What is an Example of a Cohabitation Agreement in South Africa?

An example of a cohabitation agreement in South Africa is a written contract between two unmarried partners that records, in ordinary numbered clauses, who owns what at the start of the relationship, how day-to-day and large purchases will be funded during the relationship, how property will be divided on separation, how maintenance between the parties will be dealt with, how any children of the relationship will be supported, and what happens on the death of either partner. The agreement does not need to be registered with any government authority to be legally valid — South African common law recognises it as an ordinary contract — but it must be signed by both parties in the presence of a notary public to be properly authenticated, and notarisation is the practical safeguard against a later challenge to its authenticity or a dispute about whether both parties really understood and assented to its terms.

Why Couples Sign a Cohabitation Agreement in South Africa

South African common law does not give unmarried partners the same automatic rights as married couples. There is no automatic duty of mutual maintenance, no automatic right to share in property on separation, no automatic right of inheritance, and no automatic right to claim maintenance from a deceased partner’s estate. A cohabitation agreement fills that gap by recording what the parties have agreed, expressly, while the relationship is ongoing and not under pressure.

The most common triggers that prompt couples to sign one are:

• Buying property together
• Having children
• One partner financially supporting the other
• A long-term relationship that has not been formalised by marriage or civil union
• Immigration purposes — permanent life-partner visa applicants under section 18(b) of the Immigration Act 13 of 2002 often benefit from a documented cohabitation agreement as part of the evidence of a genuine relationship
• Estate planning where one partner wants the other to inherit

Burger Huyser Attorneys’ Family Law Department, led by Director Anna-Mi Nel, drafts these agreements as a routine instruction across the firm’s Gauteng branches.

What the Agreement Can and Cannot Do

Can do	Cannot do
Record ownership of assets brought into the relationship	Override the children’s court jurisdiction over a child’s best interests
Agree how joint and separate property will be dealt with	Override the Maintenance Act 99 of 1998 in respect of a child’s right to be maintained by both parents
Fix contributions to household expenses	Circumvent the duty to disclose material facts
Deal with what happens on separation	Contract out of the rights a third party (such as a creditor) has against one of the partners
Record an agreement on maintenance for any children of the relationship	—
Address what happens on death of either party (subject to the formal requirements of the Wills Act 7 of 1953 and the Intestate Succession Act 81 of 1987)	—
Record each party’s express consent to the arrangement	—

The Legal Framework: Common-Law Contract, Not a Statute

A cohabitation agreement is not governed by a single statute the way a marriage is governed by the Marriage Act 25 of 1961 or a civil union by the Civil Union Act 17 of 2006 — it is an ordinary common-law contract between two parties. The general law of contract applies: there must be consensus, capacity, lawful subject matter, and the terms must not be against public policy.

The agreement does not need to be lodged with the Department of Home Affairs, the Master of the High Court, or any court to be valid. A court asked to enforce the agreement on separation or death will read it like any other contract — meaning clear, specific clauses survive, and vague or contradictory clauses do not.

Notarisation falls under the Notaries Act 17 of 1998, which regulates who may practise as a notary and what a notarial certificate must contain. Because notaries are also accountable to the Legal Practice Council under the Legal Practice Act 28 of 2014, a notarial certificate carries the combined weight of statutory regulation and professional discipline.

An Example Agreement, Clause by Clause

Below is an annotated example of what a cohabitation agreement in South Africa typically looks like. The bracketed text in italics is drafting commentary — it would not appear in the final document, but it explains the reasoning behind each clause so the reader can adapt the example to their own situation.

1. Parties

“This agreement is entered into between [FULL NAME], identity number […], residing at [ADDRESS] (hereinafter ‘Party A’), and [FULL NAME], identity number […], residing at [ADDRESS] (hereinafter ‘Party B’), on [DATE].”

Drafting commentary: Full names, ID numbers, and residential addresses are recorded precisely. ID numbers are not legally required but make identification unambiguous if the agreement is later litigated; they also help with FICA compliance when the notary verifies identity.

2. Recordal and Purpose

“The parties have decided to live together in a permanent life-partnership at [ADDRESS] with effect from [DATE]. The parties wish to record in writing the arrangements between them in respect of their property, finances, maintenance, and children during the relationship and in the event of separation or death.”

Drafting commentary: The recordal establishes the factual context — that the parties are entering into a life-partnership and that the agreement is intended to govern their financial and personal arrangements during its course.

3. Separate Property (Exclusionary Clause)

“Each party shall retain as his or her exclusive property all assets owned by him or her at the date of signature of this agreement, including [list specific assets, e.g. ‘the immovable property at Erf […] Linden, owned by Party A and registered in his or her name under Title Deed T[…]’, ‘the motor vehicle […]’, ‘investments held with [institution] under account number […]’, and any inheritances or donations received by either party during the relationship from a third party source].”

Drafting commentary: This is the most important clause for protecting pre-relationship wealth. Without an express exclusion, the common-law rules on partnership-like joint contributions can muddy ownership on separation. Each asset is named specifically — generic phrases like “all my property” are harder to enforce.

4. Joint Property and Joint Contributions

“Any immovable property, motor vehicle, or other asset acquired in the joint names of the parties during the relationship shall be owned by them in equal shares unless otherwise recorded in writing. The parties shall contribute to the acquisition of joint assets in equal shares unless otherwise agreed in writing.”

Drafting commentary: Without an express clause, the default legal position on joint ownership is often unclear. The clause sets a clear default (50/50) and provides a mechanism (writing signed by both parties) to depart from it. The same structure can be used for a joint bank account.

5. Household Expenses and Day-to-Day Costs

“The parties shall contribute to the ordinary household expenses of their shared residence (including rates, levies, bond repayments, insurance, utilities, groceries, and household maintenance) in equal shares, unless a different proportion is recorded in writing. Each party shall remain personally responsible for his or her own personal expenses (clothing, medical aid premiums beyond any joint cover, vehicle licensing, personal insurance, and individual debt repayments).”

Drafting commentary: “Ordinary household expenses” is the operative phrase. The clause distinguishes between the joint household budget (shared) and personal expenses (individual) — a frequent source of disagreement on separation.

6. Maintenance Between the Parties

“The parties acknowledge that, as they are not married to each other, they are under no automatic common-law duty of mutual maintenance. Each party shall be responsible for his or her own maintenance from his or her own separate income and assets, and neither party shall have a claim for maintenance against the other during the relationship or on separation, save as may be agreed in writing between them from time to time.”

Drafting commentary: This clause is the contractual mirror of the common-law default. It does not oust a maintenance claim by a child (which is statutory under the Maintenance Act 99 of 1998) — but it makes the position clear between the partners themselves.

7. Children of the Relationship

“The parties acknowledge that any child born of or adopted into the relationship shall be maintained by both parents in accordance with their respective means, as required by the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005. The parties shall confer in good faith on all major decisions affecting the child’s upbringing, including education, religious upbringing, medical treatment, and permanent residence.”

Drafting commentary: This clause does not displace the children’s court or the maintenance court — it cannot. What it does is record the parents’ joint commitment and decision-making framework, which is helpful evidence if either party later seeks to vary a parenting or maintenance arrangement.

8. Separation

“Should the parties cease to live together permanently, the following arrangements shall apply: (a) each party shall be entitled to retain the separate property listed in clause 3; (b) any joint property shall be divided in accordance with clause 4; (c) any joint bank account shall be closed and the balance divided in accordance with the parties’ recorded contributions; (d) any asset acquired in one party’s name but wholly or substantially funded by the other party shall, on presentation of evidence of the contribution, be refunded to the contributing party in the proportion of the contribution; (e) neither party shall have a claim for maintenance against the other.”

Drafting commentary: This is the working-out clause — the part that gets read most often if the relationship later ends. The clearer the contribution trail during the relationship, the more enforceable the refund obligation on separation.

9. Death of a Party

“Each party acknowledges that he or she has executed a valid will, a copy of which is annexed hereto, which makes provision for the surviving partner in accordance with the parties’ agreement. Should either party die without a valid will, the intestate succession rules of the Intestate Succession Act 81 of 1987 shall apply, and neither party shall have a claim against the deceased’s estate beyond what those rules provide, unless the deceased has nominated the survivor as a beneficiary under a policy or in a testamentary document.”

Drafting commentary: A cohabitation agreement cannot create inheritance rights on its own — the Intestate Succession Act does not recognise a “life-partner” as an heir the way it recognises a surviving spouse. The agreement’s job here is to push both parties to make wills (and review beneficiary nominations on policies and retirement funds), so the position they intend is actually achieved through the proper legal channels.

10. Variation

“No variation of this agreement shall be binding unless reduced to writing and signed by both parties in the presence of a notary public.”

Drafting commentary: This clause forecloses informal “we’ll just split it differently” variations that later turn into disputes about what was actually agreed.

11. Governing Law and Jurisdiction

“This agreement shall be governed by the laws of the Republic of South Africa. The parties consent to the jurisdiction of the [e.g. Gauteng Division of the High Court, Johannesburg] for any dispute arising from this agreement.”

Drafting commentary: A forum-selection clause saves argument about where a future dispute must be heard.

12. Whole Agreement, Severability, and Signatures

“This agreement constitutes the whole of the agreement between the parties in respect of its subject matter. If any clause is found to be unenforceable, the remainder of the agreement shall remain in force.”

Drafting commentary: Boilerplate but important — it prevents a party from arguing later that some oral side-agreement overrides the written contract.

13. Authentication / Notarisation

“The parties acknowledge that they have signed this agreement in the presence of a notary public, who has verified the identity of each party and who has attached his or her notarial certificate and seal to this agreement.”

Drafting commentary: Notarisation is not legally required for the agreement to be valid, but it is the practical safeguard against a later challenge that the signature is not genuine, that the party did not understand what they were signing, or that the document is a forgery. A notarial certificate under the Notaries Act 17 of 1998 carries strong evidential weight.

Notarisation: Why It Matters Even Though It Is Not Legally Required

A notary public verifies the identity of each signatory, witnesses the signature, and attaches a notarial certificate and seal. The certificate creates a rebuttable presumption of authenticity — the party challenging the agreement has to lead positive evidence that the signature is not theirs or that the document is a forgery. Without notarisation, a party contesting the agreement on separation has more room to argue “I never signed that,” “I didn’t read it properly,” or “that document was prepared after we separated.”

Burger Huyser Attorneys has notaries on staff: Notary and Conveyancer Amanda le Roux at the Bedfordview branch and Notary Chanté Marais at the Pretoria (Menlyn) branch. Couples can sign at any branch where a notary is available, and the notarial certificate is recognised nationally because South African notaries are licensed under the Notaries Act 17 of 1998 and regulated by the Legal Practice Council under the Legal Practice Act 28 of 2014.

Common Mistakes to Avoid

• Verbal-only agreements — unwitnessed, unrecorded arrangements are very difficult to enforce on separation.
• Generic language — “we’ll split everything fairly” gives a court no enforceable standard; specific clauses (“50/50 of the net sale proceeds of Erf X”) do.
• Forgetting the will — a cohabitation agreement cannot create an inheritance right on its own; without a will, the surviving partner has no automatic claim against the deceased’s estate.
• Skipping notarisation — leaves the agreement open to authenticity challenges.
• Trying to contract out of children’s rights — clauses that purport to extinguish a parent’s statutory duty of maintenance or a child’s right to be maintained are unenforceable as against public policy.
• Using a one-size-fits-all template downloaded from the internet — a generic template rarely addresses the specific property, financial, and family situation of the parties using it; a tailored agreement is materially more enforceable.

What the Agreement Typically Costs and How Long It Takes

A drafted and notarised cohabitation agreement at a South African law firm typically takes one to two consultations and is finalised within two to four weeks, depending on how quickly the parties provide the required information. Cost depends on the complexity of the parties’ situation — a straightforward agreement between partners with no joint property and no children is at the simpler end; an agreement that has to deal with a jointly-owned property, multiple assets, children, or cross-border tax considerations is at the more complex end.

Burger Huyser quotes per matter after an initial consultation; the firm does not publish a fixed price for cohabitation agreements. Any third-party published price (such as the figures advertised by competitor sites) should be treated as that competitor’s own marketing price, not as a market benchmark.

How Burger Huyser Drafts a Cohabitation Agreement

1. Initial consultation at any of the firm’s branches (or remotely) to identify the parties’ situation, assets, and the issues to be addressed.
2. Drafting by the firm’s Family Law department, with input from the Notarial department where notarisation will be required.
3. A draft is sent to both parties for review; revisions are addressed.
4. A signing meeting at a branch with a notary, where the parties sign and the notary verifies identity and attaches the notarial certificate.
5. Each party receives a notarised original; a copy is held on the firm’s file.

Frequently Asked Questions

Is a cohabitation agreement legally binding in South Africa?

Yes — South African common law recognises a cohabitation agreement as an ordinary contract between the parties, enforceable in the same way as any other contract provided the general law-of-contract requirements (consensus, capacity, lawful subject, no public-policy bar) are met. The agreement does not need to be registered or filed anywhere to be valid.

Does a cohabitation agreement have to be notarised?

No — notarisation is not a legal requirement for the agreement to be valid. It is, however, strongly recommended: a notary verifies the identity of each party, witnesses the signature, and attaches a notarial certificate that carries strong evidential weight on any later challenge to the document’s authenticity.

Can a cohabitation agreement deal with property and finances?

Yes — the agreement typically records what property each party owns at the start, how jointly-acquired property will be owned, how household expenses will be funded, what happens to property on separation, and how each party’s separate assets are protected. The clearer and more specific the clauses, the more enforceable they are.

Can a cohabitation agreement deal with children?

It can record the parents’ joint commitment to maintain and care for any child of the relationship, and the decision-making framework between them. It cannot, however, override the children’s court jurisdiction, the Maintenance Act 99 of 1998, or the best-interests standard in the Children’s Act 38 of 2005 — those statutory protections apply regardless of what the agreement says.

Does a cohabitation agreement give the surviving partner any right to inherit?

No — a cohabitation agreement cannot create an inheritance right on its own. The Intestate Succession Act 81 of 1987 does not recognise a “life-partner” as an heir in the way it recognises a surviving spouse. The agreement’s practical role is to push both parties to execute wills and review beneficiary nominations on policies and retirement funds, so the position they intend is achieved through the proper legal channels.

Can we just use a free template from the internet?

A free template gives the structure but rarely addresses the specific property, financial, immigration, and family situation of the parties using it. Generic clauses (“we’ll split everything fairly,” “either party can terminate on notice”) are far harder to enforce than clauses that name specific assets, specific contribution percentages, and specific events. A tailored, notarised agreement drafted by an attorney who has taken instructions from both parties is materially more enforceable on separation or death.

Draft a cohabitation agreement that actually fits your situation. Burger Huyser Attorneys’ Family Law Department, led by Director Anna-Mi Nel, drafts, reviews, and notarises cohabitation agreements across Gauteng — Linden (head office, 011 888 0246), Bedfordview (011 201 7190, with notary services), Pretoria Menlyn (012 471 5700, with notary services), Sandton (011 253 3080), Roodepoort (011 668 0030), Centurion (012 644 4990), Alberton (011 439 3990), and Midrand (010 022 4082). The firm carries 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 – South Africa (Lawyers Monthly Legal Awards 2024) and Family Law Firm of the Year 2024 – South Africa (MEA Business Awards 2024). Book an initial consultation at your nearest branch — in person or remotely — and the firm will draft, walk both parties through the draft, and arrange notarial sign-off at a branch with a notary on staff, typically finalised within two to four weeks of first consultation.