RECOGNITION OF CO-HABITATIVE RELATIONSHIPS IN SOUTH AFRICA
South Africa does not formally recognize a co-habitative relationship. Co-habitation can however in certain instances result in the creation of certain legal consequences for the parties therein and there are Acts which defines a spouse as including a partner in a permanent relationship.
DEFINITION OF CO-HABITATION
Schaeffer in the Family Law Service defines co-habitation as a stable, monogamous relationship where a couple who does no wish to get married or is not allowed to get married live together as spouses. Schaeffer’s broad definition covers both the heterosexual and homosexual relationship scenario. A co-habitative relationship is essentially distinguished from marriage only by the fact that the couple is not legally married to one another. It is important to note that co-habitation does not include non-sexual relationships or relationships where more than two partners live together.
LEGAL CHARACTERISTICS OF A CO-HABITATIVE RELATIONSHIP
The four elements required for the creation of a co-habitative relationship which elements essentially coincide to a very large extent with that of marriage, are:
i) the existence of a sexual relationship between the couple ;
ii) the existence of a factual co-habitative relationship ;
iii) a durable and stable relationship ; and
iv) a relationship where the couple have a sense of responsibility towards each other.
PROTECTION OF RIGHTS AND INTERESTS
Couples in a co-habitative relationship are enjoined to enter into a formal contractual relationship with one another to protect personal interests and regulate the financial aspects of the relationship not only during the existence thereof but also upon termination of the relationship where relevant. In the absence of any written agreement to the contrary upon termination of the relationship there is very little legal regulation thereof and unlike the position with spouses, a party in a co-habitation relationship has no enforceable right to claim maintenance from the other party either during the relationship or upon termination thereof.