Cohabitation Rights: What Unmarried Couples Need to Know

The Myth of "Common Law Marriage"

Many South Africans believe that if you live with a partner for a certain period (e.g., 5 or 10 years), you automatically become "common law spouses" with the same rights as married couples. This is false.

South African law does not recognize common law marriages. No matter how long you've lived together, the law treats you as legal strangers unless you take specific steps to protect yourselves.

What Rights Do Unmarried Couples Have?

The short answer: Very few, unless you create them through legal agreements.

Rights You DON'T Have:

• No automatic right to inherit if your partner dies without a will.
• No right to claim maintenance from your partner if you separate.
• No automatic ownership of property, even if you contributed financially.
• No tax benefits (married couples get exemptions).
• No automatic right to make medical decisions for an incapacitated partner.
• No pension or provident fund claims as a "spouse."

Rights You DO Have:

• If you have children together: Both parents have equal rights and duties.
• If you can prove a universal partnership: You may claim a share of joint assets (see below).

What is a Universal Partnership?

A universal partnership is a legal concept where courts may recognize that a cohabiting couple operated like business partners—sharing finances, property, and responsibilities.

Requirements:

1. Each partner contributed something (money, labor, property, skills).
2. The partnership was for mutual benefit.
3. Both parties intended to operate as partners.

Important: Proving a universal partnership is difficult, expensive, and uncertain. It requires litigation.

How to Protect Your Rights: Cohabitation Agreements

The best way to protect yourself is to enter into a written cohabitation agreement (also called a life partnership agreement).

What Can Be Included?

• Property ownership - Who owns what?
• Financial contributions - How are expenses split?
• Joint bank accounts - What happens to the money if you split?
• Debt - Who is responsible?
• Maintenance - Will one partner support the other after separation?
• Death - What happens to shared property?

Is It Legally Binding?

Yes, if it is properly drafted and signed. Both parties should have independent legal advice.

Cost: R3,000 to R10,000.

Property Ownership for Unmarried Couples

If the house is registered in only one partner's name, the other partner has no legal claim—even if they contributed to bond repayments, renovations, or lived there for years.

Best Practice: Draft a co-ownership agreement stating ownership percentages and what happens if one partner wants to sell.

What Happens if Your Partner Dies?

If your partner dies without a will, you have no automatic right to inherit—even if you lived together for decades.

What You CAN Do:

• Both partners must have wills that leave assets to each other.
• Nominate each other as beneficiaries on life insurance and retirement annuities.
• Consider a living trust to hold property jointly.

Children Born to Unmarried Couples

Good news: Children born to unmarried parents have the same rights as children born to married parents.

Both parents have a duty to maintain the child and parental responsibilities and rights.

Practical Steps to Protect Yourself

1. Draft a Cohabitation Agreement
2. Make a Will
3. Nominate Each Other as Beneficiaries
4. Register Property in Both Names
5. Keep Financial Records
6. Consider a Living Trust
7. Get a Power of Attorney

Key Takeaways

• South Africa does not recognize "common law marriage"—you have no automatic rights.
• The best protection is a written cohabitation agreement drafted by a lawyer.
• Both partners must have valid wills and nominate each other as beneficiaries.
• Children of unmarried couples have the same rights as children of married couples.
• Property should be registered in both names with a co-ownership agreement.
• Don't rely on proposed legislation—protect yourself now.