Cohabiting couples warned they may have no legal rights despite years together

South African couples are warned that living together for years, even while raising children together, does not automatically grant them legal rights that married couples enjoy.

Despite the growing number of unmarried couples choosing to cohabit, South African law does not formally recognise cohabitation, meaning unmarried partners are generally treated as separate individuals with limited legal protection.

Head of customer experience at JustMoney, Sarah Nicholson, said many couples mistakenly believe living together creates legal rights similar to marriage.

“The mistaken belief that cohabitation creates legal rights can have serious financial consequences,” said Nicholson.

She explained that unmarried couples without a legal agreement forfeit several rights that married couples automatically enjoy.

These include no automatic claim to shared property ownership even if one partner contributed financially to the home, and no automatic right to claim maintenance if the relationship ends.

Nicholson said that unmarried couples also miss out on certain tax benefits available to married spouses, such as exemptions on donations tax for money or assets transferred between spouses.

She further warned that unmarried partners are not automatically entitled to make medical decisions for one another if one becomes incapacitated.

“Without a valid will, the surviving partner has no automatic right to inherit from the deceased’s estate. This can leave the partner financially vulnerable or even without a home, at an already difficult time,” she said.

Nicholson also noted that cohabiting partners cannot automatically claim benefits from a partner’s pension or provident fund.

Legal experts say there are limited legal remedies available to cohabiting couples when a relationship ends or one partner dies.

Attorney at Bernadt Vukic Potash & Getz, Sandra van Staden, said one possible avenue is proving the existence of a “universal partnership”.

Senior consultant at Meropa Communications Judy Bryant explained that courts may recognise a universal partnership if a couple shared finances, property and responsibilities for their mutual benefit.

“This is a legal concept where courts may recognise that a couple lived together and shared finances, property and responsibilities. Each partner made a contribution to a partnership established for their mutual benefit, however, such cases can be complex, expensive and uncertain,” said Bryant.

Bryant said the proposed Domestic Partnership Bill could eventually provide greater protection for couples who choose not to marry.

“It will provide the option to register their relationship as a domestic partnership, creating similar rights and responsibilities as a marriage. However, the bill remains in draft form and is not law,” she said.

For now, Bryant said the simplest way for couples to secure full legal protection remains marriage or entering into a civil union.

The message is simple: if you are building a life together, it’s essential to ensure your legal and financial arrangements reflect that reality.

—  Sarah Nicholson, head of customer experience at JustMoney

“A civil union gives you all the rights and obligations of marriage but under a different legal framework. Civil unions were introduced in 2006 to ensure that same-sex couples had access to the same legal protections as heterosexual couples, promoting equality and inclusivity,” said Bryant.

Van Staden said that heterosexual couples may also enter into civil unions under the Civil Union Act.

“Couples who enter into a civil union can choose to register their union either as a marriage or a civil partnership. The consequences and rights that flow from either are the same,” said Van Staden.

Nicholson cautioned that while civil unions are legally recognised, some religious and cultural institutions do not approve of them or refuse to perform such ceremonies.

“This is an important consideration if you have strong religious beliefs or cultural heritage,” she said.

For couples who choose not to marry or enter into a civil union, experts recommend putting legal protections in place.

Bryant advised couples to draft valid wills to ensure surviving partners inherit intended assets and benefits.

“Clearly name your partner as a beneficiary and specify exactly what they should inherit such as property, money or personal belongings,” said Bryant.

She also recommended drawing up a cohabitation or life partnership agreement to clarify how finances, property, debts and maintenance responsibilities will be handled if the relationship ends.

“Take independent legal advice and ensure documents are properly drafted and signed,” she said.

Nicholson said couples should not assume love and commitment alone will protect them legally.

“The message is simple: if you are building a life together, it’s essential to ensure your legal and financial arrangements reflect that reality. Failing to do so can leave both partners and their families exposed to unnecessary risk. Love and commitment, on their own, do not create legal rights. That’s why understanding the law and planning appropriately is so important,” said Nicholson.