Marriage vs. Cohabitation: How to Protect Your Rights and Assets

This year we witness a once-in-every-four-years phenomenon: the Leap Year. The elusive 29th February, through its rarity, holds a certain mystique with more than its fair share of traditions. Coupled with the month’s long-standing association with love, this is the day when women the world over are granted a licence usually reserved for the domain of men: the rare opportunity to propose to her man.

For many, however, this notion may well offend a few sensibilities. Whilst any surviving Victorian-era spinsters may be reaching for their smelling salts at the mere thought of a woman being so forward, the more liberated amongst us are probably asking two questions:

• Why should a woman be restricted to a mere one day in four years if she wishes to take the initiative to prod her other half to the altar?
• And why get married if you don’t want to, anyway? Marriage is so last century!

The turn of the century has seen more and more couples opting to live together as opposed to getting married. This type of relationship is often referred to as a domestic partnership, cohabitation agreement, living together, life partnership, common-law marriage or the more antiquated – living in sin! Cohabitation relationships occur between both heterosexual and same sex couples. In both instances the relationship involves the same central themes and reciprocal duties of support, but without having been solemnised as a legally recognised marriage. Which means cohabitation does not attract the same level of legal protection that a legally recognised marriage does.

Cohabitation involves a great deal of personal commitment and emotional investment. It also carries other consequences that, if not discussed, agreed to and recorded in writing, could cause major problems at the end of the relationship. And know this: the relationship will end. If not through separation, then definitely through death – barring a revolutionary discovery of the elixir of life!

A lawfully recognised marriage is currently the only relationship that fully protects the rights of spouses, without the need to enter into additional agreements. With marriage comes an automatic and reciprocal duty of maintenance and support between spouses, and the right to inherit on intestate succession (meaning death without a will), amongst other things. For unmarried couples whose relationship comes to an end the picture looks somewhat different. In the absence of an agreement between the couple, either party could approach the court for the likes of a maintenance order, an order to split property, or for an order to inherit under intestate succession. In these instances the courts would look at all the circumstances of the relationship, and there is no guarantee that the application will be successful. Added to which, this approach would also prove to be an expensive and time consuming one.

There is a way for an unmarried, cohabiting couple to bring more certainty to the patrimonial consequences of their relationship without the institution of marriage. They could enter into a life partnership agreement, otherwise referred to as a cohabitation agreement, setting out their reciprocal duties of support and maintenance. Such an agreement should address various proprietary consequences, such as the consequences of death or separation, ownership of assets acquired both prior to and during the relationship, and the payment of household expenses. A suitable agreement should also include reference to the duty of support, any rights to share in each other’s property, the extent of this sharing, and what happens on termination. When the relationship ends, whether on death or separation, the provisions of the life partnership or cohabitation agreement can then be used to direct the division of assets.

Couples who live together are therefore urged to consider entering into a Cohabitation Agreement, and simultaneously ensure that they have Wills in place to protect their proprietary interests.

In Summary: You can get married. Or not. Either way, there should be certainty regarding the financial and proprietary aspects of your relationship. For unmarried couples, a Cohabitation Agreement can assist in you in getting your proverbial house in order.

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.