Point of view: why living together without a will can lead to heartbreak

A social media story caught my eye recently, one that’s stayed with me. A woman had lived with her partner for nearly a decade. They shared a home, built a life, and raised children together. But when he passed away suddenly, she found herself locked out of the house they had called home. His family insisted she had no legal right to remain there. No marriage certificate. No cohabitation agreement. No will. Just memories, and now, a legal void.

It’s a painful reminder that in South Africa, love and shared life don’t automatically translate into legal protection. As Shaka Zwane, head of insurance and fiduciary at Standard Bank, puts it: “Living together before marriage has become common in South Africa for several reasons. Sometimes it’s due to economic circumstances, and pooling resources might make financial sense. Other couples believe it’s wise to get to know each other’s habits before committing to marriage.”

According to the 2022 Census Survey Report, about 8 in every 100 couples live together before marriage. Some buy property jointly, others move into one partner’s home. But regardless of the arrangement, Zwane warns that things can get complicated if one partner dies, especially without a valid will. He says that, unlike married couples, cohabiting partners are not automatically protected by laws such as the Maintenance of Surviving Spouses Act. Many people assume that the longer they’ve lived together, the more likely the law will recognise them as a ‘surviving spouse.’ But that’s a difficult and uncertain legal route.

Zwane says there has been progress. The 2021 Constitutional Court ruling in Bwanya v Master of the High Court recognised that partners in permanent life partnerships with a reciprocal duty of support can inherit and claim maintenance. This led to legislative changes through the Judicial Matters Amendment Act 15 of 2023, which now allows both same-sex and opposite-sex partners to claim, provided they can prove that a duty of support existed.

Still, Zwane cautions that these rights are not automatic. He says the process still requires legal action to prove the reciprocal duty of support. The best decision couples can make is to document their wishes in a Last Will and Testament and to sign a cohabitation agreement. According to Zwane, that agreement should clearly outline each partner’s responsibilities and rights to shared assets, and it should align with the provisions in the will. Without these documents, conflicts can escalate, leading to financial strain and emotional distress.

The woman in that social media post had no legal documents to back her up. She was forced to leave the home she helped build. Her story isn’t rare; it’s a reality for many South Africans who believe that love and time together will be enough. But the law doesn’t work on sentiment. It works on paper.

So if you’re living with your partner, no matter how committed you are, don’t leave your future to chance. Draft a will. Sign a cohabitation agreement. Make your intentions clear. Because when the worst happens, you shouldn’t have to fight for the life you built together.

* Maleke is the editor of Personal Finance.

PERSONAL FINANCE