Cohabitation: Understanding Your Rights and Options

In South Africa, cohabitation—often referred to as “living together” or “common law marriage”—is not recognized as a legal relationship. The common belief that living together for an extended period results in a common law marriage is incorrect. Couples who live together do not enjoy the same legal rights as married couples, as there is no law governing the rights and duties of cohabitants towards each other.

For instance, a cohabitant does not have an automatic right to maintenance from their partner. This means that upon the termination of the cohabitation relationship, or the death of a partner, the surviving cohabitant cannot claim maintenance from their partner or from their partner’s deceased estate. Similarly, if a cohabitant dies without a valid will, their partner has no right to inherit under intestate succession.

Every couple is unique, with diverse backgrounds and situations. You might have children from previous relationships, or you may have entered the relationship later in life, bringing individual assets with you. Whatever your circumstances, there are essential steps you can take from the outset and agreements you should reach with your partner to avoid unnecessary distress and financial burden if the relationship ends or one of you passes away or becomes seriously ill.

Do You Need a Cohabitation Agreement?

Many individuals in cohabitation relationships ask, “Do I need a cohabitation agreement?” The answer is a resounding “Yes.”

Cohabitation agreements are becoming increasingly common. These agreements, also known as cohabitation contracts or domestic partnership agreements, document the arrangements between partners living together. Typically, these agreements cover financial arrangements during the relationship and the division of property, goods, and assets upon its termination.

Cohabitation agreements are legally binding. If one partner fails to adhere to the agreement, the other partner can seek assistance from the court, which will generally enforce the agreement.

What Do Cohabitation Agreements Cover?

• The ownership of property
• The ownership of personal belongings and furniture
• Financial contributions, including mortgage/rent and household expenses
• Maintenance payments upon termination of the relationship