Common Law Marriage Myths and the Power of Cohabitation Agreements

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Common Law Marriage Myths and the Power of Cohabitation Agreements

According to latest data from StatsSA, fewer South Africans are getting married as the number of civil marriages continues to decrease. For many, the concept of a ‘common law marriage’ has become deeply ingrained in beliefs about long-term partnerships with the assumption that cohabiting couples share the same legal rights and responsibilities as those who are legally married, just by virtue of living together for a certain number of years. However, this belief has no grounding in South African law. This misunderstanding can have profound consequences, particularly concerning inheritance, property ownership, and financial support.


The myth vs reality in South African Law

In essence, common law marriage is perceived as a ‘marriage’ that arises from cohabitation, suggesting legal rights and obligations akin to those of a legally bound marriage. Despite the prevalence of this belief, South African law makes a clear distinction: it does not recognise these unions, and as a result, couples do not automatically acquire any legal status or rights, regardless of the length of time couples live together.


This gap in legal protection can create significant challenges, particularly if complex or sensitive situations arise. For instance, should one partner pass away without a legally recognised will, the surviving individual has no automatic right to inherit. Similarly, on the dissolution of such a relationship, claims for maintenance or property splits are not straightforwardly acknowledged, potentially leading to financial and emotional turmoil.


The power of cohabitation agreements

Given the legal vacuum within which unmarried couples cohabit, entering into a cohabitation agreement is encouraged. A cohabitation agreement would outline the specifics of the partners’ relationship, establishing a clear legal framework and providing a semblance of the protection that an official legal marriage would afford.


Structuring a cohabitation agreement: Key for partners to components

A comprehensive cohabitation agreement should address several crucial areas to avoid potential legal pitfalls:

  1. Joint property (owned or rented): The agreement should clearly stipulate the ownership status of property acquired before and during cohabitation. This clarity is essential for matters such as purchasing property together or rights to shared assets.
  2. Living expenses: The contract should outline the responsibility for household and living costs, detailing how expenses are shared and managed between the partners.
  3. Liabilities: It’s vital to establish how liabilities are handled, particularly those incurred jointly. Understanding the extent of individual and collective financial responsibilities can prevent potential disputes.
  4. Life insurance, pension and other financial assets: The agreement might consider provisions for life insurance policies and pension benefits, ensuring the financial protection of both parties.
  5. Maintenance: Though not legally obliged, partners may agree on specific maintenance provisions in the event of a relationship breakdown, providing an additional security layer.


Safeguarding your future with legal clarity

Contrary to popular belief, common law marriage doesn’t hold legal water in South Africa. This misunderstanding shows that there is a need for couples living together to protect themselves through a cohabitation agreement. These contracts safeguard individual interests, providing a roadmap for managing joint financial aspects and offering security in unforeseen circumstances. Consulting with legal professional at Hammond Pole ensures your cohabitation agreement is comprehensive, clear, and enforceable, guarding your relationship’s future in the absence of traditional marital protections.


For more information, please contact Hammond Pole Attorneys:

Carla De Waal – CarlaDW@hammondpole.co.za

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