Important legal consequences of cohabitation

While many people still prefer the formality of a civil marriage more people are preferring less traditional forms of commitment and are choosing to simply live together. In many instances this is preferred by the couple who may go on to have children as well.

The legal form of this is cohabitation which refers to a couple living together as spouses, regardless of gender, without entering into a civil marriage. This means that it is without the application of the familiar patrimonial consequences which would follow from a civil marriage.

In South Africa, there is no "law of cohabitation" and no amount of time spent living together will convert the cohabitation relationship into one where legal rights and duties automatically flow from the relationship.

Spouses therefore do not have any of the rights that they would be able to call on if they were in a civil marriage should the relationship dissolves, whether due to a break-up or death. This would inevitably leave vital challenges and issues such as ownership of assets acquired jointly including property, liability for debts, cell phone accounts, rental contracts and more.

It is therefore always recommended that couples conclude a Cohabitation Agreement or Domestic Partnership Agreement aimed at setting out the rights and obligations towards each other. By setting out their wishes regarding finances, assets acquired individually or jointly and the joint household, the parties can ensure that should the relationship dissolve, they are able to do so with certainty regarding the patrimonial consequences.

A second important legality that cohabitating couples should consider is a will. A Cohabitation Agreement cannot regulate inheritance in the event of death. This can only be done by way of a valid will to ensure that the assets devolve to the person(s) intended.

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