Debunking the Myth of Domestic Partnership Rights in South Africa

By: Kasper Brits – Brits Law Inc.

Published Wednesday, 19 September 2023.


In South Africa, cohabitation has gained immense popularity in recent years, with the number of cohabitants increasing by almost 100 percent each year. However, there exists a pervasive misconception that living together, often referred to as common law marriage, automatically grants couples the same legal rights and protections as married couples. This blog aims to debunk the myth surrounding domestic partnership rights in South Africa and shed light on the reality of cohabitation within the country’s legal framework.

Cohabitation: What it Means

Cohabitation, also known as living together or domestic partnership describes the arrangement where two individuals, regardless of gender, choose to live together without undergoing a formal marriage ceremony. Historically, such relationships were often labeled as extramarital cohabitation. It’s essential to understand that South African law does not recognize cohabitation as a legal relationship, which has significant implications for the rights and responsibilities of those involved.

The Absence of Legal Regulation

One of the most significant misconceptions about cohabitation in South Africa is the belief that after a certain duration of living together, a common law marriage automatically comes into existence, granting the couple legal rights and benefits akin to those of married couples. Unfortunately, this assumption is incorrect. South African law does not provide any legal framework to regulate the rights and duties of cohabiting couples.

Lack of Legal Recognition

Unlike marriages, which are legally recognized and come with a comprehensive set of rights and responsibilities, cohabiting couples do not enjoy the same legal standing. The absence of legal recognition means that cohabitants are not entitled to the rights and benefits that married couples receive. This is true regardless of the duration of their cohabitation.

Key Points to Remember

  1. No Automatic Common Law Marriage: Contrary to popular belief, simply living together for a specific period does not result in the creation of a common law marriage in South Africa. The legal status of cohabiting couples remains unchanged.
  2. No Legal Protections: Cohabiting couples do not have access to the legal protections, rights, and benefits that are inherent in a formal marriage.
  3. Individual Agreements: To protect their interests, cohabiting couples should consider drafting cohabitation agreements that outline their respective rights, responsibilities, and expectations.
  4. Property Rights: South African law does provide some protection regarding property rights in cohabitation, primarily through property law. However, these rights are limited and differ from the rights enjoyed by married couples.

Exeptions to the rule

There are certain exceptions to the above. Certain legal benefits are derived from cohabiting such as in the cases of taxed deceased estates of cohabiting partners, medical dependant benefits and certain rights derived in respect of the Domestic Violence Act. These are however very limited and can be hard to prove in court.

In South Africa, the myth of domestic partnership rights persists, leading many cohabiting couples to believe that they automatically acquire legal benefits similar to those of married couples over time. However, the reality is quite different. Cohabitation is not legally recognized as a marriage, and the rights and duties that come with marriage do not apply. To safeguard their interests, cohabiting couples should consider seeking legal advice and drafting cohabitation agreements. Understanding the legal framework surrounding cohabitation is essential to ensure that individuals are aware of their rights and responsibilities within this type of relationship in South Africa.