Living Together or Co-habitation in South Africa: Make Sure You Are Protected

Living Together or Co-habitation in South Africa: Make Sure You Are Protected

Living together, what consequences does it have? How do you protect yourself and your partner?


More and more South African’s are living together, without marrying. IT IS A MISTAKE TO THINK THAT THESE RELATIONSHIPS ARE RECOGNIZED BY THE LAW AS “COMMON LAW MARRIAGES”. There is absolutely no such legal recognition in South Africa- so called “common law marriages” do not exist in our legal system.

In South Africa, persons who merely live together, without entering into a marriage or “co-habitation” agreement- are treated as separate individuals having no legal obligation to assist each other financially whatsoever. Generally, only in the event that your boyfriend/girlfriend passes away, would you maybe have a claim against their estate. This will be exceptionally difficult to prove without the proper paper work etc.

Please note, that in the event that the parties are the natural parents of a child born of the relationship- both parties are legally obligated to care for the well-being of the child only.


In the event that you and your partner reside together- it is a good idea to enter into a “Co-habitation Agreement”. The following every day scenarios will demonstrate this point:


  1. Jack and Joan meet at a party and quickly fall in love and move in together. Because Joan does not have a job at present, Jack pays for the rent (or homeloan), electricity and groceries. Joan tries to obtain gainful employment, but despite her best efforts, she is without work for many months. While at home, Joan often visits neighbours and has made many friends. Within a few months of moving in to Jack’s home, she starts an affair with a neighbour. Jack eventually finds out and is furious. He immediately throws Joan out. Not long thereafter, Jack receives a Summons from the telephone company for R 20 000. It later transpires that while Jack was handing Joan cash every month to pay the telephone account, she was using the money on personal items and hiding the letters of demand from him. Jack visits his attorney who informs him that has no legal defence and must somehow come up with the R 20 000 to pay the telephone company or they will blacklist him and may even obtain a judgment against him and seize his property. Thereafter, if Jack can afford it, he must instruct the attorney to sue Joan if he wants to hold her accountable for the telephone bill. This in its own costs more money and there’s a good chance he may not succeed.


  1. Peter and Lucy meet at a party and quickly fall in love and decide to buy a house. Because Peter does not have enough money to pay the deposit, Lucy pays these expenses and the house is registered in her name. The verbal arrangement between Peter and Lucy is that they will both contribute 50/50 towards the home-loan and all other expenses. After a few months into their relationship, Lucy is retrenched and stops contributing towards the home-loan. Peter is still employed and now contributes 100% to the home-loan and all expenses. After a few more months, Lucy gets a job in Durban. Peter and Lucy decide to end their relationship because Peter does not want to move to Durban. Lucy puts the house in the market and retains all the profits for herself. Peter wants Lucy to repay him for all the months that he alone contributed towards the home-loan. Lucy refuses. Peter visits his attorney who tells him that although Peter he has a fair chance of winning a law suit against Lucy, he needs a R 25 000 up-front deposit to cover the attorney fees. Peter does not have this amount of money immediately available and as a result he cannot institute action against Lucy.


  1. Jackie and Richard have been living together for 20 years and are now in their 60s. Both have come out of messy divorces and don’t want to remarry. They are also not close to their children, who never come to visit. Both contribute equally towards rent and other household expenses. Richard and Jackie have on numerous occasions, in front of many different people confirmed that in the event of either of their deaths, the remaining partner will inherit everything. Richard suddenly dies of a heart attack after playing golf with friends one day. Because he does not have a properly executed will (there are many legal requirements which must be met in order for a will to be valid) the state declares that Richard has died intestate (without a valid will) and therefore Richard’s assets will be distributed in accordance with the law on intestate estates. Which means that Jackie will inherit nothing and all Richard’s belongings will go to his children. Further, Jackie will most likely also be evicted from the property.


  1. Rob and Louise meet at a party and quickly fall in love. After a few months, they agree to move in together. Rob immediately cancels his lease and moves in with Louise. Louise has fully furnished her flat with a tv, beds, lounge and dining room suite, dishwasher etc. Rob, having just graduated from university, only owns his car. Pretty soon Rob gets a good job and eventually after a few months of hard work, he gets an increase at work and decides to reward himself for his hard work. He buys a new car and a new wardrobe. A few months down the line however, Rob realizes that his increase is insufficient to pay for all the purchases he has put on his credit card, not to mention the debit order for his car. It isn’t long before the sheriff arrives at their door and removes all the possessions out of the house (including those belonging to Louise). Although Louise informs the Sheriff that the majority of the goods in the house are hers, he simply shrugs his shoulders and informs her that she will need to prove her claim. Louise sees an attorney, who informs her that she must prove that the goods which the sheriff removed were indeed hers and not Rob’s. In order to do this, she will need receipts for the possessions; otherwise the Sheriff will not release the goods and will sell them as if they belong to Rob exclusively. As almost all the items were bought years before Louise even met Rob, she has long since lost the receipts. Therefore, there is nothing Louise can do and the sheriff duly sells all her possessions to pay for Rob’s debts. Had Louise and Rob merely had a cohabitation agreement, this agreement could have stated which items belong to Louise and which items belong to Rob. This would have been sufficient evidence for Louise to use in order to get her possessions back from the sheriff.

From the above examples, it is clear that it makes good sense to enter into a co-habitation agreement with your partner. This agreement must clearly state the terms of the agreement as well as the rights and responsibilities of each party.

During a co-habitation relationship, the partners may contribute towards the obligations of the other (ie. the debts of the other or the groceries etc). In order to avoid disputes which may arise due to a number of reasons eg. A break up, death, sickness etc it is wise to enter into a written agreement covering certain aspects like:

  • Repayment of money 1 partner spent paying off the debts of the other;
  • Who gets what in the event of a break-up. Eg: Who gets the tv or dvd player.

REMEMBER: Proving an verbal (oral) agreement is very, very difficult. It is always better to get agreements in writing.

Do both parties have a will which states which assets the other will get in the event of death? If not- your partner will NOT inherit, except in exceptional circumstances, in the event of your death! Your assets will be distributed in terms of your will or in terms of “intestate succession” (when you pass away without a will)- which means that your assets will go to your family and not to your partner.


A common question we encounter is practice is “Who should have custody? What visitation rights does the other parent have? Can we have joint-custody” are all questions that run through your mind when divorcing or when you have a break-up after having lived together. For more information about custody when the parties cannot agree, please see our blog at


Parties who can agree to a parenting plan may approach their attorney who may have same reduced to writing and endorsed by the Family Advocate or alternatively placed before the Children’s Court. The Family Advocate is usually involved when making court orders regarding children. For more information regarding the Family Advocate, please see our blog at


We would advise all people currently involved in a co-habitation relationship, to enter into a “Co-Habitation” agreement as soon as possible.


Feel free to contact us tody for assistance with your co-habitation agreement, wills and general advice in planning estates and joint-asset buying! Set up your consultation at or on 012 754 3385. Our consultations may be done in person (after lock-down) or at any time, with set appointment online via Skype.

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