“Not many people coming forward to draw up cohabitation agreements but many people are coming in [to law firms] looking to end a cohabitation relationship and to find out their rights,” Beverley Clark, a family law attorney from Clarks Attorneys told CNBC Africa.
Clark stated that many couples in long term non-married relationships begin sharing resources and expenses however should the relationship end, both parties do not have any legal protection under South African law.
In other words, no matter how long you have been together, you will never have the same legal rights as married couples do.
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“There are no laws addressing cohabitation. People should think of it as being housemates. Housemates acquire no duty of support and no claim to each other’s assets so if you moved out of the house at some point, you have no right to ask the other one to maintain you, and you have no right to take anything from the house unless you own it,” explained Clark.
“In our (South African) law, that is the same situation with cohabitation. There are no automatic rights or obligations so people really should have an agreement.”
Her biggest piece of advice therefore is for non-married couples to not become financially dependent on one another and to keep their accounts separate.
For example, car titles should remain in the name of the owner of the car and bank accounts shouldn’t be joined.
Clark added that the South African Law Commission have been drafting a domestic partnership bill for the past 10 to 12 years, and have not yet reached a conclusions due to the complexity of a cohabitation relationship.
A cohabitation agreement is therefore an essential document as it allows couples to split their property and its contents, personal belongings and savings should they break up.
Clark explained that the first step in drafting the agreement would be for both parties to assess what their financial duties are while living together and in the event of a break up, what will happen to these duties.
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The two biggest issues to address are both parties’ assets and maintenance. In other words, would either person require support from the other and to what extent?
Cohabitation agreements can be drafted with an attorney present however Clark stated people who do not have access to legal assistance may also download an agreement from the internet.
“Very few people have access to attorneys to do these kinds of things but frankly I’m sure people can find very adequate agreements on the internet because it really is a question of you and me sitting and talking about it and deciding what we want to do. An agreement signed by two parties is as binding as a legal agreement drawn by an attorney,” said Clark.
However, she warned, a legal agreement may prove to be more bullet proof and detailed than an informal one.