Cohabitation, Engagement & the Common Law Marriage 

1️⃣The Dangerous Myth

There is a widespread belief in South Africa that living together for a certain period automatically creates a “common law marriage.”

This is completely false.

⚖️ There is no such thing as a common law marriage in South African law.

Living together for 6 months, 2 years, or 20 years does not create automatic rights.

This myth is dangerous. It leaves thousands financially exposed when relationships end — whether through separation or death.

If you are not legally married, the law does not automatically protect you.

2️⃣Why South Africa Does Not Recognise “Common Law Marriage”

For your relationship to be recognised as a marriage, you must:

✔️ Marry under the Marriage Act
✔️ Marry under the Civil Union Act
✔️ Marry under the Recognition of Customary Marriages Act

Simply living together is not enough.

2026 Legal Position

The Domestic Partnerships Bill remains stalled.
As of early 2026:

❌ No automatic inheritance rights
❌ No automatic maintenance rights
❌ No automatic spousal protection

Unmarried partners remain legal strangers.

3️⃣The Harsh Reality: What You DO NOT Get

❌ No Inheritance (If There Is No Will)

If your partner dies without a will:

You inherit nothing.

The estate goes to:

• Children
• Parents
• Siblings

Even after 30 years together.

❌ No Maintenance From the Estate

The Maintenance of Surviving Spouses Act only applies to legal spouses.

If you depended financially on your partner — you cannot claim maintenance from their estate.

❌ No Automatic Right to Stay in the Home

If the property is in your partner’s name, legal heirs can require you to vacate.

There is no automatic right of occupation.

❌ No Duty of Support During the Relationship

In marriage, spouses owe each other financial support.

In cohabitation, there is no automatic duty of support.

4️⃣Where You DO Have Protection

 Children’s Rights

The Children’s Act protects children regardless of marital status.

✔️ Both parents must financially support their children
✔️ Maintenance can be claimed
✔️ Best interests of the child remains central

Unmarried fathers who acknowledge and contribute to their children have full parental rights.

🛑 Domestic Violence Protection

The Domestic Violence Act applies to:

✔️ Cohabitants
✔️ Dating partners
✔️ Former partners

You do not need to be married to apply for a Protection Order.

5️⃣The Universal Partnership Myth

A Universal Partnership is not common law marriage.

It is a legal remedy requiring proof that:

• Both parties contributed
• The relationship operated as a joint venture
• There was intention to benefit financially
• A valid agreement existed

⚠️ It is difficult to prove.
⚠️ It requires High Court litigation.
⚠️ Courts apply strict standards.

Do not rely on this.

6️⃣The Real Solution: A Cohabitation Agreement

If the law won’t protect you automatically — protect yourself contractually.

A Cohabitation Agreement sets out:

🏠 Property ownership
💰 Household expenses
📦 Asset division on separation
📑 Debt responsibility
🛡️ Separation terms

2026 Best Practice

Both partners should obtain independent legal advice before signing. Courts scrutinise fairness.

Think of it as:

Your marriage contract,  without being married.

7️⃣Engagement: Is It Legally Binding?

Yes.

An engagement is a binding contract to marry.

But:

❌ No one can be forced to marry.
❌ You cannot sue for emotional damages.

If Engagement Is Broken:

✔️ You may claim actual financial losses
✔️ Ring rules depend on who breaks it off
✔️ Courts increasingly avoid excessive damages

You cannot sue someone for “wasting your time.”

8️⃣Practical Checklist (Do This Now)

If you are cohabiting:

✔️ Draft a valid Will
✔️ Sign a Cohabitation Agreement
✔️ Update beneficiary nominations
✔️ Keep proof of financial contributions

Love is emotional.
Legal protection is contractual.

9️⃣Final Word

In South Africa:

If you are not married, you are not automatically protected.

Do not rely on myths.
Rely on documents.

With Legal&Tax you’re not alone

Don’t Leave Your Future to a Myth  Protect Your Relationship — Properly. 

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☎️ Call: 0860 587 587
✉️ Email: info@legalandtax.co.za