Are you living together with a partner as if you are married, but in fact are not?

A domestic partnership (also sometimes called, cohabitation) is the term that is used to describe the relationship between two people of the same sex or opposite sex that are living together, in a permanent relationship, as if they are married, but that are not.[1]

When determining whether a domestic partnership exists, there are several factors to consider such as a reciprocal duty of support, permanence, duration of the relationship, dependence and the nature of the relationship.[2]

More and more people choose not to get married, for whatever reason. It may be to avoid stigmatisation or to avoid certain legal consequences from marriage. But, upon termination, what will happen to the assets that were bought by the partners during the existence of the partnership? What if one partner decided to give up employment in order to look after the children?

There is no legislation in South African law that directly regulates or protects domestic partnerships. Lately, Courts have held that non-commercial contributions should be considered when evaluating the party’s entitlements to the partnership’s assets.[3] A domestic partnership can be concluded tacitly, and then a Court will look at the nature and the duration of the partnership.[4] The test for the existence of such a partnership is “whether it is more probable than not that a tacit agreement had been reached”[5].[6] In practice this may be difficult to prove.

Some partners believe that when they live together for a certain period of time, the law will automatically afford protection to them. This is not the case.[7] One of the mechanisms available to domestic partners is where they choose to enter into a written universal partnership agreement. This will form a joint undertaking that will mean, amongst others, that if a partner wants to contract, they will need the consent of the other. Certain requirements must be met, such as proving that both partners made a contribution to the partnership and that the partnership must operate for the benefit of the joint partnership.

The Draft Domestic Partnership Bill[8] is a bill that will come into operation on a date fixed by the President by proclamation in the Gazette.[9] It will aim to regulate registered and unregistered domestic partnerships in South Africa. The default position of the property regime will be out of community of property.[10] In the definition section “contribution” includes “financial and non-financial contributions made directly or indirectly by the domestic partners”.[11]

Under the Draft Bill there will be certain requirements and restrictions that must be adhered to, to successfully register a domestic partnership. Both partners must be above the age of 18 years and only monogamous relationships may be registered. A partner can also not conclude a domestic partnership if he / she are already married under other relevant legislation, such as the Marriage Act 25 of 1961 or the Recognition of Customary Marriages Act 120 of 1998. At least one of the partners should also be citizens of South Africa.[12] Formal registration procedure will need to be followed. The effect of the registration is that a reciprocal duty of support arises between the partners of the domestic partnership.[13]

Section 10 of the Draft Bill places a limitation on the disposal of joint property. When a domestic partnership is registered, no partner may, without the written consent of the other, “sell, donate, mortgage, let, lease or otherwise dispose of joint property”.

Part V of the act regards the property division after termination of registered domestic partnerships. When a dispute arises either one of the partners may apply to the Court for an order so that the Court may decide about the division of property as it deems fit.[14] If the partnership is not registered and there is no agreement, one or both partners may also apply to Court for an order to the division of their joint or separate property.[15]

A promising new development is the maintenance after the termination of a registered domestic partnership. A Court is given the discretion to make an order that is just and equitable regarding the payment of maintenance.[16] When deciding, the Court must have regard to factors such as; the respective contributions of each partner (including financial and non-financial contributions), earning capacities, duration of the partnership and the standard of living.[17]


[1] TA Manthwa Recognition of domestic partnerships in South African law Masters of Laws University of South Africa (2015) 3

[2] Manthwa Domestic partnerships 16

[3] E Bonthuys “Developing the Common Law of Breach of Promise and Universal Partnerships: Rights to Property Sharing for All Cohabitants?” (2015) 132 SALJ 87

[4] Para 19

[5] Para 17-18

[6] Bonthuys (2015) SALJ 76

[7] Manthwa Domestic partnerships 18

[8] Domestic Partnership Bill (draft) in GG 30663 of 14-02-2008

[9] S36

[10] S7

[11] S1

[12] B Smith “The Interplay Between Registered and Unregistered Domestic Partnerships Under the Draft Domestic Partnerships Bill, 2008 and the Potential Role of the Putative Marriage Doctrine” (2011) 128 SALJ 560 564

[13] Smith (2011) SALJ 564

[14] S22

[15] S32

[16] S18(1)

[17] S18(2)

With due recognition to Anke Senekal (Final Year Law Student at the University of Stellenbosch)