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Where parties have lived together for an extended period in a manner that resembles a marriage, but have not formally concluded a marriage, it is often referred to as a “common law marriage”. This term however is incorrect, as no such marriage exists in South African law. In fact, the correct term applied to this situation is “cohabitation”, however this does not by itself give rise to legal rights and obligations between the parties.

In order to formalise such relationship, parties are required to enter into an oral or written cohabitation agreement, which shall regulate the financial and property-related aspects of the relationship. It is however recommended for certainty that the agreement be written, and which may be concluded at any time during the course of the relationship.

Specifically, this agreement must deal with how joint assets of the parties are to be purchased, expenses are to be paid, and the manner in which parties shall separate or terminate the relationship. The agreement however will only be enforceable against the other party and not towards third parties.

A well-drafted cohabitation agreement is thus a useful tool to provide unmarried couples with considerable structure and predictability, which to some extent shall resemble that of a ‘normal’ marital regime. Further, where a dispute arises regarding the application and interpretation of the agreement, a court may be approached to assist and provide the parties with the necessary guidance and relief.

If there is no cohabitation agreement, a person is only entitled to retain the property which he or she owns and has purchased themselves.

Further, if one of the spouses were to pass away, the surviving ‘spouse’ shall only be entitled to inherit in terms of a valid Will left by the pre-deceased party, and shall not be entitled to inherit in terms of the laws of intestate succession. Similarly, neither party shall be entitled to maintenance, and any term within the agreement which deals with same shall be invalid.

Alternatively, unmarried parties may enter into what is referred to as a “Universal Partnership”, which requirements bear similarity to that of a financial partnership.

In particular:

 

  • each of the partners must each contribute something to the partnership, whether it be money, labour or skills;
  • the partnership must be carried on for the joint benefit of the parties; and
  • the object of the partnership must be to make a profit.

 

Where property has been jointly purchased, the couple will only be entitled to share in the property in terms of their respective contributions to the partnership or property.

Often, however, it is difficult to prove a universal partnership as the arrangement tends to have strict requirements that need to be met in order to be valid. Nevertheless, if a court finds a universal partnership to exist, both parties will have a claim to the property in terms of the agreement or partnership entered into.

 

For more information relating to Family law kindly email us on info@hjw.co.za.

 

Written by Dyllon Nicholls.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW ATTORNEYS at info@hjw.co.za directly for advice applicable to your specific matter.