In our modern times, many couples opt to live together as opposed to getting married. This type of relationship is often referred to as a domestic partnership, life partnership, cohabitation agreement, living together, or common-law marriage. Cohabitation relationships frequently exist between both heterosexual and same sex couples. In both instances the relationship involves the same central themes and reciprocal duties of support, but without having been solemnised as a legal marriage. Which means cohabitation does not attract the same level of protection that marriage does.
Cohabitation involves a great deal of personal commitment and emotional investment. It also carries other consequences that, if not discussed, agreed to and recorded in writing, can cause major problems on termination of the relationship, whether through death or separation. A suitable agreement should include reference to the duty of support, any rights to share in each other’s property and the extent of this sharing, and what happens on termination.
Marriage is currently the only relationship that protects the rights of life partners without having to enter into additional agreements. With marriage comes an automatic and reciprocal duty of maintenance and support between spouses, and the right to inherit on intestate succession (meaning death without a will). For couples living together, these consequences need to be regulated by a cohabitation agreement. In the absence of an agreement, you may be forced to approach a court, after termination of the relationship, for an order to split property, claim under an insurance policy, or recognise a claim under intestate succession. In these instances, the courts would look at all the circumstances of the relationship – and there is no guarantee that the application will be successful. This is also an expensive and time consuming process.
A life partnership agreement, or cohabitation agreement, sets out the reciprocal duty of support and maintenance between a cohabiting couple. It also addresses other consequences, such as the event of death or separation, ownership of assets acquired both prior to and during the relationship, payment of household expenses, acquisition of a property etc. When the contract terminates, whether on death or separation, it will do so in accordance with the provisions of the life partnership or cohabitation agreement.
Couples who live together are therefore urged to consider signing a Cohabitation Agreement, and simultaneously ensure that they have wills in place to protect their respective interests.
Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.