Legal protections for unmarried couples: What happens if your partner passes away?

As many South Africans embrace the idea of cohabitation, often sharing homes and building lives without a formal marriage, they remain unaware of the precarious legal landscape that surrounds their relationships.

Living together may feel like a secure option, but as Shaka Zwane, Head of Insurance and Fiduciary at Standard Bank, warns, the absence of a marriage certificate can lead to significant legal challenges, particularly if one partner passes away.

In his insights, Zwane highlights the common reasons for cohabitation in South Africa—economic circumstances pushing couples to pool resources, and the desire to understand each other's habits better before entering marriage.

This shift is reflected in the 2022 Census Survey Report, which reveals that approximately 8 in every 100 couples choose to live together before marriage, adopting a more modern approach to relationships. While the arrangement can be practical, it is vital for these couples to grasp the potential complications that come when life takes an unexpected turn.

“Family disputes over assets are common after a death,” says Zwane, emphasising the trials faced by unmarried partners. He warns that unlike married couples, cohabiting partners do not benefit from legal protections such as the Maintenance of Surviving Spouses Act.

“Many people assume that the longer they’ve lived together, the more likely the law will recognise them as a ‘surviving spouse,’ but that’s a difficult and uncertain legal route,” he explains.

Know your rights

Despite the challenges, Zwane points to a glimmer of progress in the recognition of rights for couples in permanent cohabiting relationships. The landmark ruling in 2021’s Bwanya v Master of the High Court by the Constitutional Court established that partners in such relationships, where a reciprocal duty of support exists, can inherit and claim maintenance from a deceased partner’s estate.

The subsequent introduction of the Judicial Matters Amendment Act 15 of 2023 further affirms these rights for both same-sex and opposite-sex partners.

However, this newfound protection does not come automatically. “The process still requires legal action to prove the reciprocal duty of support,” cautions Zwane.

He strongly advocates for couples to take proactive measures by documenting their intentions through a Last Will and Testament and a cohabitation agreement.

• A cohabitation agreement should explicitly outline each partner’s responsibilities and rights regarding shared assets.
• This agreement must also align with their wills to prevent future disputes.
• Failing to establish these important documents can lead to severe financial strain and emotional distress for the surviving partner.

In sum, while significant legal advancements have been made to safeguard the interests of cohabiting partners, the most prudent path forward is through proactive legal planning. Drafting a will, signing a cohabitation agreement, and clarifying intentions are all essential steps to ensuring that couples can navigate potential tribulations with confidence, avoiding unnecessary heartache after a loss.

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