Need for Co-habitation Agreement between long-term partners

OPINION

SUBJECT: Need for Co-habitation Agreement between long-term partners

Main Concerns:

How can long-term partners who have been in a romantic relationship for a number of years protect each other’s interests upon the dissolution of the partnership?

How does a long-term partner ensure that they are taken care of by the estate of the deceased upon one of the partners death?

Is marriage a better option or can the partners preserve and protect their relationship in another way?

The law:

A Co-Habitation agreement is designed to protect unmarried couples as the contract sets out the financial consequences of a long-term domestic relationship where the couple have chosen to not get married and therefore do not have the rights and protections ordinarily granted to couples who are married under a law recognized but the Republic of South Africa. The co-habitation agreement serves as a similar purpose as an Ante-Nuptial Contract. Like any other contract it is used to set out rights and obligations of the parties to the contract and is really only enforced when a relationship sours and there is a need for it to be dissolved. As the law in South Africa does not recognise a common law marriage the need to formalise a long-term life partnership is advisable.

The Co-habitation Agreement is drafted to the specific needs of the partners and ultimately aims to protect both parties financial interests and attempts to manage and set out the expectations of the partners.

Due to the nature of a partnership where either party relies on the other for financial and emotional support and cooperation, similar to how a married couple would rely on one another, it can be useful to ensure that if the relationship comes to an end that there is a clear path to how the relationship can be dissolved in the most amicable and cordial manner. The Co-habitation Agreement, which was signed when the partners wanted to remain in the relationship, will dictate and guide how the dissolution of the partnership will take place and will ultimately protect the interests of both parties.

Another aspect to consider is the ever-changing legal landscape surrounding the right of life partners to claim maintenance and support from the estate of a deceased partner. Our courts and legislature have recognised the need to protect long-term life partners and have and are in the process of ensuring that life-partners are protected as a spouse would be. As it stands a life-partner as a dependent of a deceased may claim from the deceased pension (if they are not already a nominated beneficiary) and in 2023 the law may change to state that a life-partner can bring a claim of maintenance against a deceased partner’s estate in the event that the deceased did not make provision for the maintenance of a dependent life partner in his/her will. A Co-Habitation agreement would assist in navigating the winding up of a deceased estate if provision is made for it in the agreement.

The Opinion

It is advised that long-term life partners conclude a Co-Habitation Agreement to ensure that both parties are protected and to ensure that the legal rights and responsibilities are made clear. The agreement can be as detailed or simple as the partners wish and can cover the basic topics of moveable, immovable and maintenance issues but can also cover more simple issues such who would be entitled to retain the couples domestic pets, for example. The contents of the agreement are entirely at the discretion of the partners.

It is always advised to rather have a contract and not use it than to not have a contract and wish you could use it.

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