Precautionary counsel on cohabitation

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Lately, more and more people are choosing cohabitation over marriage. Various reasons can account to this, such as financial constraints, to test for compatibility, fear of marriage in case it ends in divorce, while some simply do not believe in marriage. How many cohabitees have actually paused, to think of what will happen if the other partner dies?

There are speculations that if you live with a partner for a prolonged period and share children, you are entitled to part of his assets upon death. That is not according to the South African law, there is no default marriage. This implies that in the absence of a will, biological family of the deceased have a right over his assets and can evict the surviving partner from the house.

“One of the most common major protection measures that can be implemented is to do a will, whereby you can leave some of your assets to your partner upon death”, says a law expert Eric Morweng.

“There is a principle of universal partnership agreement. In this partnership agreement, both partners can contribute to the relationship. This way even without marriage they can equally benefit at the end of the relationship, depending on the terms and conditions of their partnership agreement”, says Morweng. He strongly recommends that when cohabitees find that the relationship is going well, that is the best time to start thinking about the future.

A News24 article by Bridget Siebert enlightens that universal partnership affords cohabitees to claim a share of assets acquired during the period of living together. However, being in a universal partnership does not mean that the parties involved enjoy automatic rights. When one of the partners dies without leaving a will the surviving partner does not automatically become the beneficiary. The surviving partner must prove to the court that he/she was indeed in this relationship and thus owed something.

In one scenario you find that a sister has also been contributing towards the renovations of the house and is not prepared to be kicked out without a fight. Currently the director of a Mafikeng based law firm Morweng Attorneys, Eric Morweng advices that in such instances the sister can approach the court to interdict them for kicking her out. He shares that this is not an easy process, as it can take time and can be very costly. Morweng says that in such an instance the person laying the claim has to produce visible evidence which proves that she has been paying some of the items of the house.

Written: 17 February 2018, Updated: 21 February 2020

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