Explore the crucial legal implications for unmarried couples in South Africa, from inheritance rights to the importance of drafting a will. Understand how cohabitation affects your legal standing and what steps you can take to protect your partner.
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Love may last forever, but marriage seems to be falling out of favour. Statistics show a sharp drop in married adults in South Africa. A question for the many unmarried couples who choose to live together to ask themselves is what automatic legal protections apply when your cohabiting partner passes away?
The short answer is none. South African law does not recognise cohabitation partnerships, nor do we have an equivalent to “common law” marriages. The law certainly permits people who are in a relationship to live together, but in the eyes of the law, that’s not a marriage. And if there is no will, unmarried “life partners” have no automatic right of inheritance.
Marriage in decline
This has significant implications in South Africa, where only 23.8% of individuals were legally married in 2022 (down from 35.6% in 1996). Statistics SA found that the proportion of people never married also increased over the same period from 52.8% to 61.7%.
Those who do marry are also marrying later in life. In 2014, most brides were aged 25 to 29. By 2023, the most common age bracket for newlywed women had shifted to 30 to 34 years. The shift away from conventional marital structures is clear.
No will, no claim
For unmarried couples who live together, the only true legal protection comes in the form of a valid, signed will. If an individual dies without a will (the legal term is “intestate”), their unmarried partner has no automatic right to inherit. Although the Constitutional Court has created limited exceptions for “marriage-like” life partnerships, in terms of intestate succession, the law follows a hierarchy of blood relatives, and unmarried partners are not on that list.
So, no matter how long you’ve been living together, if you pass away without a will, your cohabiting partner is, in the eyes of South Africa’s Intestate Succession Act, treated no differently from a friend, with no rights of inheritance. This can create all sorts of unpleasantness: claims, counterclaims, and legal challenges.
Same rules for civil unions
The question of civil unions can create confusion in this context. Under the Civil Union Act, this is a legally recognised partnership between two people, regardless of gender, that gives the couple the same rights, responsibilities, and legal protections as a marriage. This gives same-sex relationships the same legal footing as heterosexual relationships – and in both cases, if the civil union is not formally registered, the law treats the partners as unmarried. In that case, if your relationship partner dies without a will, you have no claim on any of their assets, including whether they own or part-own the home you’ve been living in together.
A cohabitation agreement does not equal a will
Some unmarried couples draw up a cohabitation agreement, but this does not have the legal authority to leave or pass on assets such as money, property, or possessions to someone in your will after your death. Because it is not a will. If you want to bequeath assets that you have acquired – either individually or jointly in your cohabitation relationship – you must draw up a will.
Similarly, an unmarried partner has no automatic claim as a beneficiary of their cohabiting partner’s pension fund. In terms of the Pension Funds Act, trustees will determine whether the surviving partner was factually and financially dependent on the deceased pension fund member. A cohabiting partner can be allocated a portion of the benefit if dependency is proven, but this does not happen automatically. Each case is judged on merit.
What you can do
Not every couple needs to rush out and get married. For some relationships, cohabitation is the most suitable arrangement. South African law recognises several formal relationship structures, including the choice not to marry.
However, if you are in a relationship, and you want your partner to inherit something you legally own, the strongest legal recommendation is to draft a will and ensure it’s correctly signed, witnessed, and kept in safe storage.
A valid will gives you peace of mind and provides guidance and clarity on how your assets should be distributed if you pass away. Drafting a will is an act of love for your partner.
* Sankie Morata CFP, chief executive of Sanlam Trust.
PERSONAL FINANCE