Living Together Is Not a Marriage: What Cohabiting Couples Need to Know

More South African couples than ever share a home, a bank account and a life without ever signing a marriage register. Many of them believe that after a few years the law treats them as married — that a so-called common-law marriage quietly comes into existence. It does not. There is no such thing as a common-law marriage in South African law, and the consequences of that misunderstanding can be devastating: we regularly consult with people who discover, at the end of a decades-long relationship, that they have far fewer rights than they assumed. The good news is that the law has moved in recent years, and that with proper planning cohabiting couples can protect themselves well.

The Myth of the Common-Law Marriage

No period of cohabitation — five years, ten years, thirty years — converts a relationship into a marriage. Living together, sharing expenses, raising children together, even being known in the community as husband and wife: none of it creates the automatic legal consequences of a marriage. Marriage in South Africa arises only from a valid civil marriage, civil union or customary marriage. Everything else is, in the eyes of the law, a relationship between two legally separate individuals.

What Cohabitants Are Not Entitled To

Because the Divorce Act 70 of 1979 and the matrimonial property regimes apply only to married couples, a cohabitant who separates from a partner has, by default:

• No claim to a share of the partner's assets — property belongs to whoever owns it on paper, regardless of who kept the household running while it was acquired;
• No accrual or redistribution claim — the sharing mechanisms that protect married spouses at divorce simply do not apply;
• No right to maintenance from a former partner — the duty of support between spouses does not arise automatically between cohabitants, however long the relationship lasted; and
• No access to the divorce court's machinery — including interim maintenance pending litigation.

Children are the important exception: both parents owe their children a duty of support regardless of whether the parents were ever married, and parental responsibilities and rights are governed separately by the Children's Act 38 of 2005.

Death Is Different: Bwanya and the New Law

For many years the position on death was equally harsh. In Volks NO v Robinson [2005] ZACC 2 the Constitutional Court held that a surviving life partner could not claim maintenance from her deceased partner's estate. That changed decisively in Bwanya v Master of the High Court, Cape Town [2021] ZACC 51; 2022 (3) SA 250 (CC). The Court held it unconstitutional that section 1(1) of the Intestate Succession Act 81 of 1987 and section 2(1) of the Maintenance of Surviving Spouses Act 27 of 1990 excluded the surviving partner of a permanent life partnership in which the partners had undertaken reciprocal duties of support.

Parliament has since given effect to the judgment: with effect from 3 April 2024, amendments introduced by the Judicial Matters Amendment Act 15 of 2023 mean that a partner in such a permanent life partnership is treated as a spouse for purposes of intestate succession and may claim maintenance from the deceased partner's estate.

Two caveats matter. First, these protections apply only on death — they do nothing for a partner left behind when a relationship ends by separation. Second, the survivor must prove a permanent life partnership with reciprocal duties of support, often against sceptical family members of the deceased, and without documents that can become a bruising factual battle fought in the worst season of a person's life.

Separation and the Universal Partnership

What of the partner left with nothing when a long cohabitation ends? The main remedy our courts recognise is the universal partnership — a claim that the couple, expressly or tacitly, ran their life as a joint enterprise in which both hold a share. The leading case is Butters v Mncora [2012] ZASCA 29; 2012 (4) SA 1 (SCA), where the Supreme Court of Appeal upheld the claim of a woman who had shared her partner's life for close on twenty years, holding that a universal partnership can extend beyond commercial ventures to the couple's joint family enterprise.

To succeed, a claimant must establish the essentials of a partnership:

1. each party brought something into the partnership — money, labour or skill;
2. the enterprise was carried on for the joint benefit of both parties; and
3. its object was to make a profit or to benefit both parties.

Where no express agreement exists, the court asks whether it is more probable than not that a tacit partnership agreement existed, judged by the parties' conduct over the whole relationship. That is a demanding, evidence-heavy exercise: contributions must be reconstructed years after the fact, and the outcome is never guaranteed. A universal partnership claim is a remedy of last resort, not a plan.

The Cohabitation Agreement: Certainty by Contract

The most effective protection available to unmarried couples is also the simplest: a written cohabitation agreement. Because ordinary contract law applies between cohabitants, a couple can regulate their affairs with a document that records, among other things, who owns what, how jointly acquired assets are held, how household expenses and bond payments are shared, what happens to the shared home and contents on separation, and whether any support will be paid after the relationship ends. Paired with properly drafted wills — essential even after Bwanya, because proving a life partnership after death is never certain — and updated beneficiary nominations, a cohabitation agreement gives an unmarried couple much of the certainty that married couples take for granted.

If you live with your partner unmarried — or are ending or mourning such a relationship — do not let assumptions decide your future. We draft cohabitation agreements and wills, and we litigate universal partnership and life-partnership claims, as part of our family law services. Contact us to put your position on solid ground.