There is no law that regulates the rights of partners in a cohabitation relationship in South Africa, regardless of how long they've been living together.
"In South African law, there is no such thing as a common-law marriage, no matter how long a couple may live together. Their cohabitation does not create any automatic legal rights and duties between them. This is a common misunderstanding," said Roy Bregman of Bregman Attorneys.
In the event of a breakup, "a party that feels he or she is entitled to something from the other party (who disagrees), must go to court, at some expense, to prove that entitlement. To do so, the party must prove they were in a 'universal partnership', so that one party is entitled to certain property and assets of the other party, on separation." A universal partnership, however, is difficult to prove, noted Bregman.
Enter the cohabitation agreement, also known as a domestic or life partnership agreement – which is legally binding and protects either party should the relationship end. "This is particularly relevant for modern-day couples opting to cohabitate rather than get married," said Vera Nagtegaal, executive head of Hippo.co.za.
If cohabitating, when one partner dies without a valid will, the living partner has no right to inherit under the Intestate Succession Act, for example. A cohabitant can also not rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance on the death of a partner. Additionally, there is no obligation on cohabitants to maintain each other, and they have no enforceable right to claim maintenance.
This is why legal experts argue for a cohabitation agreement, which considers among other issues:
If the home you live in is co-owned, who gets what if you break up? If you are renting, who stays on and pays when you part ways?
Who pays for what in the house? If there is any credit taken on behalf of the couple, for example, a car, whose responsibility will it be to pay it if there's a breakup? If there are any collective debts, who will pay for them if the relationship ends?
If you have children and one partner stayed at home to look after them, would the partner be compensated in the event of a separation? Who would take care of the children, primarily as a caregiver, but also financially?
"How insurance policies are managed should ideally be covered in the cohabitation agreement. This is to avoid finding yourself in a situation in which the policy has been terminated without consultation," said Nagtegaal.
"For example, you might assume that your partner has continued to pay a life insurance policy, or a dread disease and disability policy, when in fact cover has been cancelled. Should any insurable event occur, you might be very surprised to discover that your financial position has been compromised."
The same applies to other forms of insurance, including household and motor vehicle insurance, she adds.
"You need to own your financial decisions. Assuming that someone else is taking care of it is the worst mistake any individual – male or female – can make. Own the responsibility as well as your financial freedom," Nagtegaal advised.