Cohabitational Relationships (Part 2)

In Part 1 we introduced the Cohabitational Relationships Act, one’s rights under this Act and examined cases where this Act came into play. In this article, we will delve deeper into the Cohabitational Relationships Act and the process to apply for a maintenance or property adjustment order.

According to the Cohabitational Relationships Act (“the Act”), a cohabitational relationship is a relationship between cohabitants, of the opposite sex, who are not married to each other but have lived or continue to live together as husband and wife on a genuine domestic basis.

In order to qualify to apply for a maintenance or property adjustment order, the applicant must prove to the Court that:

1. They have lived in a cohabitational relationship with the other party for at least five years; or
2. That they have a child arising out of the cohabitational relationship; or
3. That they have made substantial contributions.

Property Adjustment Order

The High Court may make a property adjustment order based on substantial contributions once it is considered just and equitable. The following considerations are made:

• Whether the contributions were financial (direct or indirect) toward acquiring or improving the property;
• The partners’ financial resources;
• Other contributions such as homemaking or parenting; and
• Any legal claims or rights a partner has over the property.

Additionally, the Court considers whether failure to make the order would result in grave injustice to the applicant.

An application to the Court under the Act must be founded on any one or more of the factors listed at (1)-(3) above and must be commenced within a period of two years from the date that the parties have stopped living together as husband and wife on a genuine domestic basis. The Court can permit a cohabitant to apply for an order after the two-year period if the applicant can prove that undue hardship would be caused to them or to a child of the cohabitational relationship, if they are not allowed to pursue the application.

The Act expressly outlines that the High Court has jurisdiction to make any order or grant any relief under the Act including declaring a title or right, adjusting property interests, or ordering regular or lump sum payments. The Magistrate’s Court, on the other hand, can only make maintenance orders.

Maintenance

The Act outlines specifically that there is no general right to maintenance. However, a Court may make a maintenance order where it is satisfied that:

• The applicant is unable to support himself/herself adequately as a result of having the care and control of a child of the cohabitational relationship;
• The applicant’s earning capacity has been adversely affected by the circumstances of the relationship, and in the opinion of the Court a maintenance order would increase the applicant’s earning capacity by enabling the applicant to undertake a course or programme of training or education; and
• That having regard to all the circumstances of the case, it is reasonable to make the order.

In determining whether to make a maintenance order and in fixing the amount, the Court considers, among other things, the following factors for each cohabitant:

• Age and health;
• Income, property and financial resources;
• Financial needs and obligations;
• Responsibilities to support anyone else;
• The duration of the relationship;
• A reasonable standard of living;
• The extent to which the applicant has contributed to the income, earning capacity, property and financial resources of the other cohabitant.

The Court is not empowered to make a maintenance order in favour of a cohabitant who has entered into a subsequent cohabitational relationship or has married or remarried. Further, an existing maintenance order ceases to have effect on the marriage or remarriage of the cohabitant in whose favour the order was made.

Should either cohabitant die before an application for maintenance is finalised, this would bring the matter to an end.

A maintenance order shall not exceed three years from the date on which the order was made. 

Cohabitant property rights

The High Court, in exercising its powers may order, among other things:

• The transfer of property;
• The sale of property and the distribution of proceeds of sale in proportions as the Court thinks fit;
• A lump sum payment;
• A weekly, monthly, yearly or other periodic payment.

It may be worthy to note that the five-year period of cohabitating must be continuous, however, small breaks may be discounted and does not necessarily prevent the applicant from proving that a cohabitational relationship existed.

Finally, there is no requirement that each or even both parties must be single, as a cohabitational relationship may exist despite the fact that one or both cohabitants are legally married to someone else.