Co-Habitation Agreements Alberton

A co-habitation agreement is a private contract between unmarried partners that records ownership of assets, allocates household contributions, plans for children, and sets out what happens on separation. South African law does not treat cohabitation as marriage, so the agreement does the practical work that statutory protections cannot. Constitutional Court jurisprudence has begun extending some protections to surviving permanent life partners — most relevantly Bwanya v Master of the High Court Cape Town (CCT 241/20, judgment handed down 31 December 2021), which declared section 1(1) of the Intestate Succession Act 81 of 1987 and section 2 of the Maintenance of Surviving Spouses Act 27 of 1990 unconstitutional insofar as they excluded surviving life partners — but a properly drafted and signed agreement remains the safest route to certainty on property, contributions, support, and children. Burger Huyser Attorneys’ Alberton branch at 28 Nelson Mandela Avenue, Randhart, Alberton, 1449 (011 439 3990) drafts, reviews, and where requested notarially executes co-habitation agreements tailored to each couple’s assets, contributions, and family circumstances.

What a Co-Habitation Agreement Is — and Is Not

A co-habitation agreement is a private contract between partners who live together but are not married. It does not create a marriage, civil union, or registered partnership, and South African law does not convert cohabitation into marriage regardless of duration. The agreement records ownership of current and future assets, allocates household contributions, plans for separation, and addresses maintenance and children. It is closely related to an antenuptial contract (ANC) but, unlike an ANC, it is not registered at the deeds office and is generally not notarially executed unless expressly requested. Without an agreement, the only fallback on separation is a universal-partnership claim — a difficult and expensive evidentiary exercise. “Co-habitation agreement,” “life-partnership agreement,” and “domestic-partnership agreement” are used roughly interchangeably across South African practice.

What a Co-Habitation Agreement Should Cover

Well-drafted agreements typically address ten interlocking topics. Burger Huyser’s Alberton branch works through this list with each couple at intake, then drafts bespoke clauses for whichever items the relationship actually involves.

1. Asset schedule — what each partner currently owns (bank accounts, vehicles, furniture, equities, crypto).
2. Acquisition ratios — how joint purchases will be split where parties contribute unequally.
3. Household contributions — bond or rent, utilities, insurance, school fees, debt servicing, and how the ratio is reviewed when income changes.
4. Improvements — what happens when one partner funds renovations or a deposit on the other partner’s property.
5. Maintenance — support during the relationship, on separation, or both; amount, duration, and triggers.
6. Children — a parenting plan aligned with the Children’s Act 38 of 2005 covering care, contact, and maintenance, capable of being made an order of court by consent.
7. Dispute resolution — a stepped ladder (good-faith discussion → mediation within 14 days → binding arbitration) that keeps cost and privacy down.
8. Privacy and safety — financial confidentiality, digital privacy, and a domestic-violence clause acknowledging immediate recourse under the Domestic Violence Act 116 of 1998.
9. Termination mechanics — written notice (commonly 30 days), updated financial schedules within 14 days of notice, and a separation plan.
10. Annual review — a mechanism to keep the agreement aligned with changed reality (income, new children, new assets).

Co-Habitation Agreement vs Antenuptial Contract — A Frequent Confusion

Both documents are signed before a notary in many cases, which causes regular confusion. The table below sorts out the practical differences.

Issue	Co-habitation Agreement	Antenuptial Contract (ANC)
Parties	Unmarried partners (whether or not intending to marry)	Engaged or intending-to-marry couples
Where executed	Drafted by attorney; notarially executed if requested	Must be executed before a notary and registered within a prescribed timeframe
Where filed	Nowhere (private contract)	Deeds office registration
Trigger	Cohabitation	Marriage
Effect on breakdown	Governs separation between unmarried partners	Governs matrimonial-property consequences on divorce or death
Cost benchmark	Notarial attestation of an already-drafted short agreement starts from around R1,199	Varies per file; notarial and deeds-registration fees apply

Burger Huyser Attorneys drafts both documents across its family-law practice — the co-habitation agreement sits naturally alongside the firm’s antenuptial-contract work, and both can be notarially executed in-house at the Alberton branch.

The Universal-Partnership Fallback When There Is No Agreement

If a couple separates without an agreement, the only realistic remedy is a universal-partnership claim. Our courts require four elements: an aim to make a profit, contribution by both parties, operation for the benefit of both, and a legitimate contract. The Supreme Court of Appeal has, in past matters, upheld substantial shares for partners in tacit universal partnerships over many years. The claim is fact-heavy, expensive to litigate, and uncertain in outcome. A well-drafted co-habitation agreement sets ownership and contribution ratios in advance and short-circuits that litigation route.

Cohabitation, Maintenance, and Inheritance under South African Law

There is no automatic duty of support between cohabitants — during the relationship or on separation — unless the parties contract for it in writing. That rule has been partially constitutionalised by the Constitutional Court: in Bwanya v Master of the High Court Cape Town (CCT 241/20), the Court declared section 2 of the Maintenance of Surviving Spouses Act 27 of 1990 and section 1(1) of the Intestate Succession Act 81 of 1987 constitutionally invalid insofar as they excluded surviving permanent life partners, with the declaration suspended to allow Parliament to cure the defect. Surviving permanent life partners now inherit under intestate succession and may claim under the surviving-spouses maintenance regime, subject to evidentiary proof of the partnership.

Other statutes touch cohabitants in narrower ways: the Domestic Violence Act 116 of 1998 explicitly applies to cohabitants; the Medical Schemes Act 131 of 1998 defines “dependant” to include a partner for medical-scheme purposes; and the Income Tax Act and Estate Duty Act treat cohabitants as “spouse” for tax purposes. Even with these extensions, a will and explicit beneficiary nominations remain essential — intestate succession still requires successful proof of partnership status, and many pension funds and insurance policies do not pick up the change automatically.

Children and Co-Habitation Agreements

Where minor children are involved, the agreement should include a parenting plan consistent with the Children’s Act 38 of 2005, covering care, contact, and maintenance. The law does not distinguish between married and unmarried parents on the maintenance obligation; both biological parents remain liable regardless of marital status. A parenting plan drafted alongside the agreement can be made an order of court by consent, without a separate custody application. Where the parties are not biologically linked to the children — including same-sex couples where the child is biologically neither party’s — the agreement should record the intended parental role and any planned formalities (adoption, surrogacy agreement) clearly.

Where the Contract Hits the Map — Signing, Notarisation, and Enforcement

A co-habitation agreement is a private contract: no court filing and no deeds-office filing is required. A privately signed agreement is enforceable — South African courts give effect to a clear contract that is not contrary to public policy. Notarial execution adds evidentiary weight and reduces the risk of authenticity disputes if enforcement is later needed; it is recommended, not mandatory.

The practical venue for signing, witnessing, and any notarial execution is the law firm’s office. For Alberton-based couples, that means the firm’s Alberton branch at 28 Nelson Mandela Avenue, Randhart, where the same notary staff who complete notarial work can execute the document without routing the file to a separate practice. The firm is institutionally connected across Gauteng through the Pretoria Attorneys Association, the Gauteng Family Law Forum, and the Johannesburg Attorneys Association, keeping family-law and notarial advice current with regional practice.

Should enforcement later become necessary, proceedings are issued in the Gauteng Division of the High Court at its Johannesburg seat — the serving division for Alberton-based matters — not at the Alberton Magistrate’s Court. A co-habitation agreement also pairs naturally with updated wills, named beneficiaries on policies and retirement funds, and confirmation of title-deed co-ownership where a shared home is in both names.

What to Look for When Choosing a Co-Habitation Agreement Attorney

Five attributes predict a well-drafted, enforceable agreement.

• Family-law experience — co-habitation agreements sit inside family law, alongside divorce, custody, and antenuptial-contract work, and the drafting skill overlaps directly with ANC work.
• In-house notarial capability — where parties want notarial execution (recommended for evidentiary weight), the firm should be able to handle it in-house rather than routing the file to a separate notary practice.
• Plain-English drafting with legal muscle underneath — the agreement is read by the parties but enforced by a court; the drafter should be able to do both.
• Transparent cost conversation — fees quoted per file after an intake conversation, not a loose pre-engagement estimate; cost benchmarks exist (notarial attestation on an already-drafted short agreement starts from around R1,199) and a credible attorney will reference them.
• Local Alberton presence — signing, witnessing, and follow-up amendments are easier in person at the same branch rather than via remote file transfer.

Burger Huyser Attorneys’ Alberton branch meets that profile: family-law work sits at the core of the firm, with notarial and conveyancing capability in-house and the multi-specialist depth of an established Gauteng practice behind it. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”).

Practical Considerations: Cost, Timeline, What to Bring

Cost. Fees depend on length, complexity, whether the parties are in full agreement, and whether notarial execution is requested. Notarial attestation of an already-drafted short agreement starts at around R1,199; full attorney-drafted agreements for couples with property, children, or business interests are quoted per file after the intake conversation at the Alberton branch.

Timeline. Straightforward, co-operative couples typically sign within two to four weeks of intake. Couples with significant assets, business interests, or unresolved disagreements take longer; mediation and tailored drafting add days but not months.

What to bring. Both partners’ ID documents; a list of current assets (movable and immovable) including registration details; the contribution ratio for any joint property or accounts; details of any children from the relationship; and (where relevant) a brief indication of intended maintenance terms.

Frequently Asked Questions

Is a co-habitation agreement the same as marriage?

No. It is a private contract that records the arrangements an unmarried couple chooses to make for property, contributions, support, children, and separation. Marriage comes with statutory consequences (matrimonial-property regime, automatic duty of support, the divorce process); a co-habitation agreement creates the consequences the parties agree to. South African law does not recognise common-law marriage — length of cohabitation does not convert the relationship into a marriage or civil union, regardless of duration.

Do we need a notary to sign a co-habitation agreement?

Not by law, but recommended. Notarial execution strengthens the evidentiary weight of the signatures and reduces the risk of authenticity disputes at later enforcement. Burger Huyser Attorneys’ Alberton branch drafts agreements and arranges notarial execution in-house where clients request it, rather than routing the file to a separate notary.

How much does a co-habitation agreement cost in Alberton?

Fees depend on complexity and on whether the agreement is drafted from scratch or whether an already-drafted document is reviewed and notarised. A general benchmark from the SA notarial market is that notarial attestation of an already-drafted short agreement starts from around R1,199; full attorney-drafted agreements for couples with property, children, business interests, or unresolved disagreements are quoted on a per-file basis after the initial Alberton-branch consultation. Burger Huyser quotes transparently per file once the intake conversation is complete.

What happens to our property if we separate without an agreement?

Without an agreement, the only remedy is a universal-partnership claim — a litigation route where the partner claiming a share must prove both parties contributed to a profit-making enterprise for their mutual benefit, with a difficult evidentiary bar. Property co-owned in both names is divided according to shareholding on separation. Property registered in only one partner’s name belongs to that partner, and the non-owner has no claim except via unjustified enrichment, which again must be litigated.

Do cohabitants have maintenance rights on separation?

No automatic right, unlike divorce. A co-habitation agreement can contract for maintenance on separation, but without one, neither party has an enforceable duty to support the other after the relationship ends. Unjustified enrichment may allow recovery of specific contributions made during the relationship but does not impose ongoing support.

Where is the Burger Huyser Alberton branch, and what are the hours?

28 Nelson Mandela Avenue, Randhart, Alberton, 1449. Telephone 011 439 3990, mobile and after-hours line 061 515 4699. Open Monday to Friday, 7:30am to 4:30pm.

Does a co-habitation agreement cover children?

Yes. Co-habitation agreements commonly include a parenting plan alongside the financial and property terms, designed to fit within the Children’s Act 38 of 2005 framework. A parenting plan drafted with the agreement can later be made an order of court by consent, without needing a separate custody application.

Do cohabitants have any inheritance rights if a partner dies without a will?

Historically no — surviving cohabitants were excluded from the Intestate Succession Act 81 of 1987. The Constitutional Court’s 2021 decision in Bwanya v Master of the High Court Cape Town (CCT 241/20, judgment handed down 31 December 2021) declared that exclusion unconstitutional, and the position is now that surviving permanent life partners may inherit under intestate succession and may claim under the Maintenance of Surviving Spouses Act 27 of 1990, subject to evidentiary proof of the partnership. A will remains the cleanest, lowest-friction route to certainty on inheritance and is strongly recommended alongside any co-habitation agreement.