Cohabitation Agreements – Your legal safety net for living together.
Moving in with your partner because you’ve been together forever, and assuming you qualify for marriage-style rights…Unfortunately, it’s a myth.
Let’s talk about the REAL legal consequences of living together, in terms of South African law.
COHABITATION IS NOT MARRIAGE.
The starting point is that South African law does not recognise “common-law marriage”. There are no inherent and automatic rights which are acquired due to having lived together for long. No matter how long you’ve lived together, shared expenses, or built a life side-by-side — cohabitation does not create automatic legal rights. Meaning that:
1. Your partner will not automatically get a share of your assets if the relationship ends;
2. Your partner has no guaranteed rights to inherit from you;
3. Neither partner has any legal duty of support once the relationship ends.
This position was confirmed by the Supreme Court of Appeal in McDonald v Young (292/10) [2011] ZAZCA 31; 2012 (3) SA 1 (SCA) (24 March 2011), where the court made it clear that simply living together does not create reciprocal legal duties of support. Any right must come from an agreement, not from the relationship itself.
In short: love alone does not protect you legally.
WHAT IS A COHABITATION AGREEMENT?
A cohabitation agreement is a legally binding contract between partners who live together but who are not married. Think of it as a written agreement for people who choose not to marry. It allows couples to decide for themselves how things will work, instead of leaving it to the court at a later stage. A properly drafted cohabitation agreement includes the following:
- Who is the owner of the property acquired during or before the relationship;
- How household expenses should be shared;
- Whether maintenance will be required;
- The financial outcome and division of assets and liabilities if the relationship end;
- Who will benefit from pension, retirement funds or life policies;
- Each partner’s responsibilities towards the children;
- Any inheritance arrangements.
This document is enforceable in court and may serve as a written agreement entered into between parties who are not legally married, setting out the financial and personal arrangements before things go south. A cohab agreement is basically love insurance.
WHY THIS AGREEMENT MATTERS MORE THAN YOU THINK.
Without a cohabitation agreement, disputes after a breakup or death are often dealt with through expensive litigation, where one partner may try to rely on arguments such as universal partnerships, or a reciprocal duty of support having formed tacitly or verbally. These are often difficult to prove and never guaranteed.
While the Constitutional Court in Bwanya v Master of the High Court, Cape Town and Others (CCT 241/20) [2021] ZACC 51; 2022 (4) BCLR 410 (CC);2022 (3) SA 250 (CC) (31 December 2021) has expanded certain inheritance and maintenance protections for surviving life partners, these protections are limited and depend on strict legal requirements. They do not give cohabitants the same blanket protection as legal marriage.
A cohabitation agreement gives certainty, clarity, and control — instead of leaving your future in the hands of court interpretations.
REAL TALK.
Love is messy. Breakups happen. People pass away. Circumstances change. A cohab agreement isn’t unromantic — it’s responsible. It protects both parties, reduces conflict, and often saves families from emotional and financial troubles later down the line.
If you’re serious about your partner, consider this your friendly reminder: talk contracts, wills, and clarity sooner rather than later.
