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Cohabitation

Is your decision to live with your partner without entering into a marriage leaving you vulnerable?

Should you be doing something to protect your interests?

People today seem to be reluctant to get married to their partners and only seem to get married, if at all, after living with their partners for a good number of years. People living with their partners often also run their financial affairs similar to that of a married couple in that both their salaries are utilised to cover their joint household expenses.
The problem with living together as an unmarried couple is the fact that you will not have the same rights on dissolution of the relationship as a married couple would have and you may end up walking out of the relationship being particularly disadvantaged.
Jack and Jill cohabited (lived together) for 7 years and never got married. A short while after Jill met Jack, Jill sold her property and moved in with Jack. Jill brought with her the kitchen appliances that she owned (a washing machine, tumble dryer and dishwasher) as well as some furniture. Jack paid the monthly bond repayments, rates and taxes and levies in respect of the home whilst Jill, who had a smaller income, mostly paid for their groceries, toiletries, entertainment and the domestic helper’s salary.
Jack, due to his bigger income, paid for any furniture and appliances acquired by the couple and, in time, the appliances belonging to Jill were sold and replaced by new ones.
After Jack and Jill had lived together for almost 7 years, the relationship broke down and Jack gave Jill notice to vacate the residence, failing which he would evict her from the property.
Jill had no title to the property and/or rights to occupy same after Jack had given her notice to vacate and Jill could not claim any maintenance from Jack in order to assist her with alternative accommodation.
Jill was not able to successfully prove a universal partnership and she accordingly left the relationship with nothing and her only recourse was a possible claim for enrichment against Jack (which was difficult to calculate and/or prove, as a lot of the expenses she paid on his behalf were paid in cash and she had no records thereof) and most of her claim against Jack had in any event prescribed.
Jill could have insured that her interests were protected by entering into a cohabitation agreement with Jack prior to deciding to live together or before the relationship broke down and while Jill’s interests and wellbeing were still important to Jack.
Jack and Jill could have come to a variety of different agreements regarding how they would contribute to their communal expenses and how all assets they acquire during their cohabitation relationship would be divided on dissolution of the cohabitation agreement. Jack and Jill could for instance have agreed that all furniture and appliances and certain other assets be divided between them equally or that they would each be entitled to a certain percentage of all of the assets accumulated by them during their cohabitation. They could even have come to an agreement regarding rehabilitative maintenance after dissolution of the relationship and Jill could have secured her right to stay in the home for a period of time after the relationship broke down, so that she could have some time to get herself into a position where she could afford alternative accommodation.
When you elect to move in with your partner and you start accumulating assets jointly, purchasing properties and utilising your respective incomes to sustain a joint lifestyle, a cohabitation agreement needs to be considered in order to ensure that one partner, usually the one with the lesser income, is not prejudiced on dissolution of the relationship.
Leana Pretorius

Bev Loubser Attorneys
Attorney, Conveyancer & Notary
Collaborative Divorce Practitioner & Mediator
1st Floor, Block B, Aspen Village Shopping Centre
Telephone: (011) 432-8605 / 8608
Cell: 082 575 9711 • email: bev@loubserattorneys.co.za

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