Free Sample Cohabitation Agreement

Cohabitation  – Living  Together Agreement

The following form is intended for illustrative purposes only. You and your attorney can use this sample as a guide in drafting a cohabitation agreement that best protects your interests and complies with the laws in effect where you live.

Why do I need a Cohabitation Agreement?

A Cohabitation Agreement sets out the financial terms of a couple’s relationship, and provides protection for the parties upon death, or should the relationship fail. 

Who should use a Cohabitation Agreement?

Any unmarried couple in a relationship and living with each other could find this agreement useful.

Also known as:

  • Conditions of Cohabitation
  • Cohabitation Contract

It is advisable that you contact an attorney in regard to drafting such an agreement.

COHABITATION AGREEMENT

Between

(The 1st Party)

and

(The 2nd Party)

PREAMBLE

WHEREAS

1.  The parties are currently living together in a domestic partnership and intend to continue living together in this arrangement;

2.  The parties wish to define their respective proprietary rights and liabilities arising from their domestic partnership arrangement;

3.  The parties each acknowledge that they enter into this agreement voluntarily, without any duress or undue influence, and that each has had the opportunity to consult with an attorney of his/her choice;

THE PARTIES AGREE:

1.         Marital Status

The joint residency of the parties shall in no way render the parties married in any way, whether by operation of common law or any other law.

2.         The Agreement

2.1       This Agreement consists solely of the mutual promises contained herein and the mutual promises of each party to act as the living companion and partner to the other.

2.2       This Agreement fully contemplates and compensates any and all services provided by either party for the benefit of the other during the course of their joint residency. The furnishing of sexual services shall in no way be construed as consideration for this Agreement.

3.         Disclosure of Current Financial Status

Each party has fully and completely, to the best of his/her knowledge, disclosed to the other party his/her current financial condition including all assets and liabilities. Each party has attached a balance sheet to this agreement indicating his/her current assets and liabilities with the understanding that this balance sheet reflects his/her current financial status to the best of his/her ability.

4.         Division of Living Expenses

Necessary and jointly approved living expenses shall be divided between the parties as below:

4.1       The 1st Party shall contribute _____________ percent ( ____%) per month;

4.2       The 2nd Party shall contribute _____________ percent ( ____%) per month.

The parties shall contribute their monthly pro rata contributions into the joint savings/current account of the parties. Any property purchased using funds in this account shall be considered to be the joint property of the parties and owned according to the respective party’s percentage of contribution as stated above. Either party may draw upon this checking account.

5.         Separate Property

The following properties shall be kept by the parties as the separate property of the recipient and the said properties shall not be subject to division at the termination of this Agreement:

5.1       All and any property, real or personal, owned by a specific party at the date of execution of this Agreement;

5.2       Individual gifts, bequests or inheritances acquired before or after the execution of this Agreement;

5.3       Individual earnings, salary or wages acquired before or after the execution of this Agreement;

5.4       All income or proceeds derived from the aforementioned properties.

6.         Commingling of Property

All commingled property shall be presumed to be joint property of the parties unless otherwise agreed.

7.         Joint Property

All property acquired by the parties after the date of execution of this Agreement and before the termination of this Agreement and procured jointly with joint resources and funds shall be considered joint property of the parties with each party possessing his/her aforementioned percentage of ownership.

8.         Division of Property upon Termination

Upon termination of this Agreement or termination of the joint residency, all jointly owned property shall be divided among the parties according to their pro rata share listed above.  If the parties are unable to agree on the appropriate division of joint property, they may appoint an independent and mutually agreed upon Third-party to act as Appraiser.  The Appraiser shall divide the property among the parties according to his/her pro rata share.

9.         Duty of Good Faith and Confidentiality

9.1       This Agreement creates a fiduciary relationship between the parties in which each party agrees to act with the utmost of good faith and fair dealing toward the other in the management of their joint property and in all other aspects of this Agreement.

9.2       Without obtaining a parties’ written consent in advance, a party shall not directly or indirectly publish, or cause to be published, any diary, memoir, letter, story, photograph, interview, article, essay, account, or description or depiction of any kind whatsoever, whether fictionalised or not, concerning the relationship or any other aspect of a parties’ personal, business or financial affairs, or assist or provide information to others in connection with the publication or dissemination of any such material or excerpts thereof.

10.       Legal Names of Parties

Each party shall retain his/her legal name, including surname, as printed and signed in this Agreement.

11.       Duration of Agreement

This Agreement shall become effective at the date of execution and shall remain in effect until termination. Termination shall be effected by written notice by either party, cessation of the joint residency by either party or death of either party.  Either party may terminate this Agreement unilaterally at any time.

12.       Death of Party

Upon the death of either party, the surviving party waives all rights to support by the deceased party.

13.       Complete Agreement

It is the intent of the parties that this Agreement be the full and complete agreement between the parties regarding their joint residency.  No variation of this agreement shall be of force or effect unless reduced to writing and signed by both parties.

14.       Severability of Provisions

Should any paragraph or provision of this Agreement be held invalid, void, or otherwise unenforceable, it is the intent of the parties that the remaining portions shall nevertheless continue in full force and effect without impairment.

15.       Governing Law

This Agreement shall be governed by, interpreted and construed in accordance with the laws of the Republic of South Africa.

DATED at                                     this                  day of                                    201_

AS WITNESSES:

 

1.

 

2.

 

DATED at                                     this                  day of                                    201_

AS WITNESSES:

 

1.

 

2.

 

Compiled by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Cohabitation Agreements in South Africa

Cohabitation Agreements

None of the consequences of a marriage automatically ensue if partners simply live together. Thus life partners do not automatically have the right to share in the other’s property during or after the relationship. Life partners are able to use contracts to achieve a measure of protection as against each other as well as against third parties. They may for example purchase assets jointly, or jointly enter into lease agreements, credit agreements etc. in such cases the terms of each contract will determine the rights, duties and obligations of each of the life partners. Usually the life partners are the joint owners of the assets acquired and joint debtors in respect of the obligations incurred.

Where the life partners are the joint owners neither of them can exclude the other from using or controlling such assets. Unless they have entered into a partnership agreement either of them may alienate his/her own share of the jointly owned assets without the other’s consent. If the life partnership breaks down and the life partners can’t agree how to divide the assets either of them may institute the action communi dividundo in which event the court will then appoint a receiver or liquidator to divide the assets.

It is best that life partners regulate their rights in terms of a cohabitation agreement. In this agreement they may for example undertake that they will maintain each other while the relationship lasts, agree to posy separation maintenance, regulate ownership of the property each of them owned before the start of the relationship, agree on property acquired after the relationship started, agree on occupation of the common home during the relationship and after termination and so forth.

Partners living together should enter into a cohabitation agreement. I have dealt with numerous disputes over the years where partners terminated a relationship with or without an agreement in place and it is usually where there is no agreement in place that the turmoil starts.

Bertus Preller

Family and Divorce Law Attorney

Abrahams and Gross Inc.

 

Is adultery in South African Law still a basis for a claim against the mistress?

From a personal, moral, ethical and religious perspective adultery is a sin and an act contrary to the basis of trust between married spouses and so is the behaviour of that infamous third party that broke up the marriage seen as immoral.  The purpose of this article is to revisit the law in respect of an aggrieved parties’ right to institute a claim for damages against the third party that was privy in the break-up of a marriage, i.e a claim against the mistress for monetary relief, to make good the hardship caused by the affair and the enticement of the spouse to leave the communal home in search of the greener pastures. The article is purely focussed on the law and not the public view or for that matter the religious viewpoint.

Our law has recognised in the past a claim for damages that can be instituted by an aggrieved spouse against a mistress. But what does our law say on the subject and is the law evolving away from the public view and religious views.

It is argued that the South African common law on which a Plaintiff’s claim is predicated for damages against a spouse who committed adultery in a marriage must be developed to promote the spirit, purport and objective of the Bill of Rights contained in Chapter 2 of the Constitution of South Africa, 1996 (“the Constitution”) and the interests of justice (under Section 39 (2) and section 173 of the Constitution).

According to the view expressed above it is argued that the time has come to develop the common law so as to remove or curtail claims for damages by a married person, utilising the actio iniuriarum, against a person involved in an intimate relationship with the married person’s spouse. The actio iniuriarum is used to claim for the impairment of one’s personality.  The purpose of this action is to compensate for the intentional injury to one’s mental integrity.

The argument against such a claim is that it breaches the right to human dignity (of the adulterer and mistress) under Section 10 of the Constitution, in that:

(a)               The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium;

(b)               The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and

(c)                The mistress is treated as an instrument, in that her human relationship with the adulterer is used as a means to express condemnation for the adulterer’s marital infidelity, and/or to generate sympathy for the aggrieved spouse.

It is further argued that such a claim breach the adulterer and mistress’s rights to equality and freedom from discrimination under Section 9 of the Constitution on basis of marital status, conscience and belief in that:

(a)               No similar claim for damages is possible against a person who begins an intimate relationship with a man or a woman involved in a long-term homosexual or heterosexual relationship, customary law marriage or religious union;

(b)               The emotional consequences and loss for the aggrieved partner (i.e the person who learns of the infidelity of his or her partner with a third person) in all of the above relationships may be no more or less serious than a spouse in a marital relationship;

(c)                The law accordingly differentiates between a person who enters a relationship with a married person; and a person who enters a relationship with a person in other types of committed, long-term relationships;

(d)               The differentiation amounts to unfair discrimination on the basis of marital status and on the basis that it impairs, or has the potential to impair, the fundamental human dignity of an adulterer and a mistress.

It can further be argued that an adulterer and mistress’ right to privacy under Section 14 of the Constitution is violated in that it causes a public inquiry into the details of their relationship, how it formed and its strength.

Furthermore it seems that an adulterer and mistress’ rights to freedom of conscience, thought, belief and opinion under Section 15 of the Constitution, expression under Section 16 (1) of the Constitution and freedom of association under Section 18 of the Constitution also come into play for the following reasons:

(a)               Burdening people such as the mistress with damages will have a detrimental effect on her ability to honestly and openly express her emotions and love for another person;

(b)               The expression of emotions and love between the adulterer and mistress will be treated as morally reprehensible or tainted with moral opprobrium.

Therefore it seems that the common law must be developed in the interests of justice taking in to account the recognition that both parties contribute to the breakdown of the marriage relationship, which is inherent in the ground for divorce introduced in Section 4 of the Divorce Act 70 of 1979, namely “the irretrievable breakdown of the marriage”.

It is so that many foreign jurisdictions don’t tolerate such claims anymore and that there seems to be developments in South African case law to that effect. The historic view in our law that damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium seems to be outdated and time will tell on how our courts will develop the common law.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc

Divorce, can my spouse evict me from the matrimonial home?

The provision of accommodation and household assets forms part of the duty to support and therefore the occupation of the matrimonial home and the use of the household assets are closely related to the duty of support.

During the subsistence of the marriage both spouses are entitled to live in the matrimonial home and to make use of the household assets such as appliances and furniture, irrespective of whether they were married in or out of community of property and irrespective of which spouse owns or rents the matrimonial home or household assets. The latter is a unique and invariable consequence of a marriage.

As a general rule the spouse who rents or owns the property may therefore not eject the other spouse from the matrimonial home without providing him or her with a suitable alternative of accommodation, nor may the other spouse eject the spouse that rents or owns the property from the matrimonial home. The interests of the children as well as matrimonial guilt play an important role. The Constitution of the Republic of South Africa also plays a role in that Section 28 (2) requires that a child’s best interests must be paramount in all matters relating to children. Therefore even the “innocent” spouse can be ejected from the matrimonial home if that will be in the best interests of the child.

A spouse who is subject to ejectment from the matrimonial home or who is barred from using the household assets can approach the court for an interdict to stop the other spouse from doing so. If the right has already been violated and for example where the other spouse has changed the locks or has denied the other spouse access, the aggrieved spouse can approach the court to invoke what is called in law the mandament van spolie.

I recently handled a matter where one spouse was ejected from the family home without an offer of alternative accommodation. We applied under the Domestic Violence Act, 116 of 1998 for emergency monetary relief pending the institution of a Rule 43 Application and were successful in obtaining monetary relief for the deposit on a new house and the monthly rental instalments.

Written by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

http://www.divorceattorney.co.za

info@divorceattorney.co.za

Guardianship who will look after your children when you pass away?

People don’t usually want to think about death, but as a parent, what will happen to your children after you passed away? As a parent you will have to take steps now to secure your children’s future care.

The following scenario happens all too often. Judy and Mark divorced after having three children. Mark had an affair and left Judy for someone else. Judy is now in a relationship with Ben and she and the children lived with Ben for the past 5 years in Cape Town. Ben is an awesome father and has taken care of the children as if they were his own. Mark paid little maintenance and did not show much interest in the children for the past few years. Judy then passes away. Within a few weeks after her death Mark appeared on the scene demanding that children live with him and his new wife in Johannesburg. Ben is devastated as loves the children and the children are devastated too.

The parents of a child who are married or have been married to each other are normally both the co-guardians of the child, unless a court order specifies otherwise or in the case of parents who never married, the biological father if he acquired parental rights and responsibilities and guardianship. In case of death the surviving parent normally becomes the sole natural guardian of the child.

Section 27 of the Children’s Act specifies that a parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of death of that parent. Such an appointment must be contained in a Will made by the parent. So if one parent has sole care or guardianship then that parent can appoint a fit and proper person to take care of the children when he/she dies. If one parent has only been granted care (opposed to sole care) the ex-spouse automatically obtains care on the death of the other parent. So in the event that you nominate another person where you don’t have sole care or guardianship your ex-spouse will have to consent or give up on his/her rights. If your ex-spouse is the co-holder then he will automatically gain care and guardianship in case of your death. If a parent is unfit the court may well award guardianship to someone else, it has to be noted that all decisions in relation to a child must be made in the best interests of the child and the court will consider a number of facts, such as the commitment the person applying has shown towards the child, the extent in which he contributed to the child’s expenses, the relationship between the child and that person whose rights and responsibilities are being challenged and any other factor that the court will deem necessary to take into in account.

So, any wish you have as to whom should be taking care of your child on your death should be contained in your Will, providing that you have sole care and guardianship, otherwise it will not be enforceable.

Care in terms of the Act means, providing the child with a suitable place to live, offering living conditions that are conducive to the child’s health, well-being and development and the necessary financial support, safeguarding and promoting the well-being of the child, protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards, guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development, guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development, the behaviour of the child in a humane manner, maintaining a sound relationship with the child, accommodating any special needs that the child may have and generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child.

In terms of Section 31 of the Children’s Act, before a person holding parental responsibilities and rights in respect of a child takes any decision involving the child, such as the assignment of guardianship or care in respect of the child to another person that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development. There is no specific age set in terms of the Act, but the older and more mature the child the more their wishes will be taken into account.

Section 10 of the Act also stipulates that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.

If you die and the other parent is also no longer alive the grandparents on either side may apply for the child’s care or guardianship.

Written by:

Bertus Preller

Family and Divorce Law Attorney

Abrahams and Gross Inc.

http://www.divorceattorney.co.za