Cohabitation has become a common and deliberate life choice in South Africa, with many couples building long-term, financially interdependent lives together. The difficulty is that, despite its prevalence, cohabitation is not recognised as a legal relationship in the same way as marriage, civil union or customary marriage.
There is no such thing as a “common law marriage”, and living together does not create a matrimonial property regime, reciprocal duties of support, or clear rules governing division of assets.
Although the courts have developed limited remedies to address unfair outcomes, these are neither automatic nor comprehensive, and usually depend on proof, contractual arrangements or litigation.
As a result, couples may be financially well organised in practice, yet remain exposed when a relationship ends or a partner dies.
Limited recognition under specific legislation
From the outset, it’s important to note that cohabiting partners are not entirely invisible in law. Over the years, various pieces of legislation have adopted broader definitions of spouse, partner or dependant, recognising permanent life partnerships for specific purposes.
The challenge is that this recognition is fragmented and context-specific, meaning that protection in one area does not necessarily extend to another. From a financial planning perspective, this patchwork of recognition can create a false sense of security if couples assume that limited legal acknowledgement equates to comprehensive protection.
Areas where cohabiting partners may receive recognition include the following:
Medical scheme membership and dependants: In terms of the Medical Schemes Act, a medical scheme may allow a member’s spouse or partner to be registered as a dependant, subject to the scheme’s rules.
This enables cohabiting partners and their children to enjoy medical cover as a family unit, provided the necessary proof of partnership is supplied.
Tax law treats life partners more generously: Tax legislation adopts a broader approach. For income tax, donations tax, estate duty, capital gains tax and transfer duty purposes, the definition of spouse includes a permanent same-sex or heterosexual relationship intended to be of indefinite duration.
In the absence of proof to the contrary, cohabitants are deemed to be married out of community of property for tax purposes. This can result in valuable relief, such as the absence of donations tax on transfers between partners and estate duty exemptions on assets bequeathed to a surviving partner. However, tax recognition should not be confused with family-law protection.
Life insurance beneficiary nominations: Life insurance policies allow complete freedom of beneficiary nomination, meaning that a cohabiting partner may be nominated as a beneficiary – although it is critical that nominations are precise.
Partners should be clearly identified by name and relationship, rather than by vague descriptions such as ‘my partner’ or ‘my family’, which can create uncertainty and delays at claim stage.
Children and the duty of support: When it comes to children, the law makes no distinction between married and unmarried parents. Both parents have a legal duty to support their children, regardless of whether they live together, are separated, or were never in a formal relationship.
This duty is entrenched in maintenance legislation and ensures that children’s financial needs remain protected irrespective of their parents’ marital status.
Retirement funds and death benefits: Cohabiting partners may nominate each other as beneficiaries on retirement funds. However, retirement fund death benefits are governed by the Pension Funds Act, which requires trustees to identify and consider all financial dependants.
While a life partner may qualify as a dependant, the final allocation rests with the trustees and is determined by the facts and evidence presented.
Where the real risks lie
Beyond these specific areas of recognition, the legal protection for cohabiting couples largely falls away. This is because in the absence of marriage, there is no automatic duty of support between partners and no statutory framework governing the division of assets when a relationship ends.
This can leave one partner, often the financially weaker party, in a precarious position. In our experience, the most common areas of risk include:
Property ownership and the family home: If a home is registered in one partner’s name only, that partner remains the legal owner and is entitled to sell or deal with the property without the other’s consent. While claims based on universal partnership or unjust enrichment are possible, they are complex, costly and heavily dependent on proof.
Movable assets and shared possessions: Movable assets can be equally contentious. Items purchased during the relationship generally belong to the person who paid for them, unless there is evidence to the contrary. Over time, distinguishing ownership of household goods can become difficult, particularly where contributions were informal or undocumented.
Day-to-day financial arrangements: Financial arrangements often unravel quickly after separation. Cohabiting partners generally do not have access to joint bank accounts, and liabilities remain attached to the individual in whose name they were incurred. Without a formal agreement, disentangling shared expenses, leases, debts and even pet ownership can be fraught with difficulty.
No automatic right to spousal maintenance: Unlike married couples, cohabiting partners do not have a reciprocal duty of support, and there is no Divorce Act mechanism to claim maintenance on separation. Although recent Constitutional Court decisions have extended certain protections to permanent life partnerships, these remedies are not automatic and often require proof of reciprocal support.
Death and intestate succession risks: Death is where the absence of planning is felt most acutely. While the law of intestate succession has evolved to offer some protection to surviving life partners, reliance on posthumous litigation is an uncertain and emotionally taxing route. Without a valid Will, a surviving partner still risks being excluded from the estate.
Retirement funding on separation: Retirement funding presents another major risk. On separation, a cohabiting partner has no automatic claim to the other partner’s pension interest, unlike a spouse divorcing under the Divorce Act. Where retirement savings are concentrated in one name, this can result in severe financial prejudice for the other partner.
For couples who choose to live together, the solution lies not in assumption but in deliberate, well-documented planning. A properly drafted cohabitation agreement provides a practical framework for regulating ownership of assets, responsibility for liabilities, contributions to property, shared expenses, pets and even maintenance, reducing uncertainty should the relationship come to an end. Equally important is a carefully considered estate plan.
Further, cohabiting partners should ensure that their wills clearly reflect their intentions, appoint appropriate executors, and align with beneficiary nominations on retirement funds, life policies and other investment structures.
Where minor children are involved, this planning should extend to guardianship provisions and suitable fiduciary arrangements to safeguard their interests.
Living together does not remove the need for financial planning; in reality, it heightens it. Without the automatic protections that accompany marriage, cohabiting couples must rely on clarity, consistency and professional advice to protect what they are building together and to ensure that their financial arrangements reflect the substance of their relationship, even where the law does not automatically provide the form.