Authored By: Kabelo Monareng
University of South Africa
When an unmarried relationship ends, partners are often surprised to find out that “common-law marriage” is a legal misconception, which means they lack the automatic protections provided by divorce laws. This lack of formal legal connection leads to significant confusion about how to divide property and rights. The prevailing legal view treats cohabiting partners as separate individuals which means property division is required to strictly reflect individual ownership allowing for equitable distribution claims through agreement, while parental rights remain legally intact. This article examines how to achieve equitable property and rights for each party during separation, while parental rights and child support obligations are shared equally to prioritize the children’s best interests.
To support this argument, the article will explore the interactions of:
- Property law
- Law of contract
- Family law
Property law provides clear options that unmarried couples can take, while contract law offers various contracts and agreements that unmarried couples can use to maintain an equitable share of rights and property between each other. These separations do not influence parental responsibilities, family law guarantees that obligations for child support are jointly maintained and cannot be dissolved even after the relationship between the unmarried couple has concluded.
Property law
Section 25 of the South African constitution ensures that no individual can lose their property except in terms of law of general application, and no law should allow for the random removal of property[1]. This indicates that the owner of the property will continue to hold ownership, and they cannot be forced to give up their property even if the partners shared the property for years. By property we refer to corporeal immovable and movable property, incorporeal commercial property and vested rights, public law property and limited real rights. This will leave one partner at a disadvantage because legally the property will be owned by one partner and can evict the other by correctly following The Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998’s eviction procedures. This can be handled differently if the couple holds joint ownership, with both names on the title deed, this means the property should be divided equally between them. In this case, one partner may choose to buy the other’s share, or they could opt to sell the property and divide the profits[2].
Law of contract
In law of contract, there are legal avenues available for unmarried partners to protect their property and to achieve equitable property rights after separation. They can utilize a cohabitation agreement for this purpose. A cohabitation agreement details the rights and responsibilities of each partner, ensuring clarity and protection in the event of separation, death, or other major life occurrences[3]. This agreement clarifies each party’s responsibilities and expectations, helping to avoid future misunderstandings and disputes. It typically outlines the division of property acquired before and during the relationship in case of a breakup[4]. The agreement may also include financial support provisions, debt responsibilities, and if applicable, custody and child support arrangements[5]. Additionally, partners can address inheritance and estate planning matters.
Another option could be a Universal partnership, this is a long-term relationship between two individuals who typically live together, share resources, and work towards a shared goal. It is a viable choice for those who prefer not to engage in formal marriage but want to safeguard their shared property or business pursuits as life partners[6].
Types of Universal Partnerships in South Africa
- Societas universorum bonorum, an agreement where parties contribute all current and future assets, liabilities, profits, and losses to the partnership[7].
- Societas universorum quae ex quaestu veniunt, an agreement where all assets, liabilities,profits, and losses from a business venture become partnership property[8].
Before entering the agreement, both parties must have legal capacity and agree on the contract terms. Formalities must be met, and there should be a genuine intention to establish binding obligations. Additionally, the contract must be lawful and free from prohibited clauses[9]. Through this agreement, both partners clearly understand their legal positions. Because they are aware of their choice prior separation, the agreement ensures an equitable distribution of property and rights in terms of their agreement.
Family law
Children’s Act 38 of 2005[10] specifies the rights related to a child’s care, contract, guardianship, and support. Both biological parents share the responsibility for financial support excluding the fact that they are not married. Since mothers get automatic full rights, the Act details the process for unmarried fathers to obtain full parental rights also. This Act is meant to give equitable rights to both the parents of the child even when they are not married.
Ways unmarried fathers can obtain parental rights and responsibilities after separation
A father automatically gains parental rights and responsibilities if he was with the child’s mother in a committed, long-term partnership at the time of the child’s birth. If not, the father can still secure these rights by agreeing to be named as the child’s father or by paying customary damages, demonstrating a genuine and sustained effort to participate in the child’s upbringing and making a good-faith effort to provide financial support over a reasonable duration[11]. If the biological mother contests the father’s assertion of these rights, he may need to seek formal recognition through the court system. Parents can establish a formal parenting plan through mutual agreement. This plan must be documented at a Family Advocate’s office or be formally recognized as a court order by the children’s Court or the High Court[12].This plan is to outline how parental rights and duties will be equitably shared.
Under Family law, it is only fair to protect the child’s best interests and to ensure the child benefit from both parents even when they are no longer together. On KLVC v SDI (20334/2014) [2014] ZASCA 222; [2015] 1 AII SA 532 (SCA) (12 December 2014)[13] the Supreme Court of Appeal ruled that an unmarried father has automatically obtained complete parental responsibilities and rights in accordance with Section 21(1)(b) of the children’s Act 38 of 2005, this case advocates the article’s examination to achieve equitable rights for each partner.
This article has examined how property can be equitably divided between unmarried partners under property law by holding a joint ownership. It examines law of contract, detailing various agreements such as cohabitation agreement and universal partnership that unmarried partners can make to ensure they receive their fair share of property and rights after their separation. Additionally, it incorporates family law to tackle preservation of parental rights and child support obligations for unmarried parents. This legal framework is designed to prioritize the child’s best interests. By examining the three distinct areas of law, which are property law, law of contract, and family law, the article provided a thorough overview of the strategies available to protect both financial contributions and family ties for couples who live together without marrying. It also shows that although cohabiting couple lack the automatic protections like marriages, effective legal planning can provide reliable solutions for ensuring equity, fairness, and parental responsibilities.
REFERENCE(S):
Table of cases
KLVC v SDI [2014] ZASCA 222
Table of legislation
Children’s Act 38 of 2005(South Africa)
Constitution of the Republic of South Africa
Secondary sources
[1] Englesman Magabane Incorporated, ‘Joint Purchases and Splitting Assets: What Happens When Unmarried Couple Buy a House Together in South Africa?’ (5 February 2025) https://englesman.co.za/joint-purchases-and-splitting-assets-what-happens-when-unmarried-couples-buy-a-house-together-in-south-africa-2/ accessed 5 July 2026.
Burger Huyser Attorneys, ‘Cohabitation Agreements in South Africa and the Law’ (Burger Huyser Attorneys, 31 July 2024) https://www.burgerhuyserattorneys.co.za/cohabitation-agreements-in-south-africa-and-the-law/ accessed 6 July 2026.
Divorce Laws South Africa, ‘Sample Cohabitation Agreement’ (Divorce Laws South Africa) https://www.divorcelaws.co.za/sample-cohabitation-agreement.html accessed 6 July 2026.
Burger Huyser Attorneys, ‘Universal Partnerships in South Africa: Types & Requirements in law’ (Burger Huyser Attorneys) https://www.burgerhuyserattorneys.co.za/universal-partnerships-in-south-africa-types-requirements-in-law/ accessed 6 July 2026.
Abrahams & Gross Attorneys, ‘Unmarried fathers’ rights in South Africa: Care and contact explained’ (23 April 2025) https://www.abgross.co.za/unmarried-fathers-rights-south-africa/ accessed 9 July 2026.
[1] Constitution of the republic of South Africa, 1996, s 25(1).
[2] Englesman Magabane Incorporated, ‘Joint Purchases and Splitting Assets: What Happens When Unmarried Couple Buy a House Together in South Africa?’ (5 February 2025) https://englesman.co.za/joint-purchases-and-splitting-assets-what-happens-when-unmarried-couples-buy-a-house-together-in-south-africa-2/ accessed 5 July 2026.
[3] Burger Huyser Attorneys, ‘Cohabitation Agreements in South Africa and the Law’ (Burger Huyser Attorneys, 31 July 2024) https://www.burgerhuyserattorneys.co.za/cohabitation-agreements-in-south-africa-and-the-law/ accessed 6 July 2026.
[4] Divorce Laws South Africa, ‘Sample Cohabitation Agreement’ (Divorce Laws South Africa) https://www.divorcelaws.co.za/sample-cohabitation-agreement.html accessed 6 July 2026.
[5] Divorce Laws South Africa, ‘Sample Cohabitation Agreement’ (Divorce Laws South Africa) https://www.divorcelaws.co.za/sample-cohabitation-agreement.html accessed 6 July 2026.
[6] Burger Huyser Attorneys, ‘Universal Partnerships in South Africa: Types & Requirements in law’ (Burger Huyser Attorneys) https://www.burgerhuyserattorneys.co.za/universal-partnerships-in-south-africa-types-requirements-in-law/ accessed 6 July 2026.
[7] Ibid
[8] Ibid
[9] Ibid
[10] Children’s Act 38 of 2005(South Africa).
[11] Abrahams & Gross Attorneys, ‘Unmarried fathers’ rights in South Africa: Care and contact explained’ (23 April 2025) https://www.abgross.co.za/unmarried-fathers-rights-south-africa/ accessed 9 July 2026.
[12] Ibid
[13] KLVC v SDI [2014] ZASCA 222.
