/ 6 March 1998

Cohabiting? Then mind your own business

Mandy Collins

Thankfully, the days when “living together” was considered a mortal sin are over. Today, many heterosexual couples choose not to get married, homosexual couples may not get married and many customary marriages are not recognised by South African law.

All that adds up to quite a few couples who live within a committed, long-term relationship, yet are not recognised as having a valid contractual relationship – which is the essence of a legal marriage.

There are many benefits for couples living together, but there is also a downside. This was demonstrated when Jolande Langemaat, a Johannesburg policewoman, asked the courts to force the medical aid, Polmed, to admit her lesbian partner of 11 years to the scheme. She won.

People who are legally married without an antenuptial contract are automatically considered to be in community of property, a kind of default contract. People who live together, however, have no such contractual protection.

This means that no matter how committed you are to each other or how optimistic you are about the long-term future of your relationship, you need to be sensible about planning for your future should the relationship end. In a nutshell – you have to look out for Number One.

Financially, says Tom Pearson of Thomelco Investment Brokers, it is essential for each partner to look at how he or she will build up his or her own assets.

One partner usually moves into the other’s home. If the relationship ends, the partner who owned the house still owns it, and the other partner has no claim to it, even if he or she has been contributing toward the bond and maintenance of the property.

“Couples who live together have to plan their financial portfolios separately,” advises Pearson, “especially if one partner works and the other doesn’t. If that relationship dissolves, in the worst case, the person who doesn’t work is left with no income, no assets, and no promise of maintenance from the other partner.

“So it is vital for people in this position to plan for the possibility that the relationship may not last for ever.”

This means that couples who live together must each make provision for their own medical schemes, retirement schemes and investments.

If they buy property together, they must ensure they have an agreement drawn up which clarifies each partner’s share in that property, and the responsibilities of each towards it. If they buy assets separately, adds Pearson, each should ensure they have enough life cover against that debt.

Beth Goldblatt of the Centre for Applied Legal Studies at the University of the Witwatersrand underlines what Pearson says. “If a couple is married,” she says, “they are obliged to maintain each other. If people simply co-habit, there is no such obligation.

“Living together complicates joint property owned by the couple, and it affects inheritance. For example, if a couple lives together for 30 years, and one partner dies without having drawn up a will, the law of intestacy applies – the family will inherit whatever is in the estate.”

For this reason, says Goldblatt, it is essential to draw up a will and keep it current. She also suggests that couples who live together draw up some sort of contract along the lines of an antenuptial contract.

“It’s a good idea,” she adds, “because when you can prove you have some sort of contractual relationship, you have a measure of protection.”

Fortunately, children are protected if the couple are not married. “Both biological parents are responsible for their children,” says Goldblatt, “so the father of the child is still liable for maintenance if the couple splits up.”

She points out, however, that the issue of cohabitation is up for debate under the new Constitution. “There is recognition that the law is geared towards a minority, white system at the moment. It doesn’t take customary marriages or same-sex relationships into account. So there is an attempt to deal with this issue, and there may be some changes in future.”

In a nutshell, if you are planning to live with the love of your life, brace yourself, ignore your heart and be practical. Plan for your future as though you were single, just on the off-chance that you end up that way.

ENDS