In South Africa, many couples live together for years without ever legally marrying. While this may feel like a modern and flexible arrangement, it creates a significant legal blind spot. Cohabiting couples have no automatic legal protections—particularly when it comes to property rights, financial responsibilities, and inheritance.

South African law does not formally recognise cohabitation as a legal status. If the relationship ends—through separation or death—cohabiting partners are often left with no legal claim to the shared home, jointly acquired assets, or financial support, regardless of how long they were together.

Understanding what legal options are available and taking proactive steps—such as drafting a cohabitation agreement—is essential to protect both parties. Here's what long-term cohabitees need to know about their legal standing and property rights.

For more on marital property structures and formal contracts, see our Marriage & Matrimonial Property Services.

Cohabitation Meaning and Legal Status in South Africa

Cohabitation refers to two people living together in a long-term, committed relationship without being married or in a civil union. This includes both heterosexual and same-sex couples.

Despite the widespread nature of these relationships, South African law does not confer any automatic rights to cohabiting partners. The term "common-law marriage" is often used informally, but it has no legal status in South Africa.

Cohabiting couples are therefore not protected by the Matrimonial Property Act or the Divorce Act. Any rights or claims must be established either through a written agreement or, in limited cases, by proving a universal partnership.

Property Rights in a Cohabiting Relationship

When married couples divorce, legislation guides how property is divided. For cohabiting partners, no such automatic framework exists. Property ownership and financial entitlements must be proven.

Ownership of assets will typically depend on:

• Whose name appears on title deeds, vehicle registration documents, lease agreements, or bank accounts
• Whether there is a written or verbal agreement to share property
• Whether one partner can prove the existence of a universal partnership

Common Scenarios

If the property is in one partner’s name:

• The partner not listed on the title deed or lease has no legal claim unless they can prove contribution or a partnership agreement.

If the property is jointly owned:

• Where both names appear on a deed or lease, both parties have legal rights, regardless of financial contribution. Disputes may arise when one party contributed more than the other.

If one partner rented the home:

• Only the leaseholder has a right to remain in the home. The other partner may have to leave after the relationship ends, unless otherwise agreed.

The Role of a Cohabitation Agreement

A cohabitation agreement (or cohabitation contract) is a written document that defines the financial and property-related arrangements between two people living together without being married. It helps avoid disputes and provides clarity if the relationship ends.

A well-drafted agreement typically covers:

• Ownership of property and financial contributions
• Division of assets if the relationship ends
• Responsibility for debt, rent, or mortgage payments
• Provisions for maintenance or spousal support (if agreed)
• Child-related care and financial arrangements (if applicable)

Although not automatically required, a cohabitation agreement is the strongest legal protection for unmarried couples. It helps establish certainty and ensures both partners have a clear understanding of their rights and responsibilities.

What Happens If You Separate?

Cohabiting partners have no statutory rights to maintenance or asset division when the relationship ends. Without a cohabitation agreement, you may need to rely on litigation to pursue a claim.

Legal Options

Universal Partnership Claims:

You can attempt to prove the existence of a universal partnership if you can show:

• Both parties intended to share profits
• There was a joint venture or collaboration (financial or otherwise)
• Contributions (monetary or domestic) were made with the goal of mutual benefit

If proven, the court may divide the assets according to each partner’s contribution.

Civil Claims:

If your partner refuses to share an asset you helped purchase, such as a car or property, you may be able to bring a claim for unjust enrichment or restitution. These claims are complex and require evidence of your financial or non-financial contributions.

Inheritance Rights for Unmarried Partners

The law does not grant cohabiting partners automatic inheritance rights. If your partner dies without a will (intestate), you will not inherit any part of their estate unless:

• You are named as a beneficiary in a valid will
• You jointly own assets (e.g. bank accounts or immovable property)
• You are able to claim financial dependency under certain circumstances through the Maintenance of Surviving Spouses Act (which does not currently include cohabitants but has been challenged in court)

To protect your interests, both partners should draft a will clearly outlining who inherits what.

Children in Cohabiting Relationships

South African law does not treat the children of cohabiting couples differently from those born in a marriage. Both parents have equal rights and responsibilities under the Children’s Act, provided they meet the legal criteria.

If the relationship ends:

• A parenting plan should be established or formalised through the court
• The primary caregiver can apply for child maintenance from the other parent
• Decisions about care and contact will be based on the child’s best interests

Having an agreed-upon parenting plan in writing can help avoid conflict and protect the child’s well-being.

Protection Against Abuse in Cohabiting Relationships

Cohabiting partners are fully protected under the Domestic Violence Act. If one partner is abusive—physically, emotionally, or financially—the other may apply for a protection order.

Domestic relationships covered by the Act include people living together in a romantic or intimate partnership, regardless of legal marital status.

The Legal Gap and Reform Discussions

There have been ongoing discussions about reforming South African law to provide greater protection for long-term cohabiting partners. Several court rulings have highlighted the legal and financial vulnerability of partners in these relationships.

However, until such reforms are passed into law, unmarried partners must take personal responsibility to formalise their arrangements through cohabitation agreements, wills, and documented financial contributions.

Why Legal Guidance Matters

Cohabiting without marriage offers flexibility, but it also exposes you to risk. One partner may walk away with most or all shared assets, even if the other contributed financially or otherwise. If one partner dies without a will, the survivor may lose their home or savings overnight.

Legal guidance is essential for:

• Drafting and reviewing a legally enforceable cohabitation agreement
• Advising on property ownership and shared investments
• Navigating universal partnership claims and disputes
• Preparing wills and estate plans that protect cohabiting partners

Van Deventer and Van Deventer Inc. – Protecting Your Rights in Cohabitation

At Van Deventer and Van Deventer Inc., we offer tailored legal solutions for individuals and couples in cohabiting relationships. Our services are designed to reduce your legal exposure, clarify your financial responsibilities, and ensure that you’re not left vulnerable in the event of separation or death.

Whether you need assistance drafting a cohabitation agreement, resolving a property dispute, or planning your estate, our experienced attorneys in Johannesburg are here to help.

Your relationship may not require a marriage certificate—but it does deserve legal certainty.

Learn more about your options at our Marriage & Matrimonial Property Services, or contact us to book a confidential consultation.