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Cohabitation Agreement Template — South Africa
South Africa does NOT recognise common-law marriage. Even after the 2022 Bwanya Constitutional Court ruling extended intestate succession and surviving-spouse maintenance rights to permanent life partners, the safest protection for unmarried couples remains a written Cohabitation Agreement — backed by valid wills and life insurance. Our free template generates a comprehensive Cohabitation Agreement covering property regime, universal partnership election, mutual support (Bwanya basis), termination procedure and estate planning.
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COHABITATION AGREEMENT
Thandi Nkosi And Sipho Mthembu · Republic Of South Africa
PARTNER 1
Thandi Nkosi
22 Fredman Drive, Sandton 2196
SA ID 8003150000087
Occupation: Senior Software Engineer
SA ID 8003150000087
Occupation: Senior Software Engineer
PARTNER 2
Sipho Mthembu
22 Fredman Drive, Sandton 2196
SA ID 7807205009088
Occupation: Chartered Accountant (CA(SA))
SA ID 7807205009088
Occupation: Chartered Accountant (CA(SA))
Cohabitation since: 1 March 2022
Permanent life partnership (Bwanya)
WHEREAS the Partners have been cohabiting at 22 Fredman Drive, Sandton 2196 (rented from Growthpoint Properties Limited) since 1 March 2022 as permanent life partners with reciprocal duties of support; AND WHEREAS South African law does not recognise any concept of common-law marriage, but the Constitutional Court in Bwanya v Master of the High Court 2022 (CC) and the Judicial Matters Amendment Act 2024 (signed 3 April 2024) extend intestate succession and surviving-spouse maintenance rights to permanent life partners with reciprocal duties of support; AND WHEREAS the Partners wish to record their property, financial and termination arrangements in writing to provide certainty and to evidence the basis of their relationship for purposes of the Bwanya entitlement; NOW THEREFORE the Partners agree as follows:
1.
PROPERTY REGIME
The Partners adopt the following property regime: Complete separation of estates. Accordingly, each Partner retains complete ownership of all property acquired before and during the cohabitation; no joint estate is created.
Separate property of each Partner:
Partner 1 retains: her shares in Nkosi Software (Pty) Ltd, her Allan Gray Retirement Annuity, her individual savings accounts, her personal vehicle (2021 VW Polo, Reg DEF456GP). Partner 2 retains: his shares in Mthembu Holdings (Pty) Ltd, his Old Mutual Provident Fund, his individual investment accounts, his personal share in the joint Toyota Hilux.
Separate property of each Partner:
Partner 1 retains: her shares in Nkosi Software (Pty) Ltd, her Allan Gray Retirement Annuity, her individual savings accounts, her personal vehicle (2021 VW Polo, Reg DEF456GP). Partner 2 retains: his shares in Mthembu Holdings (Pty) Ltd, his Old Mutual Provident Fund, his individual investment accounts, his personal share in the joint Toyota Hilux.
2.
HOUSEHOLD EXPENSES AND RENT
Household expenses:
Rent, utilities, groceries, household maintenance and shared household items: split 50/50 from a joint household account. Each Partner contributes R15,000 per month into the joint household account by 5th of each month. Personal expenses (clothing, individual subscriptions, individual entertainment) are each Partner's own responsibility.
Rent / bond:
The lease for 22 Fredman Drive, Sandton 2196 is in Partner 1's name. Partner 2 contributes 50% of the monthly rent (R12,500) directly into the lease account by the 1st of each month.
Rent, utilities, groceries, household maintenance and shared household items: split 50/50 from a joint household account. Each Partner contributes R15,000 per month into the joint household account by 5th of each month. Personal expenses (clothing, individual subscriptions, individual entertainment) are each Partner's own responsibility.
Rent / bond:
The lease for 22 Fredman Drive, Sandton 2196 is in Partner 1's name. Partner 2 contributes 50% of the monthly rent (R12,500) directly into the lease account by the 1st of each month.
3.
TERMINATION OF COHABITATION
Either Partner may terminate the cohabitation by giving sixty (60) days written notice to the other Partner. On termination, the following arrangements apply:
On termination: each Partner retains their separate property as set out above. Joint property is divided as follows: (a) the joint Toyota Hilux is offered for purchase to either Partner at market value (Auto Trader average) within 30 days of termination; if neither Partner purchases, the vehicle is sold and proceeds split 50/50; (b) the joint household account is closed and the balance split 50/50; (c) household furniture: the Partner remaining at the residence retains the major furniture; the departing Partner removes personal items within 30 days of giving notice.
On termination: each Partner retains their separate property as set out above. Joint property is divided as follows: (a) the joint Toyota Hilux is offered for purchase to either Partner at market value (Auto Trader average) within 30 days of termination; if neither Partner purchases, the vehicle is sold and proceeds split 50/50; (b) the joint household account is closed and the balance split 50/50; (c) household furniture: the Partner remaining at the residence retains the major furniture; the departing Partner removes personal items within 30 days of giving notice.
4.
UNIVERSAL PARTNERSHIP ELECTION
The Partners expressly EXCLUDE the existence of any universal partnership (societas universorum quae ex quaestu veniunt or otherwise). No tacit or express partnership for business purposes is intended, and the Partners shall not be deemed business partners in respect of any commercial enterprise of either Partner.
5.
CONTRIBUTIONS OF EACH PARTNER
Each Partner contributes to the partnership in the following manner, which contributions the Partners recognise as having equal value for purposes of the relationship and any future universal partnership or Bwanya support claim:
Partner 1 contributes: 50% of household expenses, primary income earner during 2022-2024, primary household financial manager. Partner 2 contributes: 50% of household expenses, primary income earner from 2025, household administration and travel planning. Both contributions are recognised as having equal value to the partnership.
Partner 1 contributes: 50% of household expenses, primary income earner during 2022-2024, primary household financial manager. Partner 2 contributes: 50% of household expenses, primary income earner from 2025, household administration and travel planning. Both contributions are recognised as having equal value to the partnership.
6.
MUTUAL SUPPORT (BWANYA RECITAL)
The Partners hereby expressly undertake reciprocal duties of support to one another, in line with Bwanya v Master 2022 (CC). The support obligation includes: (a) financial support according to means (sharing of household expenses, contribution to each other's reasonable living costs when one Partner is unable to earn); (b) emotional and care support (companionship, mutual emotional welfare, care during illness or incapacity); (c) practical support (sharing of domestic labour, contribution to each other's reasonable career and study aspirations). This express undertaking confirms the basis on which the Partners qualify as "spouses" under the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990.
7.
ESTATE PLANNING — WILLS AND LIFE INSURANCE
Each Partner undertakes to: (a) execute a valid will naming the other Partner as primary beneficiary in respect of an agreed share of the estate; (b) review the will annually and after any material life event; (c) provide the other Partner with the location of the original will. Each Partner undertakes to maintain a life insurance policy with a sum insured of not less than ZAR 3 000 000, with the other Partner named as primary beneficiary. The cession lapses on termination of the cohabitation or upon a written amendment of this provision.
The Partners acknowledge that the Estate Duty Act 45 of 1955 spousal abatement of R3,500,000 may be available to surviving life partners under the post-Judicial-Matters-Amendment-Act-2024 statutory definitions.
The Partners acknowledge that the Estate Duty Act 45 of 1955 spousal abatement of R3,500,000 may be available to surviving life partners under the post-Judicial-Matters-Amendment-Act-2024 statutory definitions.
8.
INTESTATE SUCCESSION PROTECTION (BWANYA)
The Partners expressly record that their relationship is a permanent life partnership with reciprocal duties of support, qualifying each Partner as a "spouse" under the Intestate Succession Act 81 of 1987 and a "survivor" under the Maintenance of Surviving Spouses Act 27 of 1990 on the principles enunciated by the Constitutional Court in Bwanya v Master of the High Court 2022 (CC). This express recital reduces the evidentiary burden on the surviving Partner in any subsequent intestate-succession or surviving-spouse-maintenance claim.
9.
NO MARRIAGE AND GOVERNING LAW
Nothing in this Agreement constitutes a marriage between the Partners. South African law does not recognise any concept of common-law marriage. The Partners may at any future date choose to marry under the Marriage Act 25 of 1961 or the Civil Union Act 17 of 2006, in which case they should consult a notary regarding an antenuptial contract. This Agreement is governed by and construed in accordance with the laws of the Republic of South Africa.
10.
AMENDMENT AND ENTIRE AGREEMENT
This Cohabitation Agreement constitutes the entire agreement between the Partners regarding their property and financial arrangements. Amendment requires a written supplementary agreement signed by both Partners. Severability: if any provision is held invalid, the remaining provisions remain in force.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated.
PARTNER 1
Thandi Nkosi
SA ID 8003150000087
Partner
Date: ____________________
PARTNER 2
Sipho Mthembu
SA ID 7807205009088
Partner
Date: ____________________
Available as a print-ready PDF or an editable Microsoft Word (.docx) file.
What Is a Cohabitation Agreement?
A Cohabitation Agreement is a written contract between two people who live together as a couple but are not legally married. South African law does NOT recognise any concept of common-law marriage — living together for a long time, sharing a home, raising children together, or even being introduced as "husband and wife" creates NO automatic property or maintenance rights between the partners. Without a written agreement, on termination (separation or death) each partner is generally entitled to only what they can prove they specifically own — a position that often catastrophically disadvantages the financially weaker partner who contributed primarily as homemaker, parent or non-earning supporter.
The Constitutional Court has materially improved this position in recent years. In Volks v Robinson 2005 (CC), the court initially declined to extend maintenance rights to cohabitants. In Bwanya v Master of the High Court 2022 (CC), the court overturned this position and confirmed that a permanent life partner who has undertaken reciprocal duties of support is entitled to intestate succession as a "spouse" under the Intestate Succession Act 81 of 1987 and to surviving-spouse maintenance under the Maintenance of Surviving Spouses Act 27 of 1990. The Judicial Matters Amendment Act 2024 (signed 3 April 2024) updated the statutory definitions of "spouse", "marriage" and "survivor" to reflect Bwanya. Most recently, in PAL v RJT [2026] ZAWCHC 99, the Western Cape High Court for the first time awarded interim maintenance to an unmarried life partner during the lifetime of the partnership.
These judicial extensions are valuable but evidentiary — the surviving / claiming partner must prove the existence of a permanent life partnership with reciprocal duties of support, often against the wishes of the deceased's family or the other partner. A written Cohabitation Agreement is the single most effective evidence: it expressly records the parties' intent, their property arrangements, their mutual support obligations and (optionally) any universal partnership election under the Pezzutto v Dreyer 1992 (3) SA 379 (A) framework. The Domestic Partnerships Bill has been in draft since 2008 with no current enactment timeline — written agreement + will + life insurance remain the standard SA-market estate-planning trio for unmarried couples.
What's Covered in This Template
Eight sections covering every typical cohabitation element + expert-tier universal partnership, mutual support (Bwanya) and estate planning.
Partner 1 + Partner 2 Details
Full names, SA IDs, occupations, addresses.
Relationship Details
Cohabitation start date, shared residence, intent (permanent life partnership Bwanya basis vs trial), children together.
Property Regime
Complete separation (default) / specific joint property / joint post-cohabitation acquisitions.
Property Lists
Separate property of each partner + shared / joint property list.
Household Expense Split
Rent / bond, utilities, groceries split + joint household account framework.
Termination Procedure
Notice period (30 / 60 / 90 / 180 days) + property division on termination.
Universal Partnership Election (Expert)
Exclude (wealthier partner) / Include (non-earner) / Silent (Pezzutto test on facts).
Mutual Support — Bwanya Recital (Expert)
Express reciprocal-support undertaking cementing Bwanya entitlement to intestate succession + surviving-spouse maintenance.
Post-Termination Maintenance (Expert)
Optional rehabilitative maintenance on termination similar to spousal-maintenance clause.
Estate Planning + Life Insurance (Expert)
Express recital that each partner names the other in their will + life insurance cession + R3.5M Estate Duty spousal abatement.
Intestate Succession Protection (Expert)
Express recital cementing Bwanya life-partner status — reduces evidentiary burden on survivor.
How to Create a Cohabitation Agreement in South Africa
Five steps from drafting to a signed Cohabitation Agreement.
- 1
Pick the Property Regime
Complete separation is the SA market norm (protects each partner's assets). Shared specific property is appropriate for shared home or major joint purchases. Joint post-cohabitation is stronger protection for the non-earner partner who would otherwise have no claim.
- 2
Decide Universal Partnership Election
EXCLUDE if you are the wealthier partner (protects against tacit partnership claim). INCLUDE if you are the homemaker / non-earner (claims share of partnership growth). SILENT defers to court applying Pezzutto v Dreyer on the facts.
- 3
Include Mutual Support (Bwanya) Recital
For permanent life partners, express recital of reciprocal duties of support cements your Bwanya entitlement to intestate succession + surviving-spouse maintenance. Removes evidentiary burden on the survivor.
- 4
Set Termination Procedure
60-90 days written notice is the SA market norm. Detail property division on termination to avoid post-separation disputes.
- 5
Sign + Make Wills + Take Life Insurance
Both partners sign before two witnesses. THEN make valid wills naming each other as primary beneficiaries — wills override intestate succession and avoid family-of-origin claims. Life insurance ceded to the other partner protects against estate insolvency. This is the standard SA-market estate-planning trio for life partners.
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Legal Considerations
SA does NOT recognise common-law marriage — a written agreement is the only secure protection.
This template is for informational purposes only and does not constitute legal advice. Cohabitation arrangements involve sensitive financial, family and estate-planning matters — consult a qualified South African family law attorney for advice specific to your situation.
Reviewed for South African law
No Common-Law Marriage in South Africa
It is a persistent myth that living together for 5 years (or any period) creates a "common-law marriage" in South Africa. This is false. South African law recognises only: (a) civil marriage under the Marriage Act 25 of 1961; (b) customary marriage under the Recognition of Customary Marriages Act 120 of 1998; (c) civil union (same-sex or opposite-sex) under the Civil Union Act 17 of 2006; and (d) — by judicial extension since 2022 — permanent life partnership with reciprocal support (for intestate succession and surviving-spouse maintenance only). Cohabitation without one of these legal statuses creates NO automatic property, maintenance, or succession rights — except the Bwanya extensions referenced above.
Bwanya v Master of the High Court 2022 (CC) — The Game-Changer
In Bwanya v Master of the High Court, Cape Town 2022 (3) BCLR 297 (CC), the Constitutional Court overturned the earlier Volks v Robinson 2005 (CC) position and confirmed that a permanent life partner who has undertaken reciprocal duties of support (financial, emotional, care) is entitled to: (a) intestate succession as a "spouse" under the Intestate Succession Act 81 of 1987; (b) surviving-spouse maintenance under the Maintenance of Surviving Spouses Act 27 of 1990. The single criterion is reciprocal duties of support — given a wide meaning (not confined to financial support). The Judicial Matters Amendment Act 2024 (signed 3 April 2024 by President Ramaphosa) codified Bwanya by updating the statutory definitions of "spouse", "marriage" and "survivor". A written Cohabitation Agreement with express mutual-support recital materially strengthens the Bwanya claim by removing the evidentiary dispute about whether reciprocal support was undertaken.
Universal Partnership — Pezzutto v Dreyer Framework
The classical Roman-Dutch doctrine of universal partnership (societas universorum quae ex quaestu veniunt) provides an alternative route to financial recognition. The four-element test from Pezzutto v Dreyer 1992 (3) SA 379 (A) is: (a) each partner contributes something (money, labour, skill, property); (b) the partnership is for the joint benefit of the partners; (c) the partnership has a profit motive; (d) the contract is legitimate. In LM v RK [2022] ZAWCHC 1, the Western Cape High Court found a universal partnership in a cohabitation context. The cohabitation agreement can EXCLUDE universal partnership (preferred by the wealthier partner), INCLUDE it (preferred by the non-earner), or STAY SILENT (courts then apply Pezzutto on the facts). The election is a fundamental property-rights decision that should be made deliberately.
Frequently Asked Questions
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