With more South Africans choosing to live together without tying the knot, financial and legal experts are warning that couples who cohabit remain vulnerable unless they protect themselves with a formal agreement.
Speaking to 702’s John Perlman, Standard Bank SA executive head of insurance and fiduciary Shaka Zwane said cohabitation agreements secure partners' rights.
“The best and the safest thing to do for couples who decide to move in together [and] cohabitate is to draft a cohabitation agreement, particularly if there are assets involved,” he said.
Zwane said the 2022 national census found eight out of every 100 couples choose to live together before marriage or continue cohabiting for years without marrying.
Despite this growing prevalence, cohabitation is not recognised in South African law as a legal relationship. This leaves couples exposed in the event of separation or death.
“The law is not quite there. There is an agreement called a cohabitation agreement which is enforceable by law and is a legal agreement. We advise this. It is done in front of a practicing attorney and has to be notarised properly,” he said.
Though the agreement does not replace a will, it offers crucial protection such as outlining how couples share expenses and manage property, reduces the risk of disputes and litigation and protects a surviving partner if one dies.
“When you are married you are protected legally. When you are cohabiting and there is no particular agreement in place your rights are limited and you might have to go through tedious and long battles to protect yourself and the assets you are supposed to inherit.”
As September is National Wills Month, Zwane also reminded couples that a valid will is still essential as a cohabitation agreement alone does not provide inheritance rights.
Legal services provider LegalWise echoed Zwane’s call, stressing South Africa does not recognise “common law marriage” no matter how long a couple live together.
“Cohabitation refers to when an unmarried couple live together in a long-term relationship that resembles a marriage. As the couple are not married, cohabitation is not regulated by law and does not receive the same protection as a marriage,” it said.
LegalWise said a cohabitation agreement can be concluded verbally or in writing, though a written and signed agreement is recommended. The agreement should set out the couple’s rights and responsibilities, including:
- ownership of joint property;
- contributions to expenses;
- division of assets if the relationship ends;
- life insurance and pension arrangements; and
- the duration of the agreement.
“If there is no cohabitation agreement at the end of a relationship a person is only entitled to retain the property which they purchased and own,” said LegalWise.
In some cases partners may prove a universal partnership where both contributed to a joint venture with the intention of making a profit, but LegalWise cautioned this is difficult to prove and usually requires court intervention.
While cohabitants do not enjoy the same rights as married couples, certain laws have begun to acknowledge these partnerships:
- the Domestic Violence Act includes cohabiting partners;
- the Medical Schemes Act recognises them as dependents; and
- tax laws treat them as spouses for estate duty purposes.
A landmark moment came in 2021 with the Constitutional Court’s Bwanya vs Master of the High Court ruling which found it unconstitutional to exclude opposite-sex cohabitants from inheritance and maintenance rights.
The judgment expanded the definition of “survivor” and “spouse” to include permanent life partners, granting them rights under the Intestate Succession Act and the Maintenance of Surviving Spouses Act.
Despite this, Zwane and LegalWise maintain the safest option for unmarried couples remains a notarised cohabitation agreement which is backed by a valid will.
“Even if you are not planning to get married soon, we advise getting a cohabitation agreement to protect yourself,” said Zwane.
TimesLIVE
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