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Are you living together with your partner? Consider a cohabitation agreement. 

Did you know? Cohabiting with a partner does not automatically afford you any protection, if the relationship ends.

In South Africa the Supreme Court of Appeal recently confirmed this in the case of McDonald v Young. The issues which the court had to decide upon were twofold namely whether Mr McDonald had established the existence of a joint venture agreement between the parties, alternatively, whether Ms. Young was under a duty, either by operation of law or by virtue of a tacit contract, to support Mr. McDonald subsequent to their cohabitation.

The parties were involved in a relationship and had cohabited, as man and wife, for approximately seven years. Shortly after the parties were introduced to each other Mr. McDonald took up residence with Ms. Young at her farm in Knysna. Mr. McDonald did not own any meaningful assets and had very limited income. Ms Young, on the other hand, was a woman of considerable means. Mr. McDonald had not received a regular income and he had, for a time during the course of their relationship, received a monthly allowance from Ms. Young.

After the relationship ended, Mr McDonald instituted legal action against Ms. Young.

Mr. McDonald claimed a half share in a property owned by Ms. Young on the basis, as alleged, that an express verbal joint venture agreement was concluded by them. He testified that the terms of the agreement were that Ms Young would contribute financially to the acquisition, completion and refurbishment of the property while Mr. McDonald would contribute his time and expertise to oversee the development of the property.

In this regard the Court held that Mr. McDonald had failed to show that a joint venture agreement did in fact exist and the claim was dismissed.

The alternative claim raised by Mr. McDonald was one for maintenance. The Court referred to previous case law and held that there was a reciprocal duty of support between married persons, but no duty of support arises by operation of law in the case of unmarried cohabitants. It was further held that to the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement only and only to the extent of that agreement.

Mr. McDonald tried to convince the court that the parties had entered into a tacit agreement in terms of which Ms. Young had agreed to support him even after the end of their relationship, but to no avail. The Court batted his argument out of court and the Appeal was dismissed.

If you are cohabiting with a partner, as man and wife, then ensure that you sign a cohabitation agreement which will regulate the financial consequences of your relationship.