What is Cohabitation and how is it different to Marriage?
You may have come across the term “common law marriage” to refer to a couple living together in a long-term relationship. You may even refer to your own relationship as a common law marriage. But, in South Africa, no such thing actually exists in the legal sense. Plot twist. In 2008, the Domestic Partnership Bill was presented to parliament to try to give couples in an informal relationship more legal certainty, but this has still not been passed into law and there is no clarity when, or if, this will ever become enforceable law.
WHAT IS COHABITATION?
Another term to refer to this structure is “cohabitation”. In the general sense, this refers to any people who are:
living together
sharing household responsibilities
It could be friends sharing a digs, or a couple involved in a romantic relationship.
HOW IS COHABITATION DIFFERENT TO MARRIAGE?
There is no legal definition or structures in place that regulate a cohabitation arrangement. Most notably, couples living with this kind of arrangement do not enjoy the benefits, rights and obligations that arise out of marriage - irrespective of how long the couple has been together.
If you and your partner love each other and have made promises to each other throughout your relationship, you may believe that if or when that relationship ends, there are certain commitments that should be continued.
But, this isn’t the case.
For example, if one of you dies, there is not recourse for the other to claim benefits under either the Intestate Succession Act (regulating the assets of the deceased when they die without a will) or the Maintenance of Surviving Spouses Act (which provides for a stipend to be provided from the deceased’s estate to look after their surviving spouse).
Perhaps even worse, if the relationship ends because the partners decide to go their separate ways, there is no claim against each other for maintenance - even if one of the partners has left work to look after the couple’s children, and is in a financially more vulnerable position than the other.
Notwithstanding this, many couples choose not to get married for various reasons and cohabitation is definitely on the rise. Whether you choose to get married or not is your choice completely. But, in the absence of a legal union, you and your partner might want to regulate your relationship in a formal way to protect both your interests. You’d do this by having a Cohabitation Agreement drawn up.
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