Does living together make you married in South Africa?

Ask almost anyone in South Africa what happens after seven years of living together and you will be told that you become married automatically, or that you acquire the rights of a spouse. It is one of the most widely believed things about South African law, and it is simply not true.

This guide is part of our Marriage in South Africa: civil, customary, religious and civil unions explained, which links every guide on the topic.

There is no common-law marriage in South Africa. There never has been. You can live with someone for thirty years, raise children together, buy furniture together and be treated by everybody as a couple, and in the eyes of the law you remain two unmarried people with no legal relationship to each other.

That is the starting point. What has changed, and changed significantly, is what happens when one of you dies.

While you are both alive

If the relationship ends by separation, the legal position is stark.

No maintenance. A cohabitant cannot claim maintenance from the other, however long the relationship lasted and however financially dependent one of them became. Spouses owe each other a duty of support. Partners who never married do not.

No automatic share of property. Whatever is registered in one partner's name is that partner's. A house bought in one name stays in that name even if the other paid half the bond for fifteen years. A car, a savings account and a retirement fund all follow the name on the document.

No pension or medical aid rights unless the fund or scheme's own rules provide for a life partner, which many now do but not all.

No right to stay in the home. A partner who is not an owner and not a tenant has no right of occupation once the relationship ends, although they cannot simply be thrown out either: nobody may be evicted from a home without a court order, and our eviction checker sets out what that requires.

Children are the exception, and an important one. Duties towards children have nothing to do with the parents' marital status. Both parents must support their child according to their means, and our child maintenance estimator works on the same basis whether the parents were married or not. An unmarried father's rights of care and contact are a separate question, covered in our guide on an unmarried father's rights.

What changed when a partner dies

For a long time the position on death was just as harsh. In Volks v Robinson the Constitutional Court held that a surviving life partner could not claim maintenance from the deceased's estate, on the reasoning that the couple had chosen not to marry and could not claim the benefits of marriage.

In Bwanya v Master of the High Court, decided on 31 December 2021, the Constitutional Court changed that.

Ms Bwanya had been in a relationship with Mr Ruch that had, as the court put it, most of the characteristics of a marriage. They lived together permanently, they supported each other, and they intended to marry. He died without a will. Under the law as it stood she inherited nothing and could claim nothing.

The Constitutional Court held that it was unfairly discriminatory to exclude the survivors of permanent life partnerships from protections given to the survivors of marriages. It declared both the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 unconstitutional to the extent that they did not provide for partners in a permanent life partnership in which the partners had undertaken reciprocal duties of support. In doing so it departed from Volks.

The court also read "support" broadly. It is not confined to money. Care, companionship and the emotional content of the relationship count towards showing that the partners genuinely undertook to support one another.

What Bwanya does and does not give you

This is where people over-read the judgment, so it is worth being precise.

It applies on death, not on separation. If your partner dies, you may be able to inherit on intestacy and to claim maintenance from the estate. If your partner leaves you, Bwanya does nothing for you at all.

It requires a reciprocal undertaking of support. Not every couple who share a home qualifies. The question is whether the two of them had undertaken duties of support towards each other, which is a question of evidence about how they actually lived.

It requires permanence. A relationship that was casual, intermittent or transitional will not meet the standard.

It does not make you married. You still cannot claim a share of a joint estate, because there is no joint estate. You are claiming as a survivor of a life partnership, not as a spouse.

In practice, a claim of this kind is proved with the ordinary evidence of a shared life: how long you lived together, whether you held yourselves out as partners, whether you shared expenses and accounts, what family and friends understood the relationship to be, and whether either of you was married to somebody else.

Universal partnership: the other route

Separately from Bwanya, a cohabitant may claim that the couple were in a universal partnership, which is a commercial concept rather than a family-law one.

The claim is that the two of you were effectively running a partnership, each contributing to a joint enterprise for the benefit of both, so that the assets built up should be shared. It can apply to a business, and it can apply to the accumulation of a household's assets.

To succeed you generally have to show that each partner contributed something, that the enterprise was carried on for the joint benefit of both, that the object was to make a profit, and that the agreement between you was legitimate. The agreement does not have to be written down and can be inferred from conduct.

The honest position is that these claims are hard. Courts require real evidence of a partnership rather than evidence of a relationship, and contributions that look like ordinary domestic life are often held not to be enough. It is a genuine remedy, but it is not a substitute for having sorted the position out in advance.

What to do about it

If you are living with someone and not married, three documents solve most of the problem, and none of them is expensive.

A cohabitation agreement. This is a contract, and it is enforceable between the two of you. It can record who owns what, how expenses are shared, what happens to the home if you separate, and whether either of you will support the other. It cannot create a marriage and it cannot bind third parties, but it removes the uncertainty that causes the litigation.

A will. This is the single most effective step. Bwanya matters because Mr Ruch died intestate. A will naming your partner takes the question out of the hands of the Intestate Succession Act altogether, and our will validity checker makes sure it is signed in a way that works.

Up-to-date nominations. Retirement fund and life policy nominations should name your partner. A retirement fund death benefit does not follow your will in any event, and the trustees decide it, so make sure they know the relationship exists. Our guide on how retirement fund benefits are paid on death explains why this is not the same thing as a bequest.

Register your relationship where you can: on the medical aid, with the retirement fund, with your employer. Each of those records is later evidence of exactly what a Bwanya claim has to prove.

Worked example

This example is illustrative. Sipho and Lerato live together for eleven years. The house is in Sipho's name; Lerato paid half the bond and all the rates from her salary for nine of those years. They never married and neither made a will.

If they separate, Lerato has no claim to the house by virtue of the relationship. Her route would be a universal partnership claim, and she would have to prove a partnership rather than a long relationship. Her bank statements showing nine years of bond and rates payments are the strongest thing she has, and even then the outcome is uncertain.

If Sipho dies, the position is different. Lerato may claim as the survivor of a permanent life partnership in which reciprocal duties of support were undertaken: to inherit on intestacy, and to claim maintenance from the estate. The eleven years, the shared finances and the way they lived are all evidence that supports it.

The difference between those two outcomes is not a principle of justice. It is a gap in the law that Bwanya filled on one side and not the other. A cohabitation agreement and two wills, drawn at any point in those eleven years, would have removed the question entirely.