What are our options if we don't want to get married?
There are many reasons why the institution of marriage might not gel with what feels right for your relationship. And that’s absolutely fine. If you aren’t keen on marriage but do want some legal formality, then there are other perfectly sound ways to “make it official”. But you actually have to take active steps to formalise things. Remember that, in South Africa, no matter how long you’ve been living with someone, your relationship doesn’t automatically convert into a common law marriage. No such thing exists here - surprise, gasp, shudder!
One way to establish some formality in a cohabitation relationship is to enter into a written agreement with your partner, similar to an agreement you might enter into with a business partner.
An agreement like this is often called a “Cohabitation Agreement”. Who said lawyers aren’t creative (!). This agreement will regulate how the partners contribute towards the relationship and what happens after that relationship comes to an end. One silver lining, unlike an antenuptial contract between married couples, which needs to be concluded before marriage, a Cohabitation Agreement can be entered into at any time of the relationship.
As with most contracts, the parties entering into it (in this case, the couple) can decide what they want to include or not. Most Cohabitation Agreements should, however, contain deal with the following information at the very least:
What happens to joint property owned by the couple, or leased property where the couple lives, if the relationship ends?
Who is responsible for which household expenses and in what proportion?
What individual expenses will be kept out of joint responsibilities?
The benefit of entering into a formal written agreement like this allows the parties to approach the court for some assistance if things go belly up.
In the absence of a written agreement, the partners will only be able to keep the property that they have each bought in their personal capacity. Any jointly owned property would need to be split equally.
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