Back in the 1950s Frank Sinatra sang about how love and marriage go together like a horse and carriage. But these days, for some couples, love seems to be able to get by very well on its own. The duration of “live-in” relationships vary with some spanning an entire lifetime, maintaining a joint household and even bearing children together. However, regardless of the duration of cohabitation there are no automatic legal rights and duties and South African law has no provisions for “common law marriages.”
It would therefore be prudent to enter into a life partnership or cohabitation agreement which details what would happen if the co-habitation ceases or in the event that a cohabitant dying without leaving a Will.
A cohabitation agreement regulates the rights and duties between partners. It details the division and distribution of assets if the relationship ends, the rights and obligations towards each other with regards to maintenance, and parties’ obligations and respective financial contributions towards the joint home. A cohabitation agreement will be legally binding between the parties as long as it contains no provisions that are immoral or illegal.
In the absence of cohabitation or life partnership agreement, a party claiming against the other or the other’s estate, would have to prove to the court that a universal partnership existed.
The party claiming must show that the aim of the partnership was to make profit, both parties contributed to the enterprise, the partnership operated to benefit both parties, the contract between the parties was legitimate, there was valid consent and an intention to create a legally binding partnership agreement. This is often difficult to prove and may result in the claimant walking away with nothing, even if the parties lived together for many years.
Fortunately, the Children’s Act imposes duties on parents to maintain children even if they were born out of wedlock.
