Many South African couples are surprised to learn that living together, even for many years, does not automatically confer legal rights, even if they have children.
Despite its prevalence, South African law does not recognise cohabitation. This means that unmarried partners are treated as separate individuals, with very limited automatic claims against each other.
The mistaken belief that cohabitation creates legal rights can have serious financial consequences, warns Sarah Nicholson, head of customer experience at JustMoney. If you are unmarried and you have no legal agreement, you forfeit several rights:
- There is no automatic claim to property ownership, even if you helped pay for and maintain the property.
- You do not have an automatic right to claim maintenance from your partner if the relationship ends.
- You do not qualify for tax advantages available to married couples. For example, money or assets transferred between spouses do not attract donations tax.
- You are not entitled to make medical decisions for your partner if they become incapacitated.
- Without a valid will, the surviving partner has no automatic right to inherit from the deceased’s estate. This can leave the partner financially vulnerable, or even without a home, at an already difficult time.
- You cannot claim benefits from your partner’s pension or provident funds.
Ways to secure your rights
There are limited legal avenues that may offer some protection when a relationship ends, or one partner dies, says family law specialist Sandra van Staden of Bernadt Vukic Potash & Getz Attorneys.
These include proving the existence of a “universal partnership”. This is a legal concept where courts may recognise that a couple lived together and shared finances, property, and responsibilities. Each partner made a contribution to a partnership established for their mutual benefit.
However, such cases can be complex, expensive, and uncertain.
The proposed Domestic Partnership Bill will assist couples who choose to cohabit rather than marry. It will provide the option to register their relationship as a domestic partnership, creating similar rights and responsibilities as a marriage. However, the Bill remains in draft form and is not law.
The most straightforward way to secure full legal protection remains entering into a legally recognised marriage or civil union.
A civil union gives you all the rights and obligations of marriage, but under a different legal framework. Civil unions were introduced in 2006 to ensure that same-sex couples had access to the same legal protections as heterosexual couples, promoting equality and inclusivity.
Heterosexual couples may also enter into a civil union in terms of the Civil Union Act. Couples who enter into a civil union can choose to register their union either as a marriage or a civil partnership. The consequences and rights that flow from either are the same, says Van Staden.
“If you are considering a civil union, keep in mind that while the state recognises them, some religious and cultural institutions disapprove of civil unions and refuse to perform a ceremony. This is an important consideration if you have strong religious beliefs or cultural heritage,” says Nicholson.
For couples who choose not to marry or enter into a civil union, Nicholson recommends taking steps to reduce uncertainty.
- Draft a valid will to ensure your partner is provided for. Clearly name your partner as a beneficiary and specify exactly what they should inherit, such as property, money, or personal belongings. Make sure they are legally entitled to receive any shared assets or contributions you want them to inherit or benefit from, including policies, pensions, and medical aid. Consider granting them the right to live in a shared home for a defined period, if applicable, and ensure you have an executor who understands your wishes so your estate is distributed as you intend.
- Prepare a cohabitation agreement, also called a life partnership agreement. Clearly set out how property is owned, how financial contributions and household expenses are shared, how joint bank accounts will be handled if the relationship ends, who is responsible for any debts, and whether any maintenance will be paid after separation. Take independent legal advice and ensure documents are properly drafted and signed.
“The message is simple: if you are building a life together, it’s essential to ensure your legal and financial arrangements reflect that reality,” says Nicholson. “Failing to do so can leave both partners and their families exposed to unnecessary risk.
“Love and commitment, on their own, do not create legal rights. That’s why understanding the law, and planning appropriately, are so important.”
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