Download Cohabitation Contract Sample
What is cohabitation?
Cohabitation is defined as a domestic partnership – where two people, regardless of gender, live together but are not married. The cohabitants are generally referred to as life partners.
South African law on cohabitation
Cohabitation is not regulated by any laws in South Africa. There is no common law marriage in South Africa and cohabitants can never be considered married under the constitution. In order words, there is no legal recognition of domestic partnerships.
The only way cohabitants can receive protection under the law is by means of a cohabitation agreement. The cohabitation agreement sets out the rights and obligations of each partner, during the relationship and after, and can be either verbal or written (preferably).
The cohabitation rights of South African citizens will be protected once the draft Domestic Partnerships Bill of 2008 is implemented.
You can download a cohabitation contract sample for South Africa below.
Marriage vs Cohabitation
Some of the differences between cohabitation and marriage are:
Marriage |
Cohabitation |
| Spouses are protected by a variety of marriage laws in the case of divorce or death. | The legal implications of cohabitation in South Africa are based on the arrangement between the cohabitants during the relationship. |
| A spouse has a right to inherit when a partner dies without a valid will under the Interstate Succession Act. | A cohabitant has no right under the Interstate Succession Act – except for those married under Islamic Law. |
| A spouse can claim maintenance after the death of a partner in terms of the Surviving Spouses Act. | A cohabitant has no right under the Surviving Spouses Act. |
| A spouse has an enforceable right to claim maintenance. | A cohabitant has no obligation to maintain partner. |
| Partners can have joint bank accounts and both partners can be liable for possible debts owed to the bank. | South African Banks do not normally allow joint bank accounts. A cohabitant can only give a partner co-signing rights, which does not include liability. |
Cohabitation property rights for unmarried couples
One of the reasons for cohabitation is to reduce financial pressure for each partner. The advantages of cohabitation include sharing the mortgage or rent, as well as splitting living costs. However, cohabitants need to be aware of their lack of rights based on the relationship under South African law. When the relationship ends, a partner could find him-/herself without a home and/or liable for paying the entire rent or mortgage.
Owned property
It is essential to have a notarial cohabitation agreement in South Africa, which stipulates how property and/or assets will be divided in case of separation, before cohabitants invest in property together. In case of death, cohabitants must also specify in their will that only written agreements count.
A good cohabitation document specifies:
- Whether property is jointly owned, separately owned or commingled;
- Joint living expenses and the division thereof;
- Each party’s contribution towards monthly household-, property- and home loan expenses; and
- The selling/market evaluation/bond transfer process of the jointly owned property in case of separation and/or death.
Without a cohabitation agreement, the property belongs to the registered owner in the case of death or separation – regardless of the length of time the partners lived together. The registered owner has the right to evict the other partner and to sell the property without notifying the partner.
Cohabitants can register property in both partners’ names. A bond can be registered based upon a 50:50, 70:30 or 80:20 financial contribution division between the partners. However, banks usually hold both parties liable (jointly and severally) for outstanding mortgage payments. When cohabitants are co-owners of property one cannot evict the other from the property.
Leased property
Cohabitants can co-sign a lease agreement, in which case they will be jointly liable for their share of the rental payments. If the agreement states that they are jointly and severally liable then each individual partner can be held liable for the full rental amount. For the duration of the lease agreement, both parties reserve the right to stay at the property.