Cohabitation and the reciprocal duty of support

For many years South African courts have emphasized the importance of marriage as a social institution and valued the rights and obligations that flow from it. One of the most important obligations is the reciprocal duty of support and South African law recognizes various forms of family relationships that create this duty. Today, many people prefer to live together without entering into a marriage or civil union. This has been referred to in court judgments as ‘cohabitation’.

In a recent case, the Cape Town High Court had to determine whether a reciprocal duty of support existed between a couple that were involved in a brief period of cohabitation. A married German man (the respondent) entered into romantic relationship with a South African woman (the appellant) and allowed her to live in his house as he was in Germany for most of the year. He provided her with funds to maintain the house and gave her numerous gifts. The romantic relationship soon came to an end and he requested that she find elsewhere to stay. She refused to vacate and claimed that he had promised to allow her to stay in his house for ten years. He denied this allegation and stressed that he had no obligation to maintain the appellant.

The Magistrate’s Court agreed and held that there was no reciprocal duty of support between parties in a cohabitation relationship.

The matter then went on appeal in the Cape Town High Court and Judge Goliath and Judge Schippers agreed that although no reciprocal duty of support arises from a cohabitation relationship, it is still possible for the duty to be regulated by agreement. The Judges discussed that sometimes an express or implied universal partnership exists between parties in a cohabitation relationship. A universal partnership exists when parties act like partners without entering into a partnership agreement and both parties contribute to the partnership for their joint benefit.

The fact that the appellant was allowed to stay in the respondent’s property was solely based on the romantic relationship and the respondent never envisaged that the appellant would play an active role in his personal affairs. The respondent emphasized that they had not established a joint household and that the appellant had never contributed towards his expenses.

The Judges therefore decided that no universal partnership existed between the parties and therefore there was no duty of support. As a result, the appellant was ordered to vacate the property.

Read the judgment here: http://www.saflii.org/za/cases/ZAWCHC/2014/120.html