Marriage and Matrimonial Property

 

 

No. In South Africa, cohabiting partners do not automatically inherit from their partner's estate under the laws of intestate succession if there is no valid will. If you wish for your cohabiting partner to inherit from you, you must make provision for them in a valid will.

The most effective way to protect your rights is to have a Cohabitation Agreement. This is a written, legally binding contract that outlines how you will manage your finances, ownership of individual and joint assets, contributions to expenses, and how assets will be divided if the relationship ends. Keeping clear records of financial contributions to joint property or shared expenses is also crucial as supporting evidence.   

No. Cohabitation alone does not create automatic property rights between partners. Property acquired by one partner before or during the relationship, in their name and with their funds, generally remains their sole property unless there is a specific agreement or legal principle that dictates otherwise. Ownership is primarily determined by who holds legal title (e.g., on a title deed). 

Without a Cohabitation Agreement, there is no automatic legal framework for dividing assets. For jointly owned property, if you cannot agree on how to divide it (e.g., one buys out the other, or it is sold), you may need to approach a court for intervention. For property held in one partner's name, the other partner generally has no claim unless they can successfully prove a legal basis such as:   

  • The existence of a Universal Partnership (proving you intended to pool resources and share profits like a marriage in community of property).
  • A claim based on Unjust Enrichment (proving your contributions unfairly benefited your partner at your expense).   
  • An express or implied contractual agreement to share. These legal claims can be complex, costly, and uncertain without clear written evidence.

No. Contrary to popular belief, South African law does not recognise "common law marriage." This means that regardless of how long a couple lives together, they do not automatically acquire the same legal rights and protections regarding property, finances, or inheritance as married couples.  

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Cohabitation and Property

Cohabitation and Property Rights in South Africa

Cohabitation, where couples live together without being married, is increasingly common in South Africa. While this arrangement offers flexibility, it's crucial for cohabiting partners to understand that the law does not automatically grant them the same property rights or legal protections as married couples.
Unlike married spouses who benefit from automatic matrimonial property regimes (like community of property or accrual), cohabitants must proactively take steps to define their financial and property relationship.

The Core Principle - No Automatic Rights

In South Africa, cohabitation on its own does not create automatic rights to your partner's property or inheritance.

  1. Property Ownership - Property acquired by one partner before the relationship, or acquired during the relationship solely in one partner's name with their own funds, generally remains the exclusive property of that partner.
  2. Inheritance - A cohabitant does not automatically inherit from their partner's estate if their partner passes away without a valid will. There is also no automatic legal obligation for spousal maintenance after death.
  3. Property ownership is primarily determined by legal title – whose name appears on the title deed for immovable property, vehicle registration documents, or bank accounts.

Jointly Owned Property - Buying a House Together

Many unmarried couples choose to buy property together. When both partners' names are registered on the title deed, they are considered joint legal owners, typically in equal shares unless specified otherwise.

However, simply being a joint owner on the deed doesn't always prevent disputes, especially if contributions to the deposit, bond repayments, maintenance, or improvements were unequal. Without a clear agreement, proving financial contributions can be challenging when the relationship ends.

Protecting Your Rights and Assets: The Importance of Planning

Given the lack of automatic legal protection, taking proactive steps is essential for cohabiting couples to safeguard their interests and clearly define what should happen to their assets, particularly jointly acquired property, if the relationship ends:

  • Draft a Cohabitation Agreement This is the most effective way to establish clarity. A legally binding written cohabitation agreement, notarised by a notary public, can explicitly define:
    • Ownership of assets acquired before and during the relationship.
    • Financial contributions to joint property and shared expenses.
    • How jointly owned property and other assets will be divided upon separation.
    • Arrangements for debt.
    • Other relevant matters.
  • Consider a Universal Partnership If a couple has pooled resources and labour with the intention of sharing in profits and losses, they may be able to prove the existence of a "universal partnership". If successfully proven, this can lead to a division of assets accumulated within the partnership, similar in effect to a marriage in community of property. However, proving a universal partnership can be legally complex without a written agreement.
  • Keep Records Maintain clear records of significant financial contributions made to joint assets, renovations, or the household. This documentation can be crucial evidence should a dispute arise.
  • Update Your Will If you wish for your cohabiting partner to inherit from your estate, it is vital to have a valid will specifically stating your intentions.

What Happens Without an Agreement When the Relationship Ends?

If a cohabiting couple separates without a cohabitation agreement or a provable universal partnership, the division of assets can become complicated and contentious.

  • Joint Property Disputes over jointly owned property may arise regarding whether to sell, who gets to buy out the other, and how proceeds should be divided, especially if contributions were unequal.
  • Legal Action If partners cannot reach an agreement, they may need to approach the courts for resolution. Courts will typically decide based on legal principles such as:
    • Contract Law If there were any verbal or implied agreements about sharing property or contributions.
    • Property Law Determining ownership based on title deeds and proof of contributions.
    • Unjust Enrichment Arguing that one partner was unfairly enriched at the expense of the other through contributions made to their property.
  • However, pursuing these legal avenues can be costly, time-consuming, and the outcome is less predictable than having a clear cohabitation agreement in place.

Why Consult VDM Attorneys?

Navigating property rights as a cohabiting couple in South Africa involves significant legal complexities. Without proper planning, you could face uncertainty, disputes, and financial prejudice upon separation or the death of a partner.

At VDM Attorneys, our experienced family law team can provide you with expert legal advice tailored to your unique cohabitation circumstances. We can assist you with:

  • Understanding your current property rights.
  • Drafting a comprehensive cohabitation agreement to protect both partners' interests.
  • Advising on and helping to prove the existence of a universal partnership.
  • Providing guidance and representation in disputes regarding property division.
  • Assisting with drafting or updating wills.

Don't leave your property rights to chance. Contact VDM Attorneys today to ensure your cohabitation relationship has the legal clarity it needs.