However, if a universal society cannot be proved, the private property that belonged to the couple before living together belongs separately to the partners and there is no community of property. Assets acquired prior to the relationship are also exempt from the consequences of the Insolvency Code. Includes a man and a woman or homosexual relationships. Here are five things you should know about living together if you plan to live together or if you are already in a cohabiting relationship and want to understand your rights. Unfortunately, for this reason, the waters around a community are very difficult to navigate. In particular, it is difficult to determine which legislation would be applicable and which would not. Cohabitation refers to a heterosexual or same-sex couple living together without being legally married. While many people have believed that cohabitation is a de facto marriage, it is not recognized as a legal relationship under South African law. There is therefore no law regulating the rights of the parties in a cohabitation relationship. People living in a form of cohabitation do not enjoy the same rights as a legally married couple, regardless of how long they live together, while living together is increasingly becoming the norm in South Africa. A cohabitation agreement can be concluded at any time before the end of the cohabitation relationship.
However, it is advisable to sign a cohabitation agreement before starting the cohabitation relationship to ensure that there is absolute security in the relationship from the beginning. Cohabitation generally has three universal components, namely, a sexual relationship between the couple; they live in the same house; And it`s a stable relationship. A sense of mutual responsibility may also be required. At a time when most marriages fail, parties with a record of past relationships and marriages prefer to live together rather than get married. Same-sex or heterosexual partners who choose not to marry should sign a domestic partnership (also called civil partnership or cohabitation) to protect them in case their relationship ends. It`s cheaper than going to court! A widely used definition describes „life partners“ as „two adults who share an emotional, physical and financial relationship such as that of a married couple, but choose not to marry or cannot legally marry. They share a mutual commitment to supporting the necessities of life. A person can only be married under one of these laws at a time, except that a couple in a habitual monogamous marriage can marry under the Marriage Act. Since the cohabitation relationship itself does not confer rights or obligations on either party, some savvy litigants have been successful in asserting claims against their former life partner in relation to other laws. Will one person inherit automatically if the other person dies in the relationship? A cohabitation agreement is a binding contract between two parties who live together or intend to live together, formalizing various aspects of their relationship and, if properly drafted, provides essential protection for both parties in the cohabitation relationship. Given the scarcity of legal regulation of cohabitation, various other mechanisms have been put in place to address some of the problems associated with cohabitation scenarios. This brings us to our second point.
The fact that the parties are not married does not necessarily mean that the law does not apply to them. For example, the Domestic Violence Act considers persons who live together and are not married to be in a family relationship for the purposes of law enforcement. Therefore, cohabiting parties can go to court for help if one of the parties commits an act of domestic violence against the other. There are various problems that arise from cohabitation that can be problematic given the nature of such a relationship. Some of these problems are as follows: although the partners in a cohabitation relationship are not deprived of rights and/or remedies, it becomes very problematic to enforce them, as there is very little legislation or case law dealing with cohabitation. South African law provides for no-fault divorce on the basis of the „irretrievable breakdown“ of the marital relationship. The courts may accept all relevant evidence of a breakup, but the law specifically mentions one year of separation, adultery, and habitual delinquency as factors that can prove an incurable breakup. Divorce can also be obtained due to incurable mental illness for two years or continuous loss of consciousness for six months. Unfortunately, living together is a largely unknown concept in South African law, and very few people take the time to figure out what they are getting into before taking the plunge and moving in with their partner. This can lead to a variety of long-term problems, and it is important for the parties to understand what cohabitation is and what the implications are. The proposed Domestic Partnership Bill will help couples who choose to live together instead of getting married. It will be the possibility to register their relationship as a domestic partnership, thus creating rights and obligations similar to those of marriage.
The good news is that much of the uncertainty that exists in cohabitation relationships can be eliminated by entering into a cohabitation agreement. At times, South African courts have helped couples recognize the existence of a universal partnership between them. A universal society recognizes the common material status of a partner, i.e. the court would grant each of them a share in the property that the relationship acquired during the partnership. The conditions that must be met to prove a universal partnership are: Dippenaar explains that the universal partnership argument can be used to give both parties a share of all real estate acquired during and before the relationship begins. Living together is an age-old concept in Europe and parts of America. However, South Africa has traditionally been more conservative and Calvinist in its approach to these types of relationships. However, coexistence in South Africa is at an all-time high. Statistics have shown that fewer people marry and more people live together without getting married. Although South African laws are catching up with the rest of the world, especially Europe, there is still no mechanism to recognize cohabitation as a legally binding relationship. It is therefore up to the parties in such a relationship to ensure that they do the necessary work and prepare the necessary documents to protect both of their rights during the cohabitation relationship. Cohabiting couples do not have the same rights as married couples under the law, so it makes sense to explain at the beginning of the relationship what the separation would look like if the cohabitation broke up.
In order for us to develop a cohabitation agreement tailored to your living situation, please make an appointment with one of our family law lawyers in our Johannesburg office. You also have the right to enter into a contract similar to a contract and sometimes called a civil partnership contract. This is the responsible thing in a cohabitation because, as with marriage, there may come a time when the relationship ends, and then you will both be covered. One of the misconceptions surrounding cohabitation is the idea that if you have lived with someone for a while, it becomes a „common-law marriage.“ Although many people refer to cohabitation as common-law partner, there is no underlying legal concept describing a common-law marriage or its implications. There are three different laws under which a marriage can be entered into in South Africa: Cohabitation usually consists of two people living together as a couple, similar to a marriage, without getting married. Cohabiting couples who wish to clarify their relationship and reach a legal agreement can enter into a cohabitation agreement. Nevertheless, there are legal consequences to living together, and some laws define a „spouse“ as including a partner in a cohabitation, says lawyer Simon Dippenaar. Cohabitation refers to a stable, monogamous relationship in which the couple, male-female or same-sex, chooses not to marry but to live together as spouses. A cohabitation looks exactly like a marriage with the viewer. The only distinguishing feature is the absence of legal sanctions. What happens if the relationship ends without a cohabitation agreement? In South Africa, living together is not a recognized legal relationship.
Many people believe that by living together for a period of time, they are entering into a common-law relationship. There is no such marriage and people are only protected by a cohabitation contract. „This misconception exists in many jurisdictions, but there is no de facto marriage. » Common-law marriage – Contrary to popular belief, South African couples living together are not legally married common-law after a certain period of time. Since persons living together do not have the same rights as married couples, in the event of the death of one of the partners, the other partner is excluded from the estate of the deceased partner under the Succession Act if the deceased partner died by the execution of a will.