Why South African law leaves unmarried couples dangerously exposed and what a cohabitation agreement can do about it
South Africa has one of the most progressive constitutions in the world, enshrining equality and human dignity as foundational values. Yet when it comes to the legal rights of unmarried couples who live together, our law remains strikingly behind the lived reality of millions of South Africans. Cohabitation, or what is colloquially called a “life partnership”, is widely practised across all communities in this country, but it attracts almost none of the automatic legal protections that flow from a valid marriage. A cohabitation agreement is one of the few tools available to fill that gap.
What Is a Cohabitation Agreement?
A cohabitation agreement is a written contract entered into by two people who live together, or intend to, outside of a legal marriage or civil union. In South Africa, it is governed by the ordinary law of contract as codified and developed through our common law. Because there is no dedicated statute regulating cohabitation agreements, they derive their validity and enforceability from the general principles found in the law of contract, including the requirements of consensus, capacity, lawful object, and certainty of terms.
In practice, a well-drafted agreement can regulate ownership of immovable and movable property, financial contributions to a shared home, the division of assets upon separation or death, maintenance obligations between partners, and the treatment of jointly incurred debt. It can also address more nuanced arrangements such as what happens when one partner contributes labour or domestic support rather than money. The agreement should be in writing, signed by both parties, and witnessed. While independent legal advice is not a legal requirement, it is strongly recommended to avoid later disputes about fairness or understanding.
What a Cohabitation Agreement Is Not
This is where South African law diverges sharply from popular assumption. A cohabitation agreement does not create a marriage or civil union. It does not confer the rights that flow from the Marriage Act 25 of 1961 or the Civil Union Act 17 of 2006. Critically, it is not equivalent to customary marriage under the Recognition of Customary Marriages Act 120 of 1998, which has its own distinct requirements and consequences.
Equally important: South African law does not recognise the concept of a “common law spouse.” Despite years of litigation, including the landmark Constitutional Court case of Volks NO v Robinson [2005] ZACC 2, the Constitutional Court held that the Intestate Succession Act 81 of 1987 did not unconstitutionally discriminate against permanent life partners by excluding them from intestate inheritance rights. The message was uncomfortable but clear: cohabitation, however long-standing and committed, does not in itself create automatic legal entitlements. Without a cohabitation agreement, or a valid will, a surviving partner may be left with nothing.
Why Cohabitation Agreements Matter in South Africa
The absence of legislative protection for cohabiting couples in South Africa makes a written agreement not a luxury, but a necessity. Consider the most common scenario: one partner owns a home, the other moves in and contributes financially to renovations, bond repayments, or household costs over many years. When the relationship ends, the non-owning partner has no automatic claim to the property. They may attempt to rely on the enrichment remedy developed in Butters v Mncora [2012] ZASCA 29, where the Supreme Court of Appeal recognised a claim based on universal partnership or unjust enrichment — but such litigation is expensive, uncertain, and emotionally devastating.
A cohabitation agreement pre-empts these disputes by recording what each party intends from the outset. It is particularly vital where there is a significant disparity in income or assets, where one partner interrupts their career to raise children or support the household, where a partner invests money into property they do not own, or where either party has children from a previous relationship. In all of these circumstances, the law offers limited comfort in the absence of an agreement. Parliament has been urged repeatedly to enact dedicated cohabitation legislation – the South African Law Reform Commission has recommended it – but until such legislation materialises, the contract remains the primary mechanism of protection.
Approaching a cohabitation agreement is not a pessimistic act. It is a legally responsible one – a reflection of mutual respect and honest engagement with the realities of South African law. Given how little the law does for unmarried couples by default, it is one of the most meaningful steps two people can take together.
For more information or advice on cohabitation within South Africa, please contact our legal practitioners.