Do I Need a Cohabitation Agreement?
If you’re living with your partner without being married — the short answer is yes.
The Legal Reality for Unmarried Couples
South African law treats married and unmarried couples very differently. If you are married (or in a civil union), a comprehensive legal framework protects both spouses — governing property, maintenance, inheritance, and pension rights.
If you are not married, none of that applies to you. You are, in the eyes of the law, two separate individuals who happen to share an address.
What You Do NOT Have Without an Agreement
- No property rights — If the house is in your partner’s name, you have no automatic claim to it, even if you paid half the bond
- No maintenance rights — You cannot claim maintenance from your partner if the relationship ends (only children can claim)
- No inheritance rights — If your partner dies without a will, you inherit nothing. The estate goes to blood relatives under intestate succession
- No pension or provident fund rights — You are not recognised as a dependant unless specifically nominated
- No medical aid rights — Most medical aids require proof of a legal relationship to add a partner as a dependant
- No tax benefits — The tax advantages available to married couples do not extend to cohabiting partners
Common Scenarios — Does This Sound Like You?
“We’ve been together for years — surely we have some rights?”
No. Length of relationship does not create legal rights in South Africa. The Constitutional Court confirmed this in Volks NO v Robinson (2005). Whether you’ve been together for 2 years or 20, you remain legal strangers without a written agreement or marriage.
“We bought a house together.”
If the property is registered in both names, you each own your registered share. But if it’s in one partner’s name only — even if you both pay the bond — the non-registered partner has no automatic claim. A cohabitation agreement records the true arrangement.
“I left my job to raise our children.”
A married spouse who sacrifices career for family is protected by the accrual system or community of property. An unmarried partner who does the same has no equivalent protection. A cohabitation agreement can include provisions for financial support if the relationship ends.
“We don’t believe in marriage, but we’re committed.”
Your commitment to each other is not in question. But without marriage or an agreement, the law does not recognise your relationship. A cohabitation agreement gives your commitment legal substance.
“I’m in a same-sex relationship.”
Same-sex couples have the option of marriage or civil union under the Civil Union Act. If you choose not to marry, a cohabitation agreement is the only way to establish legally enforceable rights between you and your partner.
“I have assets from a previous marriage.”
If you’ve gone through a divorce and are now in a new relationship without marrying, your assets from the previous marriage are not automatically protected. A cohabitation agreement can ring-fence pre-relationship assets and protect your children’s inheritance.
What About a Universal Partnership Claim?
Some people believe they can rely on a universal partnership claim to protect their interests. While South African courts have recognised universal partnerships between cohabiting couples (notably in Butters v Mncora (2012)), this is not a reliable strategy:
- You must prove that both partners contributed to the partnership (financially or otherwise)
- You must prove a mutual intention to share profits and losses
- The claim must be brought in court — which is expensive and uncertain
- The outcome depends entirely on the facts — there is no guarantee
A cohabitation agreement removes the need for a universal partnership claim by setting out your arrangement in advance — in writing, signed before a notary, and enforceable without the cost and risk of litigation.
Quick Checklist — Do You Need an Agreement?
If any of the following apply to you, you should seriously consider a cohabitation agreement:
- You live with your partner (or plan to move in together)
- You own property — alone or together
- You contribute to household expenses or your partner’s bond
- You have children together or from previous relationships
- One partner earns significantly more than the other
- One partner has given up work to manage the household
- You have savings, investments, or retirement funds you want to protect
- You own a business
- You want your partner to inherit from you
- You need a notarial agreement for a life partner visa
Don’t Leave It to Chance
A cohabitation agreement costs R1,700. A universal partnership court case costs tens of thousands — with no guaranteed outcome.