Do you know who your wife is?

So your girlfriend has started sleeping over on weekends, a change of clothes and toothbrush are left at your place for convenience. It’s comfortable, you have fun together and pretty soon it’s not only on weekends anymore. Your girlfriend sleeps over so often that you both wonder “why pay two rents?” Before you know it you have a live-in girlfriend . . . or at least that’s what you think!

In November 1998, radical changes were made to our family jurisprudence with the enactment of the Cohabitational Relationships Act. Under this act, should you and your live-in girlfriend break up, the Court may award her with either a lump sum payment, maintenance payments for up to three years after the break up, or even transfer any property which you acquired or improved during the relationship or portion thereof to her. The fundamental purpose of this piece of legislation was to confer on “cohabitants” rights and obligations and to give the Courts jurisdiction to make orders with respect to property settlements and maintenance.

In other words though not conferring the legal status of marriage upon the parties, the rights and obligations of your live-in girlfriend/boyfriend may be very similar. Under the Act a “cohabitational relationship” is defined as “ . . . the relationship between cohabitants, who not being married to each other are living or have lived together as husband and wife on a bona fide domestic basis.” This definition begs several questions not the least of which include: What is a bona fide domestic basis? Can a cohabitant be married to someone else? Can one be living together as husband and wife if one is not of legal age? This certainly eradicates any conflict arising between legal spouses and cohabitants. One wonders why the same definition was not used in the Cohabitational Relationships Act? Why should one be able to acquire a right to claim upon a cohabitant’s resources during life which one could not after death or vice versa? Apart from this though, it is not every cohabitant who will obtain an award of maintenance or property settlement under the Act.

The court cannot make any order affecting the property of either party unless:
1. The applicant has lived in a cohabitational relationship with the Respondent for a period of not less than 5 years OR
2. The applicant has a child arising out of the cohabitational relationship OR
3. The applicant has made substantial contributions either directly or indirectly through financial contributions to the acquisition or improvement in property or financial resources or indirectly through contributions to the family as a home maker or primary care giver to a child of the family.
However, before we breathe a collective sigh of relief at the wisdom of our legislators for including these pre requisites a closer analysis of them is necessary.

Live in relationships for five years or more —
Quite frankly the stipulated five year requirement is completely arbitrary and as such artificial. Are our legislators of the view that after five years of living together it is only fair that you begin to acquire joint rights to claim upon your partner’s resources? What if it is five years of dysfunctional relationship fraught with unfaithfulness and abuse? What of five years with a married cohabitant? What of an existing legal spouse? Suppose in the first month of cohabitation you acquired a house for which you had been saving for five years previously — does your live in friend now acquire a right to claim on your home? Suppose one partner is pressing the other for a greater commitment and because of issues such as trust or betrayal etc the other party is unwilling? What if one has several consecutive five year or more live in relationships — is it really the policy of our legislators that each cohabitant would acquire rights to claim upon one’s resources? One wonders whether the legislators considered these issues and so many more that arise in these circumstances.

Child arising out of a live in relationship —
One wonders at the inclusion of this prerequisite since the law now already makes no distinction between children born in or out of wedlock. Provisions under the law for the maintenance and support of these children therefore already exists. The Cohabitational Relationships act now allows the “parent” of a child arising out of such a relationship to apply for maintenance for themselves or property settlements. What is important here is that it is wholly irrelevant whether the relationship lasted for five years or not. Under the act there is not stipulation as to the length of cohabitation necessary and/or whether the child should be born before, during or after the cohabitation. The anomaly here is that if your pregnant girlfriend lives with you for a month she may acquire rights to your resources!

Contributions during a live in relationship —
Again one wonders at the inclusion of this category since through the law of equity the Courts for decades have been making orders in favour of cohabitants where having regard to their contributions to the acquisition or improvement of property, the justice of the case requires it. The principles of fairness pre-dominate and the courts have always had discretionary powers in this regard.

Overall Policy behind legislation —
There can be no doubt that there appears in fact to be a global movement toward the legal acceptance of cohabitational relationships and accordingly a pressing of the legislators to recognise same. However the enactment of legislation as part of a sort of global intellectual persuasion without understanding the true impetus behind the movement can cause the anomalies some of which have already been herein outlined. It cannot be denied that most of the impetus behind this kind of legislative reform in other countries has come from cohabitants themselves, not the least portion of which is the growing homosexual community.

A google search online on the word “cohabitation” makes this quite clear. The importance of this factor is that the move toward the legal recognition of these relationships stems from the desire of cohabitants themselves who are choosing to live together unmarried and want their partners to be provided for. The movement therefore was to give effect to the needs, mores and wishes of our changing society and not as our legislation seems to contemplate to acts as a sword in the hands of an applicant against a live in partner. We, like Naipaul’s “mimic men” latched on to this press for reform without truly grasping the nature of its impetus thereby causing in some instances grave injustice.

Our legislation was framed with what seems to suggest an unbalanced focus on the protection of the woman an no real appreciation of the position of a man who for whatever reason prefers to remain unmarried. At least when you get married you are making a conscious choice to share your life and resources with your partner. With cohabitation however, under this piece of legislation this sort of claim upon your resources just creeps up on you with the passage of time. The expressed lack of consent by one part is ignored and the law now involuntarily imposes obligations. So that in effect without your ever saying “I DO” the law is saying “YOU WILL.”

Toward a solution —
Certainly there are many other provisions of relevance in the Act and this discourse does not in any way pretend to be exhaustive. One such provision is that the applicant ought also to convince the court that failure to make an order under the Act will result in grave injustice. In addition to this, the Court will recognise a “cohabitation agreement” entered into prior or during cohabitation. This can operate very much like a pre-nuptial agreement and can serve to protect the cautious cohabitant. Notwithstanding this however, the legislators have imposed what can only be termed very onerous obligations and conferred quite far reaching rights on unmarried cohabitants. At the very least, shacking up ought not to be taken lightly anymore! On a practical level men and women alike are advised to think very carefully before telling your partner “sure you can move in honey.”

Margaret Rose
LLB (Hons) LEC
Attorney-at-Law