There are often complex questions in relation to patrimonial consequences in circumstances where parties have been living together as a couple for extended periods of time. These questions are often fueled by the view that there exists a customary law marriage in the South African context. It has become quite common placed, that couples opt to live together before entering into a marriage relationship, hence the following questions come into play.

• If I live with someone for more than six months, will they be entitled to a portion of my assets when we break up?
• What will happen to my assets in the event of my untimely passing, since I have been living with my partner for the past two years?
• My sister’s boyfriend passed away, they have been living together for the past 7 years, they had no children. Now the boyfriend’s family wants to remove her from the property where they were living together.

Most of these questions are designed to peddle the misconception that parties who live together (cohabit/ vat en sat) as a couple, obtain the same benefits as couples who are married to each other. It is critical for us to debunk this myth. There is no law in South Africa that confers rights and responsibilities to parties who are in a cohabitation arrangement. Consequently, the South African legal system does not recognize a cohabitation arrangement as a legally binding relationship. It follows that a simple response to the questions posed above is in the negative.

What happens when one of the parties to a cohabitation relationship dies?

There are two scenarios for a definitive answer to this question. A person dies either with or without a will. When a person dies without a will, they are said to have died intestate, the Intestate Succession Act, 1987 comes into play. It clearly sets out who the beneficiaries are, in the first instance, a spouse or descendants or both. Where there is no spouse or descendants, the estate pass other more distant members of the family. Where a party dies with a will, they are said to have died testate, the provisions of the will are considered in determining how the deceased wanted their estate to be distributed upon their death. Without a will, the surviving partner cannot be automatically considered the heir or dependent. Waters become even murkier in a situation where the partner who has died was married, but due to some unforeseen reasons, failed to finalise a divorce after separation from their former spouse. Clearly the former has a legal title to proceed and claim the entire estate.

Is there any law that recognises a cohabitation relationship?

Certain legislation provides a level recognition to partners in a cohabitation relationship, albeit not defining it as such. The Domestic Violence Act 116 of 1998 (provides protection to parties in instances of gender-based violence). The Medical Schemes Act 131 of 1998 as well as the Income Tax Act define the word “spouse” as including a partner in a permanent same sex or heterosexual relationship.

Cohabitation Agreements

It is imperative for parties to arrange their lives in a manner that brings about certainty regarding their rights and obligations towards each other during the subsistence of their relationship. A cohabitation agreement is a contract that does just that. It sets out the parameters of the parties’ relationship towards one another and regulates their financial and patrimonial consequences in the event of the demise of the relationship either through a breakup or by death of one of the parties.


Who may enter into a cohabitation agreement?

It is important to bear in mind that a cohabitation agreement is a contract, therefore the basic requirements of a valid contract must be met, namely:

• Consent (there must be a meeting of the minds i.e., the parties must know that they are entering into a cohabitation agreement and agree to it);
• Legal capacity (the parties must have the legal capacity to act i.e., they must be of age and of sound mind); and
• Though a contract need not be in writing, it would seem logical that a cohabitation agreement must be in writing, otherwise it defeats the purpose of its existence.

Why enter into a cohabitation agreement?

A cohabitation agreement helps the parties regulate the terms of their relationship. They may make provisions for:

• The party responsible for paying the rent;
• Whether they have a duty to maintain each other;
• Who is responsible for household expenses;
• Define the extent to which they are entitled to each other’s property;
• What will happen in the event one of the parties dies or during a breakup, particularly to the property they purchased together; and
• What happens when one of the parties dies?

With a properly drafted cohabitation agreement, the parties’ affairs are not left to chance. The agreement is legally binding as between the parties and provides a level of protection for them in the event of death or separation.