A relationship where two unmarried adults live together and conduct their relationship like a married couple. Many people cohabit, but unfortunately, cohabitation is currently not yet legally recognized, and does not have legal protection.

Cohabitation, sometimes called common law marriage or a ‘vat-en-sit’ relationship is a relationship where two unmarried adults live together and conduct their relationship like a married couple. Many people cohabit, but unfortunately, cohabitation is currently not yet legally recognized, and does not have legal protection.

There is also a wrong assumption that if you stay with your partner for a certain period or if you have children with your partner and stay together, your relationship will automatically be regarded as that of husband and wife and on its dissolution, you will be entitled to certain benefits. The truth is, there is no such thing. If you live with your partner but are not married, the law will regard you as boyfriend and girlfriend. Accordingly, you will not be entitled to the same benefits to which married spouses are entitled.

Difference between cohabitation and marriage

The major difference between cohabitation and marriage is that marriage is legally protected and cohabitation is not.

Examples of the difference between cohabitation and marriage

Duty of support

As soon as you get married, you are entitled to be supported by your spouse and are also obliged to support him or her, depending on your respective means and needs. This reciprocal duty of support exists regardless of whether you are married in community of property or not. This does not apply to cohabitation relationships. The couple do not have any legal right to claim support from each other.

If cohabitants want to get support from each other, they have to conclude a cohabitation agreement whereby they both agree that they will support each other or that one of them will support the other.

Maintenance after death

If one spouse dies, the other spouse can claim maintenance from his or her deceased estate. In a cohabitation relationship, a partner has no right to make a maintenance claim when the other partner has died.

In a marriage, when a spouse dies without leaving a will, the surviving spouse will be a beneficiary in the estate of the deceased. In a cohabitation relationship, a partner will inherit only if he or she has been named as a beneficiary in the deceased’s will. If the deceased did not make a will, the estate will go to the dead partner’s blood relatives.

Termination of the relationship

When you are married you are entitled either to a half share of the joint estate of you and your spouse or a share in the accrual, unless the marriage is out of community of property without application of the accrual system. In a cohabitation relationship, you leave the relationship and those assets acquired by you during the relationship. If you and your partner disagree about which assets you are entitled to, you may have to prove which assets are yours. This can be difficult, especially if the relationship has been a long one.

Rights of cohabitants

  • Cohabitants can include each other in their medical aids provided that the rules of the medical aid allow this.
  • They can include each other as beneficiaries under insurance policies or as dependants under pension funds.
  • They are exempt from paying donations tax if they make a donation to each other.

Be alert

Say, for example, you are a woman and you take on the role of wife. You clean the house, wash clothes, and cook for your partner. Upon the termination of the relationship, you will not be paid or get a reward for doing these chores.

If you are living with your partner in his or her house, when the relationship comes to an end you will have to make other living arrangements, as your partner is not legally obliged to share his or her house with you.

There have been many situations where, when a partner dies, his or her family come and claim the assets. Very often, they take everything, including the assets of the surviving partner. It is important to keep receipts or other documentation in respect of assets which are yours, so that you can prove they are yours if it becomes necessary to do so.

Cohabitation agreement

Cohabitants need to have an agreement drawn up whereby they create rights and responsibilities for themselves. In the contract, the couple must agree on how they will conduct their living arrangements, and state the rights and responsibilities of each of them in the relationship. They should also state what should happen when the relationship comes to an end. For instance, if you intend to buy a house together with your partner, or one of you buys the house and the other is responsible for buying furniture, paying rates and supplying other household necessities, you must agree on what should happen with regard to the house, furniture and other assets acquired during the relationship, should you decide to terminate the relationship.

Dissolution of a cohabitation relationship

A cohabitation relationship can be terminated at any time, when one of the partners does not want to continue with the relationship. No court order or divorce procedure must be followed.

General notes about cohabitation

  1. Cohabitation if not legally recognized and partners enter into it at their own risk.
  2. It is better to enter into a cohabitation agreement so that both parties are protected.
  3. Always keep proof of things you buy or money you use for improving the house or any transaction that you enter into with your partner. This might come in handy when the relationship ends or your partner dies.

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