Cohabitation vs Marriage in South Africa — Know Your Rights
Many South Africans believe that living together for a number of years makes them "common-law married". It does not. No matter how long you cohabit, you do not automatically gain the rights of a married couple — a myth that costs partners dearly when a relationship ends or a partner dies.
Cohabitation (Living Together)
Two people living together in a relationship without being legally married. South African law does NOT recognise this as a marriage, regardless of how many years it lasts.
When it applies: Partners who live together but have not entered a civil, customary, or civil-union marriage.
Law: No specific statute — common law. Limited protection via a cohabitation agreement or a court-recognised "universal partnership".
Example: A couple lives together for 15 years. One partner dies without a will — the survivor is not an automatic heir and cannot claim spousal maintenance from the estate.
Marriage (Civil, Customary, or Civil Union)
A union legally recognised under the Marriage Act, Recognition of Customary Marriages Act, or Civil Union Act — creating automatic reciprocal rights and duties between the spouses.
When it applies: Couples who formalise their relationship through a recognised marriage.
Law: Marriage Act 25 of 1961; Recognition of Customary Marriages Act 120 of 1998; Civil Union Act 17 of 2006
Example: A married spouse automatically inherits on intestacy and can claim maintenance from the deceased's estate.
Key Differences at a Glance
| Aspect | Cohabitation (Living Together) | Marriage (Civil, Customary, or Civil Union) |
|---|
| Recognised as a marriage? |
No — no matter how long you live together |
Yes |
| Duty to maintain partner |
None — no automatic spousal maintenance |
Yes — a reciprocal duty of support |
| Inheritance if no will |
Not an automatic heir |
Automatic intestate heir |
| Property on separation |
Each keeps what is in their name, unless a universal partnership is proven |
Divided per the matrimonial property regime |
| Claim from deceased estate |
Generally none |
Yes — under the Maintenance of Surviving Spouses Act |
| How to get protection |
Cohabitation agreement or prove a universal partnership |
Automatic on marriage |
Frequently Asked Questions
We have lived together for 10 years — aren't we automatically married?
No. There is no "common-law marriage" in South Africa. Length of time gives you no marital rights whatsoever. This is one of the most costly legal myths in the country.
Can I claim maintenance from my partner if we break up?
Not automatically. Cohabitants have no legal duty to maintain each other. You may have a claim if you can prove a "universal partnership" or have a cohabitation agreement — but child maintenance for any children is always owed.
What happens if my cohabiting partner dies without a will?
You are not an automatic intestate heir. Without a valid will naming you, you may inherit nothing — even after decades together. A will and a cohabitation agreement are essential protections.
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