Written by: Eugene van der Walt
Cohabiting parents? What rights do we have?
In South African law, cohabitation is commonly referred to as living together as though married; however, that is not recognised as a legal relationship.
In South African law, cohabitation is commonly referred to as living together as though married; however, that is not recognised as a legal relationship. As such, cohabiting partners do not automatically acquire the legal rights and responsibilities afforded to married couples.
However, cohabiting couples can enter into a cohabitation agreement, which outlines their respective rights and obligations. While this agreement can have legal consequences, it is governed by the principles of contract law. This means that, like any other contract, a cohabitation agreement must be lawful and not contrary to public policy or contra bonos mores (against good morals). If any term in the agreement is found to violate these principles, it will be deemed unenforceable.
In certain circumstances, a cohabiting couple may establish what is known as a universal partnership. When such a partnership is formed, it may give rise to financial claims upon termination of the relationship. To dissolve a universal partnership, the parties must apply to the court for a formal declaration and division of the partnership assets.