Marriage and Matrimonial Property

 

 

 

You can update a Cohabitation Agreement to reflect changes in your relationship or personal circumstances. Reviewing and updating the agreement periodically or after significant life events like buying a property or having children is essential. Updating your agreement will ensure that it remains relevant and provides adequate protection.

To make your Cohabitation Agreement legally binding in South Africa, it must meet specific requirements:

  • Document in Writing: Put the entire Cohabitation Agreement in writing. This step ensures clarity and prevents misunderstandings between both partners.
  • Voluntary Signature: Both partners must voluntarily sign the agreement, demonstrating their informed consent and commitment to its terms.
  • Witnessed: To strengthen the agreement’s validity, consider having it witnessed by an impartial third party who can confirm the authenticity of the signatures.
  • Notarization: It is advisable to sign and witness it before a registered Notary Public to ensure its legality. This legal professional will verify the identities of both parties and confirm their willingness to enter into the agreement.

No. South Africa does not recognize "common-law marriage." Simply living together, no matter how long, does not automatically grant you the same legal rights as marriage. A Cohabitation Agreement is a proactive step to create legal rights and obligations that don't automatically exist.

 A Cohabitation Agreement, also called a Life Partnership Agreement or Domestic Partnership Agreement, is a legal contract between unmarried couples living together. It outlines your rights and responsibilities while cohabiting and, importantly, how assets and finances will be divided if you separate. Think of it as a pre-nup, but for couples who are not married.

In South Africa, unmarried couples don't automatically have the same legal protections as married couples. A Cohabitation Agreement bridges this gap, providing legal certainty and protecting both partners' interests, especially regarding finances and property, during the relationship and if it ends. It avoids uncertainty and potential disputes down the line.

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Cohabitation Agreements

Relationships are evolving, and for many couples in South Africa, living together is the chosen path.  While cohabitation is a common and valid lifestyle, it's crucial to understand that South African law doesn't automatically recognize "common law marriage."  This means without taking proactive steps, you and your partner may not have the same legal protections as married couples, especially when it comes to finances and property.  That's where a Cohabitation Agreement comes in – a smart way to safeguard your interests and create clarity for your shared life together.

What is a Cohabitation Agreement in South Africa? 

In South Africa, a Cohabitation Agreement (also known as a Life Partnership Agreement or Domestic Partnership Agreement) is a legal contract designed for unmarried couples living together.  Much like an antenuptial contract for married couples, it clearly outlines your individual rights and responsibilities while you are living together, and importantly, how your finances and property will be divided should the relationship end.

Because South African law doesn't automatically provide cohabiting couples with the same legal protections as married couples, a Cohabitation Agreement is crucial for securing your future and ensuring clarity and fairness in your relationship.

Unlike marriage, South African law doesn't automatically protect unmarried couples living together.  This means if you're cohabiting, you don't have the same legal rights as married couples – a significant difference to be aware of.

The Legal Gap - What Cohabitation Doesn't Automatically Provide

  • No Automatic Maintenance One partner isn't legally obligated to financially support the other if you separate.
  • Limited Joint Finances Banks often don't offer joint accounts to unmarried couples in the same way as married couples. Joint accounts are usually in one person's name, making them legally responsible for any debt.


The law in this area is still developing.  A new law, the Domestic Partnerships Bill, has been proposed to improve the rights of cohabiting couples, but it's not yet in place.  For now, it's important to understand that the legal standing of unmarried couples is quite different from married couples.

Universal Partnerships - A Possible Exception (But Hard to Prove)

Sometimes, South African courts can offer some help to cohabiting couples through something called a "universal partnership."  This is when the court recognizes a partnership existed based on how you lived your lives, even if you didn't have a formal agreement.  If a court recognizes a universal partnership, they can divide assets acquired during the relationship.

However, proving a universal partnership is difficult.  You need to show:

  • You both aimed to make a profit together (like a business partnership).
  • You both contributed to the relationship (financially or through work).
  • The partnership was for both your benefit.
  • Your agreement was legal.


Even if you can prove this, the court decides how assets are split.  In one case, a woman who lived with her partner for 20 years was awarded 30% of his assets – but this is not guaranteed and depends on the specific case.

Limited Areas Where Cohabitation Is Recognized

While general legal protection is limited, some laws do treat cohabiting couples similarly to married couples in specific situations:

  • Domestic Violence Protection - The law protects cohabitants from domestic violence.
  • Medical Aid - Medical schemes often recognize partners as dependents.
  • Tax and Estate Duty - Tax laws often treat cohabitants like spouses.
  • Life Insurance - You can name your partner as a beneficiary on life insurance.
  • Child Maintenance - Unmarried parents have the same responsibility to support their children as married parents. This is about the children's rights, regardless of the parents' relationship status.
  • Pension Funds (Limited) - You can be nominated as a beneficiary or recognized as a "dependant" for pension benefits, but you are not automatically entitled to a share of your partner's pension fund if you separate like in a divorce.
  • Work Injury Compensation - If your partner dies from a work-related injury and you were living together "as husband and wife," you may be able to claim compensation.

While some laws offer limited recognition, cohabiting couples in South Africa lack the broad legal protections of marriage.  Relying on proving a "universal partnership" is risky and uncertain.

Crafting Your Cohabitation Agreement: What Important Aspects Will It Cover?

A Cohabitation Agreement from Aucamp Attorneys is designed to be flexible and tailored to your unique relationship.  It's about creating a clear roadmap for your life together, addressing important aspects of your shared life and individual security.  So, what exactly can you include in your agreement?

Key Aspects Your Cohabitation Agreement Can Cover

1. Property - Now and in the Future

  • Ownership of Homes and Assets  -Clearly define who owns what – from your current home to future investments.
  • Home Deposit & Shared Housing Costs - Outline how deposits were/will be paid and who's responsible for rent, mortgage, and related expenses.
  • Dividing Property - if You Separate Agree in advance how jointly owned property will be split if your relationship ends, avoiding future disputes.

2. Finances - Together and Separately

  • Household Bills - Specify who pays for what – utilities, groceries, household maintenance, etc. Ensuring fairness and transparency in shared expenses.
  • Bank Accounts and Finances - Manage joint accounts, personal accounts, and broader financial responsibilities clearly.
  • Debt Responsibilities - Outline how current and future debts will be handled during the relationship and if it ends.
  • Life Insurance and Pensions - Clarify arrangements for beneficiaries and how these assets might be considered in your agreement.

3. Practical Matters & Personal Well-being

  • Care of Pets - Include arrangements for pet care, custody, and related expenses if you separate - because pets are family too!
  • Next of Kin Rights - While a Cohabitation Agreement isn't a Will, you can address certain "next of kin" considerations within its scope (within legal limits).

Important Points to Remember

  • Legally Sound, Ethically Driven - Your agreement cannot include anything illegal or "immoral." Aucamp Attorneys will ensure your agreement is legally compliant.
  • Between You and Your Partner - The Cohabitation Agreement is legally binding between you and your partner only; it doesn't directly impact third parties (separate contracts may be needed for that).
  • Court Assistance if Needed - If disagreements arise about your agreement, you can seek guidance from the courts for interpretation or enforcement.
  • Cohabitation Agreements are NOT Wills - To ensure your partner inherits your assets after your death, you still need a valid Will. A Cohabitation Agreement doesn't replace a Will.

To Create a Comprehensive Cohabitation Agreement, Consider Including

  • Full Identification - Clearly state both partners' full names, addresses, and contact details for clarity.
  • Effective Date - Specify the date your Cohabitation Agreement becomes active – usually the signing date.
  • Individual Property (Pre-Relationship Assets) - Clearly define how assets you owned before cohabitation will be treated, especially if you separate. Protect your pre-existing wealth.
  • Joint Property (Assets Acquired Together) - Detail how assets acquired during your cohabitation will be divided if the relationship ends.
  • Expense Responsibilities - Clearly outline who is responsible for which household bills and expenses.
  • Termination Conditions - Define when the agreement ends – marriage, separation by mutual agreement, or other specific events.
  • Review Schedule - Plan to review your Cohabitation Agreement periodically (e.g., every few years) to ensure it still reflects your lives and intentions.

A well-drafted Cohabitation Agreement provides clarity, fairness, and security for you and your partner. Aucamp Attorneys can guide you through all the important considerations and create a tailored agreement that protects your individual interests and strengthens your partnership.

Protect Yourself with a Cohabitation Agreement.

The best way for unmarried couples to protect themselves and each other legally is with a Cohabitation Agreement.  A well-structured Cohabitation Agreement, addressing these essential elements, provides a strong foundation for your cohabiting relationship.  Aucamp Attorneys can provide the expert legal guidance you need to create a comprehensive and personalized agreement. Contact us today.

This is a contract that you create, outlining your financial arrangements and other important aspects of your relationship, giving you clarity and security.