BY BONOLO OMPHILE SELELO
Africa-Press – Botswana. This is the first contribution by Bonolo Omphile Selelo, an attorney and founder of Botswana – Thinking Law. Her platform is dedicated to empowering Batswana through legal education delivered in simple, accessible language. Bonolo has gained recognition through her outreach efforts, seminars, and active presence on social media, where she covers topics including estate law, marriage, and inheritance.
According to the Collins English Dictionary, cohabitation is defined as:
“the state or condition of living together in a conjugal relationship without being married.”
Basically, it is when a couple who are in a romantic relationship live together and behave like a married couple—like husband and wife—without being formally married to one another, either through Civil or Customary law.
Not just a marriage thing
A commonly held misconception is that if a formal Civil or Customary marriage has not been entered into, then no legal rights and obligations—as would ordinarily flow from a marriage, such as the creation of a joint estate or the potential right to inherit—would be conferred upon an unmarried couple. That is not necessarily true.
The manner in which parties interact, behave, and contribute within a cohabitation setting may give rise to the creation of what is termed a Universal Partnership between them, from which certain claims may arise at the dissolution of their relationship, whether through separation or the death of one of them.
Elements that must be proven
Mere cohabitation does not automatically give rise to the formation of a Universal Partnership. There are certain elements that must be proven by a party who seeks to assert that such a partnership has been created and come into existence through cohabitation.
The elements that need to be proven for a Universal Partnership to have been created are as follows:
(i) Each of the parties must bring something into the partnership, whether it be money, labour or skill;
(ii) The endeavour should be carried on for the joint benefit of both parties;
(iii) The object was to make profit;
(iv) There is an agreement between the parties—written or oral—and if there is no written or oral agreement, then the actions of the parties are such that it is clear an agreement existed; and
(v) That the parties did derive benefit.
Botswana courts have recognised this
These principles are well recognised in Botswana and have been confirmed by the Court of Appeal in the decisions of CHINDU v KETSHABILE – CACGB 226/2020 and MBENGE v MBENGE [1996] 142 (CA).
For one to successfully establish that a Universal Partnership exists, all the elements must be present and proven. As always, each case is determined on its own facts and merits, and on an analysis of the evidence in respect of the elements required to be proved.
It’s not always a 50/50 split
Once a Universal Partnership is proved, it does not automatically result in each party being entitled to 50% of the assets (both immovable and movable), or being liable for 50% of the debts of the “joint estate.” It then becomes necessary to establish what percentage a party may be entitled to as a share, based on their respective contributions.
Therefore, if you and your partner are cohabiting but are not married, it may mean that when one of you dies, the other does not have any kind of “default” right to inherit. The surviving person would face the uphill battle of having to prove that a Universal Partnership was in existence in order to try and enforce a right to inherit. That would be both costly and time-consuming.
The safer route—write a will
It is far more preferable for people who are cohabiting and want their partner to inherit from them to ensure that they execute a valid last will and testament in which they specifically bequeath inheritance to that person.
For more detailed information and advice on this area, please join us at our Estate Planning Seminar on Saturday, 30 August 2025.
Source: Botswana Gazette
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