Life Partnership Agreement:
- In an age when most marriages fail, parties with a trail of prior relationships and marriages behind them may prefer to live together, rather than marry. Same-sex or heterosexual partners who choose not to get married should sign a domestic partnership (also called a life partnership or cohabitation) agreement to protect them should their relationship end. It is cheaper than ending up in court!
- Our law does not give automatic rights to partners in a cohabitation relationship. If they had the choice of getting married and they didn’t, the law does not come to their assistance.
- Many people believe that if they live together they are in a ‘common law’ marriage and are as good as married. That is simply not the case. An aggrieved party would have to go to court to show that the parties were partners in a ‘universal partnership’ and that the one party owes something to the other.
- If one domestic partner dies, the other has no automatic right to inherit according to the rules of intestate succession, and when the relationship ends, parties have no automatic legal duty to share in the assets accumulated during the relationship or to maintain the other beyond the relationship. A court may direct otherwise.
- If one of the parties owns the common home, the other must leave. Fathers of children born from domestic partnerships do not have automatic rights of access or custody but must apply for these rights.
What to include in a life partnership agreement:
The agreement provides for what happens if the relationship ends.
- Is it jointly or solely owned? If it is co-owned, then nothing happens on termination of the relationship: each party retains his or her share;
- If only one party owns it, provide for whether the owner must reimburse the non-owner for improvements done to the property at his or her expense. These must be recorded and vouched;
- If the common home is leased, the contract should provide for what happens after termination of the relationship: who must leave? Presumably, the person that stays must pay the rent for the unexpired portion of the lease? Will the landlord release the other party if they both signed the lease?
- Set out who brought what items into the life partnership (in an annexure) and how these household goods should be allocated on termination.
- Provide the basis for acquiring assets during the relationship and how to share the spoils after the event.
Your financial matters:
- Regulate who contributes to running expenses, the purchase of household necessary use, groceries, etc. Do you open a joint account for that purpose? What happens to debt, cars, etc., if the relationship ends?
- Do you have or intend to have children? Must one life partner support the other party during the relationship if such a partner is unemployed or staying home to care for small children born from the relationship?
- If applicable, provide for rehabilitative maintenance for the stay-at-home partner (to equip him or her to acquire marketable skills or become self-supporting).
- How should you deal with private property, gifts, donations, credit agreements, ownership or provision of motor cars, debts (credit cards, etc.), life insurance by parties for each other, pensions, wills.
- Provide for death, marriage of parties to each other, or going your separate ways
- In a ground-breaking judgment heard in the Supreme Court of Appeal in March 2012, in the matter between ANDREW KINLOCH BUTTERS and NOMSA VIRGINIA MNCORA, the parties were not married but lived together as husband and wife for almost 20 years. The court found that during their 19 years together, Mncora and Butters had formed a ‘tacit universal partnership’ entitling her to a slice of the pie when they went their separate ways:
“On all the evidence the all-embracing venture pursued by the parties, which included both their home life and the business conducted by the defendant, was aimed at a profit; a profit which, they tacitly agreed to share. …the plaintiff had succeeded in establishing a tacit universal partnership between her and the defendant.”