Common Law Husband And Wife

There is no such thing!

It is rather simple. There is no such thing as common law Husband and Wife in South Africa.There still seems to be a misconception that parties who live together (cohabitants) have legal rights and duties towards one another. This is not the case. Cohabitation is not recognised by law as a marriage, and thus the rights and duties that apply to a marriage do not apply.The draft Domestic Partnerships Bill that was published in January 2008 will assist couples that choose to cohabit rather than marry but until the bill is passed, I would advise cohabitants to enter into a cohabitation agreement.A cohabitation agreement is a normal contractual agreement between parties and the ordinary rules of the law of contract apply. The parties can include any provision in their agreement provided it is not illegal, against the morals of society or contrary to public policy. The agreement can regulate their obligations towards one another during the relationship and on termination of the relationship. It can include clauses such as payment of maintenance and division of assets.Parties who cohabit and fail to draw up a cohabitation agreement will have no legal protection. However, our courts have assisted couples who have proved the existence of a universal partnership.

To prove a universal partnership certain requirements, must be satisfied:

  • both parties must have contributed to the venture(partnership) through their labour, capital or skill;
  • the aim of the partnership must be to make a profit;
  • the partnership must operate for the benefit of both parties; and
  • the contract between the parties must be legitimate.


Interestingly cohabitation is recognised under certain legislation, namely;

  • the Domestic Violence Act;
  • The Medical Schemes Act 131 of 1998 defines a dependant to include a ‘partner’;
  • Either partner in a cohabitation relationship can be the beneficiary in a life-insurance policy;
  • The law does not distinguish between married and unmarried parents regarding their obligation to maintain children;
  • A surviving domestic partner may claim for compensation if his/her partner died as a result of injuries received during the course of employment, if at the time of death, they were living as ‘husband and wife’.


What is important to remember is that parties who cohabit have no automatic legal right to inherit from the other and no right to spousal maintenance on death unless provided for in a will.