In South Africa, the legal landscape for couples choosing to cohabit without formalizing their relationship through marriage or civil partnership is complex and often misunderstood. Cohabitation agreements and antenuptial agreements serve as vital tools to ensure clarity, protection, and mutual understanding between partners. This article explores the nature, importance, and distinctions of these agreements, providing a comprehensive guide for couples navigating their options.

What is a Cohabitation Agreement?

A cohabitation agreement, also known as a life partnership agreement, is a legal document designed for couples who live together or plan to do so, regardless of their sexual orientation. This agreement is particularly relevant for those who are not married or in a civil partnership. It outlines the ownership of existing assets, financial responsibilities, and the distribution of savings and jointly owned assets in case of separation. In South Africa, cohabitation agreements are also commonly used in spousal visa applications.

What can a Cohabitation Agreement cover?

A cohabitation agreement can include several aspects, such as:

- Property ownership

- Home deposit contributions

- Mortgage or rent-sharing

- Household expenses

- Bank accounts and finances

- Life insurance policies

- Pension plans

- Assets (e.g., vehicles, furniture, jewellery)

- Debt payments

- Pets

Why should you have a Cohabitation Agreement, and who does a Cohabitation Agreement protect?

Many couples mistakenly believe that living together grants them the same legal rights as married couples, a misconception known as "common law marriage." However, this is not true. Unmarried couples do not have the same legal rights as married or civil partners. A cohabitation agreement provides:

• A clear understanding of financial obligations and responsibilities.
• Prevention of disputes and complications in case of a breakup.
• Documented intentions that can be used in legal situations.

A cohabitation agreement protects both partners if the relationship ends. It functions similarly to a prenuptial agreement, clarifying the distribution of assets owned before the relationship and contributions to household expenses.

How do you enter into a Cohabitation Agreement, and is it Legally Binding?

It is recommended that an experienced attorney or notary public be consulted to draft and notarize a cohabitation agreement. While online templates are available, they might not be comprehensive or current. The contract must be signed before a Notary Public to ensure legal recognition from third parties.

A cohabitation agreement is legally binding if it meets the following criteria:

• Both parties enter the agreement freely and voluntarily.
• The agreement is written and signed by both parties.
• It is signed before a Notary Public and is assigned a Protocol Number for third-party recognition.
• The agreement is updated with any significant life changes.

Can a Cohabitation Agreement be Modified?

Yes, a cohabitation agreement can be modified to reflect significant changes in the relationship, such as the birth of children, illness, disability, redundancy, financial changes, inheritance, or plans to marry or enter a civil partnership. Changes must also be signed before a Notary Public to be binding on third parties.

Can a Cohabitation Agreement be cancelled?

A cohabitation agreement can be cancelled by signing a deed of cancellation. If it is a notarial cohabitation agreement, it must be cancelled before a Notary Public.

Antenuptial Contracts 

Despite the importance of planning for divorce and signing a prenuptial agreement, couples often neglect to discuss it. However, prenuptial or antenuptial contracts are essential for setting clear expectations and protections within a marriage.

An antenuptial contract ("ANC'), also known as a prenuptial or marriage contract, is a legally binding agreement signed by a couple before marriage to outline the division of assets and liabilities in case of divorce or death and to protect against a spouse's business risks and creditors. 

In terms of the Matrimonial Property Act No. 88 of 1984, South Africa has three main marital property regimes:

• In Community of Property (no ANC needed, combining all debts and assets equally); 
• Out of Community of Property with Accrual (ANC required, each spouse retains their assets but shares growth in estates during marriage), and;
• Out of Community of Property without Accrual (ANC required, each spouse keeps their assets and liabilities separate).

If no ANC is signed, the marriage defaults to In Community of Property. ANCs must be signed before marriage, attested by a notary, and registered with the Deeds Office within three months of the registration process, governed by the Deeds Registry Act 47 of 1937.

Key Differences between Cohabitation and Antenuptial Agreements

A cohabitation agreement is designed for couples living together without plans for marriage or civil partnership, whereas an antenuptial agreement is entered into before marriage or civil partnership. 

The key differences include:

• Legal Status: A cohabitation agreement does not grant the same legal status as marriage, while an antenuptial agreement defines the legal and financial arrangements for a marriage.
• Scope: Cohabitation agreements focus on day-to-day financial responsibilities and asset distribution if the relationship ends. Antenuptial agreements cover broader aspects, including the matrimonial property regime and financial arrangements in case of divorce or death.
• Protection: Antenuptial agreements provide protection against a spouse's business risks and creditors, which is not typically covered in cohabitation agreements.
• Modification: Both agreements can be modified, but antenuptial agreements require careful consideration before marriage, as changes after marriage must be done through an application to the court.

Conclusion

Cohabitation agreements and antenuptial contracts are crucial legal tools for couples in South Africa to safeguard their interests and clarify their financial responsibilities. While cohabitation agreements are suitable for couples living together without plans for marriage, antenuptial contracts are essential for those planning to marry, ensuring clear property regimes and protections against future disputes. Consulting with an experienced attorney is recommended to navigate these legal arrangements effectively.

Written by Ross Hendricks, SchoemanLaw