As societal dynamics evolve, “cohabitation,” or living together without being married, has become increasingly common in South Africa.

• This trend mirrors global patterns and is influenced by social, economic, and cultural factors unique to the country.
• Traditionally, marriage has been a cornerstone of society, deeply rooted in cultural, religious, and legal frameworks.
• However, as generations progress and traditional thinking shifts, many couples now choose not to marry or to marry later after having lived together.
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Unlike marriage, cohabitation in South Africa does not automatically confer legal rights and responsibilities and lacks similar legal safeguards. Contrary to popular belief, merely living with a partner for a significant period does not establish a “common law marriage”. Cohabiting partners do not have automatic rights to property, inheritance, or spousal support in the event of separation or death.

According to Mishka Nowbath, Candidate Attorney at APA Africa, South African law does not formally recognise cohabitation in the same way it does marriage. This lack of statutory recognition can leave cohabiting partners vulnerable, especially in cases of separation or the death of a partner. Without legal protections, partners can face uncertainty, financial instability, and disputes over property.

However, South African courts have tried to provide some relief by recognizing a “universal partnership”, either express or implied. A universal partnership is acknowledged when there is an agreement, explicitly or tacitly, that both parties will combine their resources for mutual benefit and contribute to their shared life financially and otherwise, without a formal marriage in place.

Despite this, the lack of automatic legal protections remains a significant challenge for cohabiting partners. To mitigate these risks, couples can take proactive steps to protect themselves legally.

One effective way for cohabiting partners to safeguard their interests is by entering into a Cohabitation Agreement. This agreement records their obligations and the financial and other consequences should the relationship end. Courts generally uphold and enforce these agreements, provided they are valid contracts that are not contrary to public policy.

// APA Africa Candidate Attorney, Mishka Nowbath

A Cohabitation Agreement can cover various aspects, including:

• Property Rights: Clarifying ownership of shared property and how it will be divided in the event of separation.
• Financial Support: Establishing agreements about financial support during and after the relationship.
• Inheritance Rights: Ensuring that each partner’s wishes are respected regarding inheritance, especially if one partner passes away.
• Other Obligations: Outlining responsibilities related to household expenses, debts, and other shared financial obligations.

Having a Cohabitation Agreement in place can provide legal protection for both parties and help prevent disputes. It ensures that both partners have a clear understanding of their rights and responsibilities, reducing the potential for conflict.

Despite the availability of Cohabitation Agreements, many couples remain unaware of the legal vulnerabilities they face without formal recognition of their relationship. The absence of automatic rights to property, inheritance, or spousal support can result in significant hardship, particularly for the financially dependent partner.

For example, if one partner dies without a will, the surviving partner may not have any claim to the deceased partner’s estate. Similarly, in the event of separation, the financially weaker partner may struggle without the protection of spousal support.

Cohabitation in South Africa reflects changing relationship dynamics and societal norms. While it offers flexibility and aligns with modern views on relationships, it also presents legal challenges. Couples must be aware of these challenges and take steps to protect themselves.

// APA Africa Candidate Attorney, Mishka Nowbath

Entering into a Cohabitation Agreement is a prudent measure to ensure legal protection and financial stability.

For queries regarding cohabitation or assistance in entering into a Cohabitation Agreement, contact APA Africa at +27-10-443-7829 or email mishka.nowbath@apaa.co.za

Cover Image Credit: Andres Ayrton on Pexels.

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