With cohabitation becoming increasingly common in South Africa, more couples are choosing to buy property together without being married. While this arrangement offers flexibility, it also comes with legal challenges, especially when the relationship ends. What happens to the house when unmarried couples go their separate ways? This article explores the legal implications of joint property ownership for unmarried couples in South Africa and offers advice on how to protect your rights.
Legal Context: Property Ownership in South Africa
In South African law, property ownership is determined by the title deed. When a couple buys a house together, their names are typically registered as co-owners. This means they legally share the property according to the ownership percentages specified in the deed. If no percentage is recorded, ownership is presumed to be equal.
However, issues can arise when the relationship ends, particularly if the couple did not clearly define their financial contributions or establish a cohabitation agreement.
Key Considerations for Unmarried Couples
- Title Deed and Ownership Shares
The title deed is the primary document that determines ownership. If both partners’ names are on the deed, they are considered joint owners, regardless of who contributed more financially. - Financial Contributions
Disputes often arise over unequal contributions toward the deposit, bond repayments, or maintenance costs. Without a written agreement, it can be challenging to prove financial input, especially in cases where one partner paid more than the other. - Legal Protections
Unlike married couples, cohabiting partners do not automatically benefit from legal protections such as community of property or accrual systems. This means that the division of assets is governed strictly by the ownership structure and any agreements between the parties. - Cohabitation Agreements
A cohabitation agreement is a legally binding contract that outlines how assets, including jointly owned property, will be divided if the relationship ends. It can also address issues like bond repayments, maintenance costs, and the process for selling the property.
Splitting Assets: What Happens When the Relationship Ends?
- Selling the Property
If both parties agree to sell the property, the proceeds are usually divided according to the ownership percentages in the title deed. However, disputes can arise if one partner refuses to sell or demands a larger share. - Buying Out the Other Partner
In some cases, one partner may wish to retain the property by buying out the other’s share. This requires a property valuation and legal assistance to transfer ownership. - Disputes and Legal Action
If the couple cannot agree on how to divide the property, they may need to seek legal intervention. South African courts can order the sale of the property and determine how the proceeds should be distributed.
Real-Life Case Study
In a landmark case, a Cape Town couple purchased a home together and contributed equally to the bond. However, after their breakup, one partner demanded a larger share, arguing that they had paid for renovations and maintenance. The court ruled in favor of the title deed ownership structure, emphasizing the importance of documenting contributions and agreements.
Protecting Your Interests
- Draft a Cohabitation Agreement
This agreement should detail each partner’s financial contributions, ownership percentages, and plans for the property in case of a breakup. - Keep Records of Financial Contributions
Maintain proof of payments for deposits, bond installments, renovations, and other expenses to substantiate claims if disputes arise. - Seek Legal Advice Early
Consult a legal professional when purchasing property together to ensure that your rights are protected.
Engelsman Magabane Incorporated: Your Partner in Property Disputes
Navigating joint property ownership can be complex, especially for unmarried couples. At Engelsman Magabane Incorporated, our experienced attorneys can assist with drafting cohabitation agreements, resolving disputes, and providing expert advice on property matters. Contact us today for tailored legal solutions.
Conclusion
While buying property together as an unmarried couple can be a smart financial move, it’s crucial to plan for all eventualities. A cohabitation agreement, clear ownership structure, and proper documentation can help prevent disputes and protect your investment. When in doubt, seek professional legal advice to safeguard your rights.
Good day
Im herman and afriekaans speaking please understand my english is not very good, my mom and my dad bought this house years a go then they had a hard time because the owner past a way and tax is not paid till today we had plenty trouble with ekurhuleni and lawyers telling we are responsible for tax and rates but its wrong the house was paid in full the owner past away and the cantract stipulated the owner is responsible for all tax and rates till the tittle deed is in our name so now ekurhuleni refuse to give us information they would sent us a water account maybe twice a year and a big amount of money they want so when i ask them i want information they refuse any information we just want to get this hous on our name me and my mom and the husbend she have we are all pensioners im in a wheelchair i can not stand up i realy wish some one can realy help us because we think ekurhuleni want to take this house to put us on the street and the day that happen the will be looking for something that wont go down good so if any one will be willing to take on ekurhuleni and help us it will be hugely appreciated
Good Day Herman,
We would advise that you speak to one of our dedicated lawyers on this matter as they would be able to answer your question more thoroughly.
Ok i thought i am talking to a lawyer, would you please let me talk to some one who could maybe help? Point me in the rite direction?
Please send us an email to admin@engelsman.co.za with your contact details so that we can get in touch.
Good Morning All
Can I please get an advise/help on how to remove my ex-wife’s name on the property. We were married out of community of property, without accrual and the marriage legally ended in February 2023. She never contributed not even a cent on the property because she never worked. I was the one paying for the bond ever since till to date. Now that we got divorced, I need to remove her name from the bond because is still under finance. I am still paying monthly installments on that house and I find it very unfair & unjust that I’m still indirectly working for her even though we not together anymore. I cant even stay in that property because she is fighting me, saying that is also her house. I gave her one of my properties with full furniture so that she can stay there with my kids, but still, she is not satisfied. And I went to rent a room, so that I can have a place to hide my head.
I applied for substitution at the bank, and I got approved, meaning the bank assessed my credit profile and find out that I do afford to handle the bond alone. The problem now is that, my ex-wife refuses to sign the addendum, she says she also wants her share on that house, but she knows very well that she never contributed. The sad part is that, even the divorce decree clearly states that if she says that she has a share on my assets, she must provide a proof that she also contributed. There is no settlement in our divorce decree because it was an uncontested divorce, hence it was without accrual.
The bank nominated the conveyancer to assist me with the transfer of ownership, the challenge is that, the ex-wife refuses to sign the documents. And because she refuses to sign, everything has stopped right there. I went to Legal Aid to ask for advise, they told me that this matter is very easy and simple, all what needs to be done is that, if the ex-wife refuses to sign the addendum, she must be compelled by law, sheriff must be appointed to sign on her behalf or the clerk of the high court must be appointed to override her. And sadly, this cant happen, this property conveyancer is telling me that I need to first pay +/- 40 000 rands in order for them to take the matter to high court. Now my question is, why must I pay that amount because I’m not the one refusing to sign, why did I get married out of community of property, why is the law of South Africa can’t protect me. I payed so much money to get married out of community of property with the exclusion of accrual, and here today that cannot work for me, what must I do, please advise.
Please point me towards the right channels where I can get helped, because there’s nothing that the bank can do if the ex-wife refuses to sign. This has to be handled in a legal way, and now the sad part is that the legal part misinterprets what is written in the final court order. What do I do in this case because this is draining me financially.
Please reply directly to my email, because I’m not familiar with this website, I just bumped onto it.
Regards
Mr T-Man