CO-HABITATION AGREEMENTS

A cohabitation agreement in South Africa is a contract between unmarried life partners that sets out the ownership of property, division of expenses, and treatment of assets on separation or death — and, where the parties intend to apply for a Life Partner Visa, it must be drafted, signed, and attested by a Notary Public and allocated a Protocol Number under section 1(1)(xxxvi) read with section 11(6) of the Immigration Act 13 of 2002. South African law does not recognise “common-law marriage” — cohabitants have no automatic right to maintenance, property division, or intestate inheritance from each other unless they have concluded a valid agreement or can prove a universal partnership in court, although the Constitutional Court’s 2021 judgment in Bwanya v Master of the High Court, Cape Town and Others extended the Maintenance of Surviving Spouses Act to surviving opposite-sex life partners. Burger Huyser Attorneys drafts and notarises cohabitation agreements through its Family Law and Notarial teams, with admitted notaries on staff at the Bedfordview and Pretoria branches who can execute the agreement, allocate a Protocol Number, and coordinate will-drafting to plug the inheritance gap the agreement alone does not close.

What a Cohabitation Agreement Is and Why It Matters in South Africa

A cohabitation agreement is a contract between two people who live together or intend to live together in a permanent life partnership without being married or in a civil partnership — also referred to as a life partnership agreement. It records, in writing, how the parties intend to treat existing and future property, contributions to household expenses, joint assets on separation, debts, vehicles, furniture, jewellery, life insurance, pensions, pets, and what should happen on death.

There is no “common-law marriage” in South Africa. Cohabitation does not, by itself, confer the legal rights of marriage, regardless of how long the parties have lived together. Without a written agreement, an unmarried partner has no automatic right to:

• a share of the other partner’s property on separation;
• maintenance from the other partner;
• inherit under intestate succession;
• pension or medical-aid dependant benefits; or
• spousal tax treatment.

A cohabitation agreement is the only reliable way to set out the parties’ chosen arrangements on paper, and the only way to make those arrangements binding on outside institutions such as the Department of Home Affairs, medical schemes, and pension funds.

The Legal Recognition Cohabitants Do (and Don’t) Get

South African law does not treat unmarried partners as spouses by default, but a patchwork of statutes and one constitutional judgment do extend recognition in specific contexts:

Source	Recognition extended
Domestic Violence Act 116 of 1998	Extends protection-order remedies to cohabitants in a “domestic relationship.”
Medical Schemes Act 131 of 1998	Defines “dependant” to include a partner, allowing registration on a partner’s medical scheme subject to scheme rules.
Income Tax Act 58 of 1962 and Estate Duty Act 45 of 1955	Treat cohabitants as spouses for tax and estate-duty purposes in qualifying permanent same-sex or heterosexual relationships.
Maintenance of Surviving Spouses Act and Intestate Succession Act	Extended by the Constitutional Court’s 2021 judgment in Bwanya v Master of the High Court, Cape Town and Others (CCT 241/20) [2021] ZACC 51 to opposite-sex permanent life partners, granting surviving cohabitants a maintenance claim and an inheritance right against the deceased partner’s estate.
Common-law universal partnership	A court may recognise a joint enterprise with mutual contributions aimed at profit, but proof is difficult, costs are high, and the outcome is uncertain — not a reliable substitute for a written agreement.

Even with Bwanya, the gaps are real: same-sex surviving partners are not automatically captured by the Intestate Succession Act (the judgment addressed the opposite-sex exclusion), the burden of proving a “permanent life partnership” remains on the surviving partner, and a deceased partner’s will can still disinherit an unmarried partner in ways the agreement does not control. Drafting matching wills alongside the cohabitation agreement closes those gaps.

Why the Agreement Must Be Notarised — and What Happens If It Isn’t

A privately signed cohabitation agreement is a contract between the two parties only. It does not bind third parties such as the Department of Home Affairs, medical schemes, pension funds, or banks. For the agreement to bind third parties, it must be:

1. drafted by, or with the assistance of, a qualified legal practitioner;
2. signed by both parties in the presence of a Notary Public;
3. attested by the Notary, who verifies identity and signatures;
4. allocated a Protocol Number and filed in the Notary’s Protocol.

Without the Protocol Number, spousal-visa applications under section 11(6) of the Immigration Act will not be accepted by Home Affairs, medical-aid dependant registrations will not be recognised, and pension-fund nominee benefits cannot be claimed through the agreement. This is the practical reason why Burger Huyser Attorneys runs cohabitation files jointly through its Family Law and Notarial teams — drafting, attestation, and Protocol Number allocation are handled in a single instructed matter rather than split across providers.

Notarial fees for attesting a short, already-drafted agreement typically sit in the R1 199–R1 700 all-inclusive range on the open market. Full drafting tailored to the parties’ circumstances adds drafting time and is quoted on a per-file basis after the intake consultation.

What the Agreement Should Cover

A comprehensive cohabitation agreement addresses each of the following at a level of detail matched to the parties’ actual circumstances:

• Property owned before cohabitation — kept separate, with a clause spelling out that contributions to the mortgage or to renovations by the non-owning partner do not give them a claim over the property unless the agreement says so.
• Property bought during the relationship — joint ownership, sole ownership with contributions recorded, and what happens on sale or separation.
• Household bills and shared expenses — contribution ratios where one party earns more.
• Bank accounts, debts, and credit facilities — joint and several liability, who is the account holder, how debt is serviced on separation.
• Vehicles, furniture, jewellery, pets — pre-owned, jointly acquired, and gifts between the parties.
• Life insurance, pensions, medical aid — beneficiary nominations and how each partner accesses the other’s cover.
• Children — care, contact, maintenance, and parental responsibilities where the parties have children together or where one party brings children into the household.
• Death and estate planning — interaction with intestate succession, the importance of valid wills, and what the agreement does and does not cover on death.
• Review and amendment triggers — birth of children, illness, disability, redundancy, inheritance, material change in financial circumstances, and plans to marry or enter a civil partnership.

Cohabitation vs Antenuptial Contract vs Universal Partnership

Tool	When it’s used	Key effect
Cohabitation agreement	Couples living together (or about to) without marriage or civil partnership.	Records the parties’ chosen property and financial arrangements; notarially executed version binds third parties.
Antenuptial contract (ANC)	Couples planning to marry or enter a civil partnership, signed before the marriage under the Matrimonial Property Act 88 of 1984.	Sets the matrimonial property regime (Out of Community with or without Accrual); must be registered at the Deeds Office within three months under the Deeds Registry Act 47 of 1937.
Universal partnership	Claim raised in court on breakdown when no written agreement exists.	Court may recognise a joint enterprise and divide assets — but proof is hard, costs are high, and outcome is uncertain.

The Process at Burger Huyser: From First Consultation to Protocol Number

1. Intake consultation at any branch — identifying the parties’ circumstances (property, children, immigration angle, estate planning) and explaining the legal consequences.
2. Drafting — a tailored contract covering ownership, expenses, debts, separation scenarios, and the death-related clauses; the firm’s Notary and Family Law team work the file jointly.
3. Pre-signing review — both parties take the draft away for independent consideration. Independent legal advice on each side strengthens enforceability and is a common requirement for cross-border or significant-estate files.
4. Signing appointment before the Notary — both parties appear in person with original ID (SA citizens) or passport (foreign nationals); if either was previously married, a certified copy of the final decree of divorce is required.
5. Notarial attestation — the Notary verifies identity and signatures, signs the agreement, allocates a Protocol Number, and files one original in the Notary’s Protocol.
6. Cross-referral to Wills & Estates — because the agreement does not cure intestate succession risk, both parties are advised to have valid wills drafted through the firm’s deceased-estate administrators, led at the firm’s head office by Deceased Estate Administrator Lance Pearson.

Cohabitation and the Life Partner Visa

Section 11(6) of the Immigration Act 13 of 2002 requires a notarial cohabitation agreement as part of a Life Partner Visa application. The agreement must be supported by:

• proof of at least two years of exclusive cohabitation;
• proof of shared financial responsibilities;
• affidavits from both partners;
• supporting letters;
• valid IDs or passports;
• medical and radiological reports; and
• police clearance certificates.

The Life Partner Visa applies equally to same-sex and opposite-sex couples, and once issued it can be endorsed to allow work, study, or business conduct. After five years of proven cohabitation the foreign partner may apply for permanent residence under section 26(b) of the Immigration Act. Online templates or privately signed agreements do not satisfy Home Affairs — the agreement must be notarially executed and bear a Protocol Number.

Frequently Asked Questions

Is a cohabitation agreement legally binding in South Africa?

A cohabitation agreement is a contract enforceable by a court if it is properly executed. For it to bind third parties — including the Department of Home Affairs, medical schemes, and pension funds — it must be signed before a Notary Public and allocated a Protocol Number. A privately signed agreement between the two parties only is enforceable against them, but not against outside institutions.

Do cohabiting couples have the same rights as married couples?

No. South African law does not recognise “common-law marriage,” and cohabitation does not by itself confer spousal rights. Certain statutes (the Domestic Violence Act, the Medical Schemes Act, the Income Tax Act, and the Estate Duty Act) extend specific recognition, and the Constitutional Court’s 2021 Bwanya judgment extended the Maintenance of Surviving Spouses Act and the Intestate Succession Act to opposite-sex permanent life partners — but the only way to obtain the full legal framework of marriage is to marry or enter a civil partnership, or to record the parties’ intentions in a properly executed cohabitation agreement combined with valid wills.

How much does a cohabitation agreement cost?

Fees depend on whether the parties need a full drafting exercise or only notarial attestation of an existing draft. Notarial attestation on a short, already-agreed contract is the lower end of the market (competitor notarial-service pages have advertised an all-inclusive fee in the R1 199–R1 700 range at the time of writing), and full drafting tailored to the parties’ circumstances is higher and quoted per file. Burger Huyser Attorneys quotes per file after the initial intake consultation, with no referral to third parties — drafting and attestation are handled by the same admitted Notary on the firm’s staff.

Can same-sex couples enter into a cohabitation agreement?

Yes. Cohabitation agreements are available to both same-sex and opposite-sex couples, and the same requirements and legal consequences apply. The Life Partner Visa is similarly equal in application.

What happens if my partner dies and we only have a cohabitation agreement (no will)?

A cohabitation agreement does not by itself give a surviving partner the right to inherit. Without a valid will naming the partner as beneficiary, the deceased’s estate devolves under intestate succession — although since the 2021 Bwanya judgment a surviving opposite-sex life partner in a permanent relationship may now claim maintenance from the deceased’s estate under the Maintenance of Surviving Spouses Act, and may have an inheritance claim under the Intestate Succession Act. Drafting matching wills for both partners is the cleanest way to lock in the intended outcome.

Can I write my own cohabitation agreement from a template?

A template may serve as a starting reference, but for the agreement to be notarially executed, allocate a Protocol Number, and be recognised by Home Affairs, medical schemes, and pension funds it must be reviewed and adapted by a qualified legal practitioner and signed before a Notary Public. Online templates are typically basic and may miss key clauses — for example, the exclusion of a universal-partnership claim or the interaction with the parties’ existing wills.

Can a cohabitation agreement be changed after it’s signed?

Yes — by signing an amended agreement before a Notary Public. Review the agreement on the birth of children, serious illness or disability of either party, redundancy, a material change in financial circumstances, receipt of a large inheritance, or when the parties decide to marry or enter a civil partnership (at which point the cohabitation agreement is usually replaced by an antenuptial contract under the Matrimonial Property Act 88 of 1984).

If you and your partner are living together — or planning to — and want a cohabitation agreement that will hold up at the Department of Home Affairs, with your medical scheme, and against your pension fund, Burger Huyser Attorneys’ Family Law and Notarial teams can help. The firm’s admitted notaries at the Bedfordview branch (Natasha van Deventer and Amanda le Roux, 011 201 7190) and the Pretoria branch (Chanté Marais, 012 471 5700) draft and attest the agreement, allocate the Protocol Number, and can coordinate matching wills through the firm’s Wills & Estates department so the inheritance gap the agreement alone does not close is covered at the same time. Bring original ID (or passport, if either party is a foreign national) and, if either party has been previously married, a certified copy of the final decree of divorce. Burger Huyser Attorneys holds a 4.8/5 average across 250+ Google reviews (Trustindex verified, “Top Rated Law Firm in South Africa”) and was named Best Family Law Firm 2024 (Lawyers Monthly Legal Awards) and Family Law Firm of the Year 2024 (MEA Business Awards).