Cohabitation Relationship, they cannot be reclaimed by the donor.

All things considered, all the excitement, comfort and reward of a non-formalised Cohabitation Relationship lasts only for the duration of the relationship which, once ended leaves the Partners with nothing but memories – which wonderful though they may be, don’t pay the bills, feed the babies or do anything else for the now single ex-Partner.

If you are living together, or planning to, it makes the best sense to see a Family Law Attorney and have them draw up a Cohabitation Agreement for you both – that way, whatever happens, you have some form of protection.Not so much 'til death do us part' but more of 'when we decide to part'.

Take the next step to resolving your Cohabitation or Common Law Marriage issue by booking a Consultation via www.divorceattorneys.co.za and we will be in touch.