Cohabitation is a living arrangement where two individuals are in a romantic or sexual relationship but are not married. Unlike marriage or civil union, cohabitation does not provide the same rights and obligations to the partners. In South Africa, cohabitation is not recognised as a valid common-law marriage, regardless of how long the couple has lived together.
The lack of legal recognition for cohabitation leaves cohabitants without protection under laws like the Intestate Succession Act, 81 of 1987 or the Maintenance of Surviving Spouses Act, 27 of 1990. There is also no legal obligation for cohabitants to provide for each other. This means cohabitants are not on equal footing with married or civil union partners. However, some legislation recognises cohabitation as equivalent to marriage or civil union, including the Domestic Violence Act, 116 of 1998, Medical Schemes Act, 131 of 1998, Income Tax Act, 58 of 1962, and Estate Duty Act, 45 of 1955. Cohabitants can also name each other as beneficiaries in a life insurance policy.
Whether married or unmarried, parents have the same obligation to maintain their children, and custody decisions are based on the child's best interests. Cohabitants are advised to enter cohabitation contracts, similar to antenuptial contracts, which regulate the responsibilities of each partner and the consequences of terminating the relationship. The contents of a cohabitation contract depend on the parties' needs and can include any legal provisions that are not against public policy.
If there is no cohabitation contract or valid will, it is difficult for either party to claim maintenance during or after the termination of the relationship. However, a universal partnership may sometimes provide some legal protection if both parties have contributed to the partnership. In the event of one partner's death, cohabitants have no right to intestate succession, regardless of the length of the relationship. If a valid will does not name the surviving partner as a beneficiary, they must prove their contribution to the joint estate to receive any entitlement.