Common law marriage – Contrary to widely held belief, South African couples who live together do not become legally married under common law after a set period of time.
Living together does not automatically create the full rights and duties of marriage. Rights may still arise from a contract, co-ownership, a proven universal partnership, the Children’s Act where children are involved, or specific death-related rules. The legal basis and evidence matter, so each issue must be assessed separately.
South Africa does not have a comprehensive enacted domestic-partnership statute that automatically regulates property, maintenance and separation for all cohabiting couples.
Cohabitation agreements
Couples living together who want to clarify their relationship and enter into a lawful agreement can enter into a cohabitation agreement.
A properly drafted agreement can record ownership, financial contributions, household expenses, debt and what should happen if the relationship ends or one partner dies.
Read SDLAW’s guide to cohabitation agreements in South Africa.
If you are planning to marry rather than cohabit, you should think carefully about the right antenuptial contract before marriage.
Domestic partnerships: current legal position
The Domestic Partnerships Bill published in 2008 remains a draft. It should not be treated as enacted law or relied on as if registration rights are already available.
The Constitutional Court in Bwanya v Master of the High Court, Cape Town and Others recognised specific rights for qualifying permanent life partners in death-related succession and maintenance contexts. The judgment did not turn every cohabiting relationship into a marriage or create a single set of consequences for separation.
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