What is a Cohabitation Agreement?
A legally binding contract that protects unmarried partners living together in South Africa.
A Contract Between Life Partners
A cohabitation agreement (also called a life partnership agreement or domestic partnership agreement) is a legally binding contract between two people who live together in a committed relationship without being married.
The agreement sets out each partner’s rights and obligations regarding:
- Property ownership — what belongs to whom
- Financial contributions — how household expenses are shared
- Joint assets — how property acquired together is divided
- Debts — who is responsible for what
- What happens if you separate
- What happens if one partner dies
Think of it as a prenuptial contract for unmarried couples — except without the marriage.
The “Common-Law Marriage” Myth
There is no common-law marriage in South Africa.
Many people believe that living together for a certain number of years creates a legal relationship similar to marriage. This is not true.
No matter how long you live together — 2 years, 10 years, or 30 years — you do not automatically acquire any of the legal rights that married couples enjoy.
The Constitutional Court confirmed this in Volks NO v Robinson (2005), ruling that the law does not extend the same protections to cohabiting partners as to married spouses. While the more recent Bwanya v Master of the High Court (2022) has opened the door to some recognition, the legal position remains uncertain and heavily dependent on individual circumstances.
A cohabitation agreement removes this uncertainty. Instead of relying on a court to determine your rights after the fact, you and your partner decide upfront — in writing — what your arrangement is.
What Does a Cohabitation Agreement Cover?
Property and Assets
The agreement records what each partner owns at the start of the relationship and sets out how property acquired during the relationship will be owned. This prevents disputes about who contributed what.
Household Expenses
You can agree on how rent, utilities, groceries, and other living costs are shared — whether equally, proportionally to income, or in any other arrangement that suits you.
Financial Support
Unlike married couples, cohabiting partners have no automatic maintenance obligation. Your agreement can include (or exclude) provisions for financial support during and after the relationship.
Children
While parental responsibilities are governed by the Children’s Act regardless of your relationship status, a cohabitation agreement can address financial contributions toward children and living arrangements.
Separation
The agreement sets out exactly what happens if you separate — how assets are divided, who keeps the home, and whether any financial support continues. This avoids costly court battles.
Death
A cohabitation agreement can complement your will by recording each partner’s assets and intentions. Important: the agreement itself does not create inheritance rights — you still need a valid will to inherit from each other.
Why Must It Be Notarised?
You could write a private agreement on a piece of paper and both sign it. Legally, that contract would be binding between the two of you. But there are serious limitations:
- A private agreement has no effect on third parties (creditors, banks, the Master of the High Court)
- Its authenticity can be challenged — “I didn’t sign that” or “I was forced to sign”
- There is no independent record of its existence
A notarial cohabitation agreement is different:
- It is signed before a Notary Public who verifies both partners’ identities and ensures both understand the agreement
- It is bound into the notary’s protocol and assigned a unique Protocol Number
- It becomes a public document that carries significant evidentiary weight in court
- Its authenticity cannot easily be challenged
For life partner visa applications, the Department of Home Affairs requires a notarial agreement — a private document will not be accepted.
Cohabitation Agreement vs Prenuptial Contract
| Cohabitation Agreement | Prenuptial (Antenuptial) Contract | |
|---|---|---|
| Who is it for? | Unmarried partners living together | Couples planning to marry |
| Legal basis | Contract law (agreement between parties) | Matrimonial Property Act 88 of 1984 |
| Registration | Notarial protocol (Protocol Number) | Deeds Office registration required |
| What it regulates | Property, finances, separation, death provisions | Matrimonial property regime (accrual system) |
| Creditor protection | Limited — depends on terms | Yes — excludes community of property |
If you are planning to get married, you need an antenuptial contract, not a cohabitation agreement. Visit marriagecontract.co.za for more information.
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