Living Together Without Tying the Knot: The Need to Know the Law for Cohabiting Couples in South Africa

While living together without marriage may reflect modern relationship dynamics, it’s vital to be aware of the legal implications. The South African legal system currently doesn’t provide the same rights and protections to cohabiting partners as it does to married couples, writes Angie Poole, Manager Estates, Business Restructuring at BDO South Africa.

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Oh, how times have changed. Many couples today choose to live together rather than get married, embracing cohabitation as a legitimate form of partnership. This shift reflects evolving societal values and a preference for flexibility over formal commitment. But, while many South Africans believe that by living together for a period of time, you become common law husband and wife, the law doesn’t currently recognise cohabitation as a formal legal relationship. This means that cohabiting partners do not enjoy the same rights and protections as married couples, often leading to complex legal and financial complications.

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One critical issue arises when one of the parties dies without a valid will. In such cases, the surviving partner will not automatically inherit under the Intestate Succession Act 81 of 1987, as they are not recognised as a spouse. The Act outlines how the deceased’s estate is divided among spouses, descendants, and family members — explicitly excluding cohabitants. Meaning it’s of utmost importance for cohabitants to draft a valid last will and testament if they wish for their partner to inherit from their estate.

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The draft Domestic Partnership Bill, published in January 2008, aimed to address these gaps by providing legal recognition and protection for couples who choose to cohabitate rather than marry. Unfortunately, to date, this Bill has not been passed, leaving cohabitants without statutory protection. This legislative inaction underscores the precarious legal position of cohabiting partners, who must navigate a system that does not fully acknowledge their relationship.

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This can lead to complications, especially when it comes to the division of property and assets if the relationship ends in death or separation. To safeguard their interests, many couples opt for a cohabitation agreement—a written contract outlining each partner's rights and responsibilities. Such agreements provide a measure of security and clarity, ensuring that both parties have a clear understanding of their financial arrangements and what would happen in the event of separation. But it’s crucial to note that even with a cohabitation agreement, the right to inherit under the Intestate Succession Act is not automatic. A cohabitant can only inherit if a valid will is in place.

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Interestingly, cohabitation is recognised under certain legislations. The Domestic Violence Act, for instance, includes protections for cohabiting partners. The Medical Schemes Act 131 of 1998 also defines a dependant to include a 'partner', allowing either partner in a cohabitation relationship to be a beneficiary in a life-insurance policy. Additionally, the law does not distinguish between married and unmarried parents regarding their obligation to maintain children. A partner may also claim compensation if their partner died due to injuries received during the course of employment, provided they were living as ‘husband and wife’ at the time of death.

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A recent judgment, L.L v C.H NO and others [2023] ZAGPJHC, highlights the legal challenges faced by cohabiting partners. The applicant and the deceased had known each other since 1980, entered into a romantic relationship and begun living together in 1990. When the deceased passed away in July 2016 without a will, the applicant was unable to inherit despite their long-term relationship. In terms of the Intestate Succession Act, their relationship was not recognised. The applicant sought a court declaration of their relationship as a universal partnership to claim half of the estate. Initially dismissed by the South Gauteng High Court, the application was ultimately upheld on appeal, recognising the universal partnership and entitling the applicant to half of the deceased's estate.

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This case underscores the importance of having a valid will in place for cohabiting partners. While societal norms continue to evolve, the legal framework has been slow to catch up, often leaving cohabitants in precarious positions. Until comprehensive legal recognition and protection for cohabitation are enacted, individuals in such relationships must proactively protect their interests through wills and cohabitation agreements. This not only safeguards their rights but also ensures that their wishes are honoured in the event of death or separation.