An increasing number of couples opt to cohabit rather than formalize their relationship through marriage. This choice raises pertinent questions about the financial and legal ramifications involved.
When a couple resides together in a manner akin to a marital relationship without undergoing the legal procedures of marriage, it is legally termed “cohabitation,” also known as “living together” or forming a “domestic partnership.”
There exists a prevalent misconception suggesting that couples cohabiting for a particular duration, typically six months, are automatically considered “common law married.” However, this notion is erroneous. In South African law, living together for a specific period does not confer a common law marriage status.
The Constitutional Court’s ruling in Volks NO v Robinson and Others clearly establishes that there is no automatic conversion of cohabitation into a default marriage.
It is imperative for cohabiting individuals to draft a cohabitation agreement outlining the disposition of assets in the event of relationship dissolution, whether through death or termination. Courts have demonstrated a readiness to extend legal protection based on contractual agreements to domestic partners.
Upon dissolution of the relationship, assets and obligations are settled according to the terms agreed upon during the partnership. Assets acquired during the relationship are considered jointly owned by the partners, provided they can substantiate the existence of a domestic partnership.
Likewise, debts incurred during this period are jointly liable.