Formal marriage or cohabitation? It was not long ago when the default position was to formally say “I do”. However, lately, there seems to be a trend of many couples not to get formally married and to rather cohabitate. It is important to note that cohabitating couples do not enjoy the same legal rights, obligations, and consequences of married couples.

Cohabitating couples may encounter unintended legal consequences, especially in the event of the termination of the relationship. Two of the most prudent legal issues arising is upon the death of one of the cohabitating partners. In terms of the Intestate Succession Act only a spouse is able to inherit in the absence of a valid will. This Act defines a spouse as “married persons and persons in same-sex permanent partnerships who have undertaken reciprocal duties of support”. As one will note, this does not include heterosexual permanent life partners who have also undertaken these duties of support. In terms of the Maintenance of Surviving Spouses Act a survivor is defined as “the surviving spouse in a marriage”, however, the Act does not define marriage or spouse. It is therefore clear that the aforementioned Acts do not afford the same rights and obligations on partners in permanent life partnerships.

In the recent Constitutional Court judgment of Bwanya v Master of the High Court, Ms Bwanya challenged the constitutionality of her disqualification from inheriting or claiming maintenance from the deceased’s estate on the grounds of gender, sexual orientation, and marital status. The Constitutional Court found the provisions excluding persons in permanent life partnerships to be unconstitutional and invalid, and ordered that they be read to include persons in permanent life partnerships. The order has, however, been suspended, for a period of 18 months to allow Parliament to cure the defects. This may be seen as a step in the right direction, but there are many grey areas, highlighted by the dissenting judgment, in what defines a permanent life partnership which creates practical difficulties and nuances.

It is therefore advisable for cohabitating couples to enter into a cohabitation agreement in order to regulate the financial aspects of the relationship and to protect the parties in the unfortunate event of the termination of the relationship. Furthermore, it is prudent for cohabitating individuals to execute a will and ensure that same is regularly updated.

A cohabitation agreement is similar to an antenuptial contract in that it regulates the rights and obligations of the couple during the relationship as well as the consequences upon the termination thereof. Each cohabitation agreement is unique in that it will depend on the needs of the parties thereto. Also, should a party to a cohabitation agreement be in breach thereof, the aggrieved party can approach the court for assistance.

Author: D Campbell

Date: 8 March 2022