- Unmarried couples in South Africa do not enjoy automatic legal protection, leaving cohabiting partners exposed when relationships break down.
- Without a life partnership agreement, disputes over property, bond repayments and financial contributions can quickly escalate into costly and emotionally draining litigation.
- A properly drafted and notarised life partnership agreement creates legal certainty, protects individual and shared assets, and provides clear exit terms in the event of separation or death.
Almost unheard of in South Africa just a few years ago, life partnership or cohabitation agreements are fast gaining popularity among unmarried couples. I am seeing this shift firsthand in my practice, and it reflects a growing awareness that love alone does not create legal protection.
South African law does not automatically afford the rights of married couples to cohabiting couples. I repeatedly explain to clients that, unless they are married or in a recognised civil union, they do not enjoy the same statutory safeguards.
The long-awaited Domestic Partnership Bill, first drafted in 2008, is still in draft form, which is why I advise cohabiting couples to enter into a written, legally enforceable contract.
A life partnership agreement outlines the responsibilities, rights and expectations of each person by formalising their commitment and protecting their individual and shared interests. I always stress that it will save a lot of money and heartache down the line if the relationship comes to an end.
The cost of suing after the fact
One of the cases I am currently handling involves the breakdown of a relationship between a medical professional and her former boyfriend. They dated for years before buying a property in both their names, each paying half of the monthly bond repayments and verbally agreeing to split the upkeep and other costs. Then the relationship soured, and he moved out. He continued paying his half of the bond instalments until she met someone new, at which point he stopped paying.
Here is where it really gets messy. He wants and is legally entitled to 50 percent of the proceeds from the sale of the house. Despite being jointly and severally liable, she is concerned about losing her good credit rating, whereas he does not care, so she is covering the full bond instalments. Yes, she can sue him after the fact, but it is going to cost her R70 000 or more.
I often tell clients that litigation after separation is reactive and expensive. By the time parties reach court, emotions are high and legal costs escalate quickly.
Cohabiting cases are rising
I am handling an average of two splits a month, up from almost zero base just a couple of years ago. Some involve registered homeowners whose partners, while they lived together, contributed financially towards maintenance, renovations and household expenses. But after the relationship ended, their former partners refused to move out. Some stop all payments, while others insist that they are entitled to a share of the property or compensation for their financial contributions and emotional attachment to the property during the relationship.
I consistently warn that verbal agreements and emotional investments carry very little weight in the courts. We then have to rely on common law principles and precedent, which can take years of expensive litigation and mediation to resolve the matter.
For a life partnership agreement to be legally enforceable, I ensure that it contains the identities of both parties, asset and liability schedules, details of property ownership, joint purchases, banking, maintenance and other expenses, debt protection, estate planning, an exit strategy and dispute resolution clauses. In this way, each party has legal protection, financial security, peace of mind in case of separation, death or disputes, and recognition in terms of administrative and legal processes.
Do not forget to include the pets
Pets are a very emotional issue, and I have seen disputes over animals become as contentious as property disputes. Life partnership agreements do not automatically provide for them. Unless explicitly stated in the agreement, pets are treated as personal assets and accordingly belong to the registered owner.
Get it notarised
I always recommend getting a life partnership agreement notarised because it significantly strengthens its legal standing and enforceability, which is important for a number of reasons. The Department of Home Affairs often requires a notarised life partnership agreement for visas because it demonstrates the genuine nature of the relationship. It can also be vital for proving cohabitation when registering a partner on medical aid.
It also provides formal authentication and proof of the agreement’s validity, making it more readily accepted and respected by legal and administrative bodies in South Africa. In addition, it provides international recognition for same sex couples or couples moving to countries where civil unions are not fully recognised. In instances like these, a notarised life partnership agreement can serve as crucial evidence of a committed relationship in international contexts.
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