Happy in love, but keep your head

2007/07/26

You meet the love of your life and decide to move in together. Everything is perfect for while, you buy this and that and a house ... but three years down the line, you break up and now the question is - who gets what?

There is a wide spread misconception that common law marriages are protected by the law, but this is not the case. Couples living together need to ensure that they have a written contract in place in the event of a break up.

Partners will often buy a house together and only register it in one person’s name. This means that if they break up, the person who is not a registered owner, does not have any financial claim to the property. This applies to any other items of great value the couple may have bought while together.

The best method of protection then is to draw up a comprehensive cohabitation agreement. This is a binding contract between the partners and should set out clearly what should happen to the assets when the relationship ends.

Where there is no agreement about how the assets should be divided, then each partner would keep whatever he or she brought into the relationship and the partners don’t share in what each has built up.

Another way to formalise the relationship is to register a domestic union. This has the same consequences as a marriage and is registered at the Department of Home Affairs. Before registering their union, the partners can also register a domestic partnership agreement which follows the same format as an Ante Nuptial Contract and the same formalities apply. A domestic partnership agreement has to be drawn up by a notary and signed by the parties in front of the notary before domestic union can be registered.

Drawing up a cohabitation agreement has the advantage in that the partners can include clauses stating that any differences of opinion should be resolved through arbitration, which is generally faster and less expensive than going through the court.

Another important aspect to keep in mind is that partners who live together do not automatically inherit from each other and need to draw up a will. If the partners intend leaving each other benefits from pension funds, it is important that they nominate each other as beneficiaries. The same applies to life insurance policies and medical schemes. Medical schemes are not allowed to discriminate against members who are living together, but they might need proof that this has been the situation for a specified minimum period. Unmarried partners also have no claim against each other for maintenance unless there is a cohabitation agreement.

Having written agreements in place means that everyone is protected and that if the situation takes a turn for the worse, you will be able to get the right kind of legal help.