In recent years, we have seen an increase in couples choosing to live together without getting married. This choice often holds some misconceptions about the status of being a “common law spouse” in South Africa. Cohabiting couples must understand their legal standing to protect their rights and interests.

In this blog post, we will dispel some common-law myths and discuss the importance of cohabitation agreements.

The Myth of Common Law Marriage In South Africa

Contrary to popular belief, South African law does not recognise the concept of common law marriage. That means couples living together do not automatically qualify for the same legal protection as married couples. This lack of recognition has multiple, often negative implications, especially regarding property rights, financial support, and inheritance.

Cohabitation Agreements: A Must-Have For Unmarried Couples

To safeguard their interests, cohabiting couples are strongly advised to enter into a cohabitation agreement. Such an agreement outlines the division of property, financial arrangements, and other important aspects of the relationship.

It is a legally binding document that can protect both parties during separation or one partner’s passing. Creating a will and estate planning is also essential for cohabiting couples to ensure their wishes are respected.

Children and Parental Rights In Cohabiting Relationships

Parental rights and responsibilities remain the same regardless of the parent’s marital status. However, cohabiting can affect issues related to custody, access, and maintenance. Couples with children need to understand their rights and responsibilities under South African law to ensure the well-being of their children.

Breaking Up: The Legal Consequences For Cohabiting Couples

Dissolving a cohabiting relationship can present challenges, specifically when no cohabitation agreement is in place. Disputes over property and financial support can become contentious without clear legal guidance. A cohabitation agreement can significantly simplify the separation process, making it smoother and less stressful for both parties.


Cohabiting couples in South Africa face unique legal challenges due to the lack of recognition of common-law marriage. To protect their rights and interests, it is imperative to have a cohabitation agreement and to undertake proper estate planning. Understanding parental rights and responsibilities is also crucial for couples with children.

Seek guidance from Durban Law Offices on common law spouse myths in South Africa. Specialising in family law, we offer personalised services for cohabitation agreements and more, ensuring your rights are safeguarded.