THE LEGAL CHALLENGES OF COHIBITATION WITHOUT MARRIAGEIN SOUTH AFRICA: RIGHTS, REMEDIES, AND REFORM

Abstract

This article examines the legal challenges facing cohabiting couples in South Africa where partners live together without marrying. Although cohabitation is a common family arrangement, South African law continues to provide only fragmented protection to unmarried partners, particularly in relation to property disputes, maintenance claims, and intestate succession. The article argues that the current legal position is inadequate because it depends heavily on title, contract, and selective judicial intervention rather than on a coherent statutory framework. It considers the development of the law through key cases such as Volks NO v Robinson, Hassam v Jacobs NO, Butters v Mncora, Paixão v Road Accident Fund, and Bwanya v Master of the High Court, showing how the courts have gradually expanded protection in limited contexts. The article further evaluates the practical consequences of legal uncertainty for vulnerable partners, especially those who contribute unpaid domestic labour or financial support without formal ownership rights. It concludes that while judicial developments have improved protection, South Africa still requires clear legislative reform to regulate permanent life partnerships more fairly and predictably.

Introduction

South African family law increasingly confronts a social reality in which many couples live together without marrying yet build households that function in much the same way as a marriage. The difficulty is that the law does not automatically attach the same legal consequences to cohabitation as it does to marriage, leaving partners vulnerable when a relationship ends or when one partner dies.¹ The problem is particularly serious where one partner has contributed domestic labour, financial support, or caregiving without title to the property or formal recognition in law.²

This article argues that cohabitation without marriage remains legally vulnerable in South Africa because protection is fragmented, case-specific, and dependent on proving contractual or quasi-contractual claims after the harm has already occurred.³ Although the Constitutional Court has increasingly recognised the need to protect permanent life partners in limited contexts, the absence of a general statutory framework means that cohabitants still face uncertainty regarding property, maintenance, and inheritance.

This article first sets out the present legal framework. It then analyses the leading case law and evaluates the doctrinal and policy limits of the current position. Finally, it considers whether legislative reform is needed to create a coherent and constitutionally sound system of protection.

Legal framework

South African law does not treat cohabitation as the equivalent of marriage or civil union. Unmarried partners therefore do not automatically acquire the patrimonial consequences of marriage, nor do they receive the full statutory protection available to spouses.¹ In principle, property follows title, meaning that ownership ordinarily rests with the person in whose name the asset is registered unless some other legal basis can be proven.⁴ This creates immediate difficulty in long-term domestic relationships where resources are pooled informally and contributions are not documented.

The legal remedies available to cohabitants are limited and indirect. They may rely on contract, property law, unjust enrichment, or the doctrine of universal partnership, but each of these routes has evidential and doctrinal constraints.¹ A cohabitation agreement can regulate property and support, but many couples do not conclude such agreements, either because they trust each other or because they do not anticipate breakdown.⁴ Where no agreement exists, the claimant must often prove a universal partnership, which requires evidence of a common enterprise and an intention to share profits or gains, as set out in Butters v Mncora 2012 (4) SA 1 (SCA) para 18. That doctrine can be useful, but it is not tailored to domestic relationships and does not always capture the reality of non-financial contributions such as caregiving, homemaking, and emotional support.

The constitutional context matters. Section 9 of the Constitution prohibits unfair discrimination, including on the ground of marital status, and section 10 protects dignity. Those values have influenced the courts’ willingness to extend protection to permanent life partners in some circumstances, especially where exclusion would be harsh or arbitrary. However, constitutional values have not produced a general cohabitation regime. Instead, the law continues to distinguish between marriage and cohabitation, and only selectively softens that divide where constitutional concerns are strongest, as illustrated by Volks NO v Robinson and Others [2005] ZACC 2.

Case law analysis

The Constitutional Court’s decision in Volks NO v Robinson and Others [2005] ZACC 2 remains the foundational authority on maintenance claims by unmarried partners. The Court held that the exclusion of a permanent heterosexual life partner from the Maintenance of Surviving Spouses Act did not amount to unfair discrimination in that case. Its reasoning stressed the legal difference between marriage and cohabitation: marriage creates reciprocal duties of support by operation of law, while cohabitants generally do not assume those duties unless they choose to do so. This decision established a formal distinction between married and unmarried partners that shaped later litigation.

The practical significance of Volks is that it left many long-term partners without a maintenance remedy, even where the relationship was stable, exclusive, and economically interdependent. The judgment reflected a narrow view of family formation, one that privileged marriage as the exclusive legal institution capable of creating statutory consequences. That approach increasingly came under pressure as South African family law developed in response to constitutional values and changing social realities.

In Hassam v Jacobs NO and Others [2009] ZACC 19, the Constitutional Court adopted a more inclusive approach in the context of intestate succession for widows in polygynous Muslim marriages. Although Hassam did not concern ordinary cohabitation, it is important because it confirmed that the law should not rigidly exclude vulnerable partners simply because their relationship did not fit conventional marriage assumptions. The Court recognised that exclusions based on marital form, religion, and gender could produce unfair discrimination where the effect was to deny protection to women who were substantively in a spousal relationship. The case thus signalled a willingness to interpret family law in light of constitutional equality and dignity.

The most important recent authority is Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51. The Constitutional Court held that the exclusion of a surviving permanent life partner from the Intestate Succession Act and the Maintenance of Surviving Spouses Act was unconstitutional to the extent that it denied protection to a permanent life partner in a relationship of reciprocal support. The Court recognised that a permanent life partnership may create the same dependency and vulnerability that marriage creates, particularly where the partners shared a household and undertook reciprocal duties of support.

Bwanya marks a substantial shift away from the formalism of Volks. The Court accepted that permanent life partnerships are not legally invisible and that constitutional values require protection where the relationship is sufficiently close and supportive. However, the protection it created is still limited and conditional. The surviving partner must prove the existence of a permanent life partnership and reciprocal support duties, and the ruling remains tied to the specific statutory schemes before the Court. It does not create a general legal status for cohabitants. The result is that the law now protects some cohabitants in some contexts, but not all.

The issue of property sharing was also developed in Butters v Mncora 2012 (4) SA 1 (SCA), where the Supreme Court of Appeal confirmed that cohabiting partners can, in appropriate circumstances, establish a tacit universal partnership. The court held that a universal partnership need not be confined to purely commercial ventures and may arise where partners pool their contributions for their mutual benefit in a domestic setting. This case is important because it offers a private-law remedy for cohabitants who can prove shared intent and contribution, but it remains evidentially demanding and does not replace a general statutory regime.

Similarly, Paixão v Road Accident Fund 2012 (6) SA 377 (SCA) is relevant because it shows the courts’ willingness to extend common-law protection to a permanent life partner where the relationship included reciprocal support duties deserving legal recognition. Although the case concerned the dependant’s action, it demonstrates that the law can adapt where the facts reveal real dependency and commitment analogous to marriage. Even so, Paixão remains tied to the specific context of dependency claims and does not resolve the broader structural uncertainty faced by cohabitants.

Property disputes

Property disputes are among the most difficult issues in cohabitation cases. In marriage, property rights are governed by the matrimonial property regime selected by the parties or imposed by law. In cohabitation, by contrast, ownership generally follows title, so the name on the deed or account often determines legal entitlement. This rule may produce serious unfairness where one partner has contributed indirectly by maintaining the home, paying household expenses, or supporting the other partner’s education or business.

The doctrine of universal partnership is often invoked as a remedy. A universal partnership may be established where the parties intended to combine their efforts for their mutual benefit and each contributed something to the common enterprise, as confirmed in Butters v Mncora 2012 (4) SA 1 (SCA) para 18. This doctrine can assist where a cohabiting couple pooled resources and operated as a joint domestic and economic unit. Yet it remains an imperfect remedy because it was developed in a commercial context and does not always reflect the realities of intimate domestic arrangements.

The difficulty is that the law undervalues unpaid domestic labour. One partner may stay home to care for children, manage the household, and support the other partner’s career, while never acquiring title to any property. In a marriage, that contribution is more readily absorbed into the matrimonial property regime. In cohabitation, however, it may disappear from legal view unless the claimant can prove an express or implied agreement or a universal partnership. This leaves the economically weaker partner at a significant disadvantage.

A further challenge is evidential. Cohabiting couples rarely keep formal records of domestic contributions, and their arrangements are often based on trust rather than written instruments. When disputes arise, the claimant may find it difficult to prove the intention required for a partnership or contract. The result is a legal system that can protect cohabitants only when they are able to translate intimate life into documentary proof, which often does not match lived reality.

Maintenance and support

Maintenance is another major area of vulnerability. The common law does not impose a reciprocal duty of support between cohabitants in the same way that marriage does, and this means that one partner usually cannot claim post-separation or post-death support unless a separate legal basis exists. The Maintenance of Surviving Spouses Act 27 of 1990 was enacted to extend support beyond death for spouses, but its original wording did not cover unmarried partners.

That exclusion was directly addressed in Volks, where the Court refused to extend the Act to a permanent heterosexual life partner. The majority placed weight on the difference between a voluntary marriage relationship and a cohabitation relationship that could be entered into or ended without legal formality. Although that reasoning had doctrinal clarity, it also reflected an assumption that unmarried partners had simply chosen to remain outside the legal regime and therefore should bear the consequences.

Later developments cast doubt on that rigid distinction. In Bwanya, the Constitutional Court held that a permanent life partner in a reciprocal support relationship should not be excluded from maintenance protection merely because the couple was not married. The Court accepted that permanent partnerships could involve real dependence and vulnerability, particularly where one partner relied on the other for financial and domestic support. The decision thus recognised that maintenance law should respond to substantive need and relational reality, not only to formal status.

Even so, Bwanya is not a complete solution. It is confined to the statutory context before the Court and depends on proof that the relationship was permanent and involved reciprocal support duties. Many cohabitants may still fall outside the ruling, especially where evidence of permanence is disputed or the relationship was socially committed but legally undocumented. The law therefore remains piecemeal, and uncertainty continues to characterise maintenance claims by unmarried partners.

Inheritance issues

The inheritance position has been particularly harsh for surviving partners in cohabiting relationships. Before Bwanya, an unmarried partner who died intestate could leave the surviving partner with no automatic claim under the Intestate Succession Act 81 of 1987, because the Act was framed around spouses. This often produced severe hardship where the couple had lived together for years and the survivor was financially dependent on the deceased estate.⁵

The Constitutional Court in Bwanya corrected much of this injustice by holding that the exclusion of a permanent life partner from intestate succession was unconstitutional. The Court made it clear that a surviving partner in a permanent life partnership with reciprocal duties of support should, in appropriate circumstances, be treated as deserving statutory protection.⁶ This development is significant because it acknowledges that legal entitlement should not depend solely on marriage, particularly where exclusion would be inconsistent with equality and dignity.

However, the inheritance problem is not entirely resolved. First, the survivor must still prove the factual existence of a permanent life partnership and reciprocal support duties. Second, the ruling does not automatically solve all property disputes or succession conflicts arising from family opposition or multiple claimants. Third, where the deceased left a will, the surviving cohabitant may still be excluded unless the will or another legal basis provides a remedy. The law has therefore moved toward greater fairness, but it remains incomplete and case specific.

Comparative perspective

Comparative experience suggests that South Africa’s current position is underdeveloped. In jurisdictions that have enacted cohabitation legislation, partners in long-term domestic relationships may receive default protection after a period of cohabitation or upon proof of economic interdependence.⁵ Those models reduce litigation and allow parties to plan their affairs with greater certainty. They also recognise that family life is not limited to formal marriage.

South Africa has moved part of the way through constitutional adjudication, especially in Bwanya, but judicial development alone cannot create the level of certainty that legislation can provide. A legislative framework could define when cohabitation is legally relevant, what rights follow from it, and how parties may opt out by agreement. That would protect vulnerable partners without forcing all cohabitants into a marriage-like regime against their wishes. It would also better reflect the diversity of South African households.

Critical evaluation

The central defect in the current law is fragmentation. Cohabitants may obtain relief in some contexts, such as intestate succession after Bwanya, but remain unprotected in others, such as ordinary separation disputes or property division. This creates a patchwork system that depends heavily on the wording of a particular statute and the willingness of a court to interpret it constitutionally. Such uncertainty is costly, burdensome, and unfair to the weaker partner.

A second defect is under-protection of domestic labour. The law still tends to privilege formal title, express agreements, and registered interests over the everyday reality of shared life.^1,2 In many cohabiting relationships, one partner invests in the household in ways that are economically valuable but not easily measurable. If the relationship fails, that partner may be left with nothing despite years of contribution. This outcome sits uneasily with constitutional values of equality and dignity.

A third difficulty is evidential asymmetry. The partner with financial control is usually better placed to produce records and prove ownership, while the vulnerable partner may rely on oral understandings, conduct, or social expectations. The present law does not adequately address that imbalance. Even when constitutional remedies are available, they often arrive too late and require expensive litigation.

The strongest argument against reform is that cohabitation is a choice and should not be equated with marriage. That is true to an extent, but it is not a complete answer. Many cohabitants do not reject legal protection; rather, they fail to formalise their relationship because of poverty, ignorance, culture, or trust. The law should not use non-formality as a reason to deny all protection where the facts show permanence, support, and dependence. A more balanced approach would preserve autonomy while creating default rules for serious partnerships.

Conclusion

Cohabitation without marriage remains a legally vulnerable relationship form in South Africa. The current law provides only partial and inconsistent protection, leaving many partners exposed in relation to property, maintenance, and inheritance. Although Volks, Hassam, and especially Bwanya show a clear constitutional shift toward greater recognition of permanent life partnerships, the law still lacks a comprehensive framework that offers certainty and fairness across the full range of domestic disputes.

This article has argued that the present legal position is inadequate because it is fragmented, evidentially burdensome, and too dependent on post hoc litigation. While constitutional interpretation has corrected some obvious injustices, it has not replaced the need for legislation that expressly regulates cohabitation. South Africa should therefore adopt a coherent statutory regime that protects permanent life partnerships, permits written opt-out agreements, and provides clear default rules for maintenance, succession, and property disputes. That would better reflect constitutional values while respecting personal autonomy.

Endnote(S):

1. Cohabitation and Common Law Marriage in South Africa | LegalWise. Accessed 22 June 2026.
2. Cohabitation and Unmarried Couples’ Rights in South Africa (2026 Guide) | SD Law. Accessed 22 June 2026.
3. Cohabitation Relationships. Accessed 22 June 2026.
4. Cohabitation and Unmarried Couples’ Rights in South Africa (2026 Guide) | SD Law. Accessed 22 June 2026.
5. Living together and inheritance. | LegalWise. Accessed 21 June 2026.
6. Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51, paras 72–76.

Bibliography

Cases

• Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51.
• Butters v Mncora 2012 (4) SA 1 (SCA).
• Hassam v Jacobs NO and Others [2009] ZACC 19.
• Paixão v Road Accident Fund 2012 (6) SA 377 (SCA).
• Volks NO v Robinson and Others [2005] ZACC 2.

Legislation

• Constitution of the Republic of South Africa, 1996.
• Intestate Succession Act 81 of 1987.
• Maintenance of Surviving Spouses Act 27 of 1990.

Secondary sources

• Cohabitation and Common Law Marriage in South Africa | LegalWise.
• Cohabitation and Unmarried Couples’ Rights in South Africa (2026 Guide) | SD Law.
• Cohabitation Relationships.
• Living together and inheritance. | LegalWise.