If you and your partner are not married and your relationship is ending, this guide to unmarried couples separating in South Africa explains the practical legal issues that usually arise: property, children, maintenance, debt, the home, and possible claims between partners.
This article is not about whether a long relationship becomes a marriage. That status question is covered separately. Here, the focus is what to do when the relationship ends and there is a dispute to resolve.
Start with the correct legal status
South Africa does not recognise common-law marriage. That is the procedural starting point, not the whole answer. If the parties were not married, in a civil union, or in a valid customary marriage, they do not divorce — but they may still have property, contractual, partnership, parenting or maintenance issues to resolve.
What happens to property when unmarried couples separate?
Property usually follows ownership. If a house, vehicle or bank account is in one partner’s name, that is the starting point. The other partner does not automatically get half simply because the relationship existed.
There may still be a claim if the parties had a written agreement, co-owned property, made provable contributions, or if the facts support a recognised legal claim such as a universal partnership. These claims are evidence-sensitive and can be difficult to prove without documents.
Universal partnership claims between unmarried partners
A universal partnership claim may arise where the parties contributed to a joint venture or common financial enterprise with the intention of sharing in its benefits. The contribution does not always have to be financial; labour, management, domestic contribution and other forms of contribution may be relevant depending on the facts.
This is not an automatic remedy. The claimant must prove the legal basis and the facts. Bank records, messages, property documents, renovation invoices, business records and witness evidence may all matter.
What if both partners contributed to the home?
This is one of the most common disputes. One partner may own the property, while the other paid bond instalments, renovations, rates, groceries, childcare or household expenses. Whether that creates a claim depends on the evidence and the legal basis advanced.
Keep proof of payments, messages about financial arrangements, bank records, renovation invoices, and any written agreement. If the home is the main asset, get advice before moving out or signing anything.
Where the law currently stands
South African law has developed unevenly for unmarried life partners. The safest position is to treat each issue separately: property, maintenance, succession, children, domestic violence and contract may each have different legal answers.
Volks NO v Robinson and Others (CCT 12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC) was the historical baseline for surviving life-partner maintenance claims. The Constitutional Court did not impose a general spousal-maintenance consequence on unmarried partners in that case.
Bwanya v Master of the High Court, Cape Town and Others (CCT 241/20) [2021] ZACC 51; 2022 (4) BCLR 410 (CC); 2022 (3) SA 250 (CC) later changed the position for surviving permanent life partners in specific death-related contexts. It extended intestate-succession and maintenance-of-surviving-spouses protection to a surviving partner in a permanent life partnership where reciprocal duties of support were undertaken.
The Domestic Partnerships Bill remains a draft Bill. At the time of writing, South Africa has not enacted a comprehensive domestic-partnership statute that automatically regulates all property and maintenance consequences when unmarried partners separate.
Can an unmarried partner claim maintenance after separation?
There is no automatic spousal maintenance claim merely because the parties lived together. Children’s maintenance is different: a child’s right to maintenance exists regardless of whether the parents were married.
Claims between adult partners must be assessed on their own legal basis, such as contract, universal partnership, enrichment, or another recognised claim. For child maintenance, see SDLAW’s guide to child maintenance and fathers’ rights in South Africa.
What happens where there are children?
Parents have responsibilities and rights in relation to their children regardless of whether they were married. Separation may require arrangements for care, contact, guardianship, schooling, medical decisions, holidays and maintenance.
A parenting plan can help reduce conflict by putting the arrangements in writing. If parents cannot agree, the Family Advocate, Children’s Court or another court process may become relevant, depending on the issue.
Should unmarried couples have a cohabitation agreement?
Yes, where the relationship is serious, property is being bought, expenses are shared, or one partner is financially dependent on the other. A cohabitation agreement can record ownership, contributions, debt, household expenses, what happens on separation, and what happens if one partner dies.
For a deeper guide, see SDLAW’s page on cohabitation agreements in South Africa.
What if there was no written agreement?
Without a written agreement, the evidence becomes more important. Courts may consider documents, conduct, contributions and the parties’ intentions. But proving an informal arrangement is harder than relying on a properly drafted agreement.
Do not assume that fairness alone is enough. A court needs a legal basis and evidence.
Practical checklist before separation
- List all assets and debts.
- Collect proof of ownership and contributions.
- Secure copies of bank statements and property documents.
- Keep proof of household payments, renovations and shared expenses.
- Record arrangements for children in writing.
- Do not sign a settlement without understanding your rights.
- Get advice if there is property, financial dependency or conflict.
When to get legal advice
Get advice if you bought property together, one partner owns the home, one partner paid for improvements, there are children, there is financial dependency, there is domestic violence, or there is a dispute about who must leave the home.
SDLAW has a broader guide to unmarried couples’ rights in South Africa. For advice on your facts, contact Simon Dippenaar & Associates.
Frequently asked questions about unmarried couples separating
No, not unless they are legally married, in a civil union, or in a recognised customary marriage. Cohabiting partners separate without a divorce process, but they may still have property, children or financial disputes.
A universal-partnership claim is a civil claim, not a divorce. It must be brought in a court with jurisdiction over the claim and the relief sought. Substantial property disputes are often handled in the High Court, but the correct forum depends on value, property, jurisdiction and the remedy claimed.
Not automatically. Ownership, contributions, agreements and the facts determine whether there may be a claim. Get advice before assuming either party has no claim or a guaranteed claim.
Yes. Parenting plans can be useful for unmarried parents and may deal with care, contact, holidays, schooling and decision-making.
This article is general information, not legal advice. Cohabitation and life-partner disputes are evidence-sensitive and should be assessed on the documents and facts.