Many South African couples live together without getting married. A widespread belief is that, after a few years, they acquire the same rights as a married couple through a “common-law marriage”. That is a myth. South African law does not recognise common-law marriage, and cohabiting partners do not automatically have the rights and duties of spouses.
The position has changed in important ways in recent years, particularly when one partner dies. This article sets out where unmarried partners stand.
During the relationship
There is no automatic legal duty of support between unmarried partners, and no matrimonial property regime. Each partner owns what is registered in their name or what they bought, regardless of who contributed or how long the relationship has lasted.
When the relationship ends
On separation, there is no automatic claim for a share of the other partner’s assets, and no claim for maintenance for the partner, however long the relationship lasted.
A partner who has contributed to building up assets may, however, be able to claim on one of the following bases.
A universal partnership. In Butters v Mncora 2012 (4) SA 1 (SCA), the Supreme Court of Appeal confirmed that a universal partnership can exist between cohabitants. A partnership may be express or tacit, inferred from conduct. The partner must prove that each party contributed money, property, labour or skill, that the partnership was carried on for their joint benefit, and that its object was to make a profit. The court accepted that contributions to the household and to raising children can count. If proved, the partner is entitled to a share of the partnership assets.
Joint ownership. Property registered in both names is co-owned. A co-owner may ask the court to end the co-ownership, for example by ordering a sale and division of the proceeds (the actio communi dividundo).
Contracts. A written or proven oral agreement between the partners, such as an agreement about a shared home or a loan, can be enforced.
These claims depend heavily on the evidence. They are usually more complex and expensive to prove than claims between spouses.
When a partner dies
This is where the law has changed most significantly.
In Bwanya v Master of the High Court, Cape Town [2021] ZACC 51, the Constitutional Court departed from its earlier decision in Volks v Robinson (2005). It held that excluding surviving permanent life partners from the Intestate Succession Act and the Maintenance of Surviving Spouses Act was unconstitutional, where the partners had undertaken reciprocal duties of support.
Parliament gave effect to the judgment through the Judicial Matters Amendment Act 15 of 2023, which came into operation on 3 April 2024. As a result:
- Intestate succession. If a partner dies without a valid will, a surviving partner in a permanent life partnership in which the partners undertook reciprocal duties of support may inherit as a spouse would.
- Maintenance from the estate. A surviving partner who has not received an equitable share of the estate may claim maintenance from the deceased’s estate for their reasonable needs until death or remarriage, to the extent they cannot support themselves.
The surviving partner must prove the relationship and the reciprocal duty of support. Evidence may include a shared home, joint finances, mutual financial support, how the couple presented themselves to family and friends, and the duration of the relationship. Disputes with the deceased’s family are common.
These changes do not give a surviving partner rights if the deceased left a valid will that excludes them. A will remains the most reliable protection.
Other rights
- Loss of support claims. In Paixão v Road Accident Fund 2012 (6) SA 377 (SCA), the court recognised that a cohabiting partner who was supported by the deceased under a contractual or reciprocal duty of support can claim from the Road Accident Fund for loss of support.
- Pension and provident funds. Section 37C of the Pension Funds Act requires the fund trustees to consider all dependants, including a partner who was dependent on the member. Nominating your partner as a beneficiary helps.
- Domestic violence. The Domestic Violence Act protects people in a domestic relationship, including cohabiting and dating partners. See our article on protection orders.
- Children. The rights of children do not depend on whether their parents were married. Both parents must support their children. An unmarried father may acquire full parental responsibilities and rights under section 21 of the Children’s Act. See our article on care and contact.
What about new legislation?
A Domestic Partnerships Bill was published in 2008 but never passed. The Marriage Bill, which Parliament is still considering, would bring different types of marriage under one law but does not create a general regime for unmarried partners. For now, couples must rely on case law, the 2024 amendments and their own planning.
Protecting yourselves: a cohabitation agreement
The best protection for unmarried couples is a cohabitation agreement (sometimes called a life partnership agreement). It can record:
- who owns which assets, and how jointly acquired assets will be divided on separation;
- contributions to the home and household expenses;
- whether either partner will pay maintenance after separation, and for how long;
- arrangements for pets, vehicles and business interests; and
- how disputes will be resolved.
Couples should also make wills, update beneficiary nominations on policies and retirement funds, and consider how a home is registered and financed.
How O’Reilly Law can help
We draft cohabitation agreements and wills, advise surviving partners and estates on claims after Bwanya, and act in disputes about universal partnerships and jointly owned property. Through O’Reilly Fiduciary, we also assist with estate planning and administration. Contact us to discuss your situation.
Related reading: Getting divorced in South Africa · Care and contact under the Children’s Act
This article is general information and not legal advice. Every relationship turns on its own facts. Correct as at October 2026.