Introduction
Cohabitation, often referred to as a “domestic partnership,” occurs when two people live together in a relationship resembling marriage without being legally married. In South Africa, such relationships have become increasingly common as more couples choose to live together without formalising their union.
However, despite their prevalence, South African law does not automatically recognise cohabitation as creating legal rights and duties between the partners. This gap underscores the importance of cohabitation agreements, which provide legal certainty and protection for both parties.
The Legal Position of Cohabitants in South Africa
Unlike marriage or civil unions, cohabitation is not governed by a specific statute in South African law. There is no legal concept of a “common-law marriage.” This means that, in the absence of a written agreement, cohabiting partners have no automatic right to property, maintenance, or inheritance from each other, regardless of the duration or nature of their relationship.
For instance, if one partner dies without a will, the surviving partner has no claim under the Intestate Succession Act 81 of 1987. Similarly, upon separation, there is no statutory right to spousal maintenance or division of property unless assets are jointly owned. Courts have recognised limited contractual, and enrichment claims between cohabitants, but these require complex litigation and are not guaranteed.
The Role and Purpose of a Cohabitation Agreement
A cohabitation agreement is a legally binding contract between partners living together, setting out their respective rights, duties, and financial arrangements. It can address matters such as:
- Ownership of assets acquired before or during the relationship.
- Contributions to household expenses and debts.
- Maintenance or financial support if the relationship ends.
- The division of jointly acquired property.
- Inheritance rights or life insurance benefits.
This agreement functions much like an antenuptial contract for unmarried partners. It provides clarity, reduces the risk of disputes, and ensures that both parties’ contributions, whether financial or otherwise, are fairly acknowledged.
The Need for Legal Reform
There have been ongoing discussions about recognising domestic partnerships in South African law. The Domestic Partnerships Bill, first proposed in 2008, sought to regulate the rights and duties of cohabitants, but it has yet to be enacted. Until such legislation is passed, a cohabitation agreement remains the most effective legal instrument to protect the interests of couples who choose not to marry.
Conclusion
Cohabitation relationships in South Africa currently exist in a legal grey area, leaving partners vulnerable in the absence of formal protection. A well-drafted cohabitation agreement ensures transparency, fairness, and security, providing peace of mind for both parties. At Malan Lourens Viljoen Inc we specialise in drafting comprehensive cohabitation agreements tailored to each couple’s unique circumstances. Our experienced legal team can help you safeguard your rights, protect your assets, and formalise your relationship in a way that reflects your shared intentions.
Article written by Erin O’Neale (LLB) - Attorney and Professional Assistant at Malan Lourens Viljoen Inc
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.