The cohabitation agreement
A cohabitation agreement is an agreement entered into between a couple who are unmarried which sets out the history of the relationship and what the consequences of a break-up would be and how the assets would be divided and how maintenance would work etc.
The cohabitation agreement is quite popular these days. More and more people are choosing not to live together as husband and wife, but rather to stay unmarried and live together as partners. This agreement is similar to an antenuptial contract, except it is not registered at the deeds office or stamped by a notary.
The agreement may for example start off with a clause reading as follows: “We consider ourselves to be life partners. However we are both in agreement that there shall be no community of property inferred between ourselves and that we have no intention of our relationship being construed as a universal partnership”.
When a couple live together and work together and there is a break-up and they are unmarried, one party sometimes claims compensation by virtue of a so-called “universal partnership”. This means that the claim would be similar to that which a party may have had if the parties had been legally married. The cohabitation agreement can deal with this, and exclude or include any potential claim in terms of a “universal partnership”.
If one party owns the house you could also for example agree in the cohabitation agreement that should the relationship terminate, at least one month’s notice must be given before a party is required to vacate the property. This is only fair that somebody has time to find other occupation before vacating.
The cohabitation agreement could also deal with maintenance. The parties could agree and confirm in the agreement that they are both aware of their legal rights and confirm that, upon dissolution of the relationship, neither party would claim any maintenance whatsoever or any monies from the other party.
The agreement, like an antenuptial contract, could also deal with the division of assets. You could have a clause stating that upon dissolution of the relationship, each party will retain their own personal assets which they had prior to the relationship and each party will retain for themselves the assets which they acquired during the relationship.
It is so important to have a cohabitation agreement drafted these days if you plan on living with your partner and not getting married. It is normally a lot easier to sort out the proprietary consequences of a breakdown in an unmarried relationship than those of a marital relationship. When there are children involved however it can become equally complicated at the time of the breakdown in the relationship, whether the parties were married or unmarried.
So many relationships come to an end and it is prudent to always keep yourself protected in writing. The ideal way to do this if you are unmarried would be by means of a cohabitation agreement once you move in with your partner.
Example
Click here to see an example of a cohabitation agreement.Cohabitation seperation agreement
Just like conventional marriages come to an end; so too do cohabitation agreements; and whilst marriages end with divorce settlements, cohabitation agreements end with cohabitation seperation agreements, which can be authenticated by a notary public.
Even if there was no cohabitation agreement, unmarried couples may still want to set up a seperation agreement to regulate matters like parenting or custody of pets.
Cohabitation agreement lawyer
- Clare Faria
- Email clare@cloetebaker.co.za
Cohabitation agreement cost
The cost of a cohabitation agreement/contract varies depending on which of the following services you require:
- IF all you require is the notarial attestation to the agreement, this can be as little as R1199 (at the time of writing....may change by the time you read this...please check), if you have an already drafted and relatively short agreement; which you have both agreed to.
- IF you require that an agreement be drafted, but you have basically agreed on everything, then click here and see whether you can adapt this to reflect your agreement. If yes, no extra cost is involved.
- IF you disagree on some items and require mediation; then this will cost extra at an hourly rate of R1200 to sort out. It's best to sort out all potential issues before approaching an attorney/notary, but this is not always possible.
If you are still not sure about what the cohabitation agreement will cost, please email lawyer@capetownlawyer.co.za; highlighting what you'd like clarified.
Same-sex Cohabitation Agreements
We are pro LGBTQI+ and friendly to all; let us know how we can customise a legal cohabitation agreement to meet your specific requirements.
Common law marriage/partners
Some people think that if a couple live together for sufficiently long they become common-law partners - this is not the case in South Africa; where a common-law marriage/partnership does not exist.
Life partnership agreement
The terms "life partnership" and "cohabitation" are roughly interchangeable, with a life parntership agreement being more comprehensive (although its worth checking when somebody uses the terms to test what they consider them ito be encompassing).
Notarial contract of permanent relationship
Click here to see an example of a notarial contract of permanent relationship; these are sometimes set up for visa purposes. Note that it's for example purposes alone, not for actual use - email lawyer@capetownlawyer.co.za to set up a contract customised to your specific needs.
Related articles
Section 7 notice in terms of the Matrimonial Property Act
Notarial services info
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