The ownership of property by a co-habiting couple can be quite problematic. This is because living together (co-habitation) is not recognised as a legal relationship in the South African law and no legal status is conferred on couples who choose to live together without tying the knot. Unlike marriage, which is regulated by specific legislation, co-habitation does not offer such security and protection. Contrary to popular belief love, intent and the duration of a relationship does not constitute an arrangement similar to marriage.

An important distinction to make is the difference between co-ownership and a partnership when a co-habiting couple buys a property together. Co-ownership is a natural consequence of buying a property jointly and does not stem from a particular agreement, while a partnership is legally recognized entity, which was formed through entering into a formal partnership agreement. The main aim of a partnership is particularly to make a profit, and not necessarily so in co-ownership. Furthermore, in a co-ownership, a co-owner may sell their share of the property without the permission or consent of the other owner, while a partner in a partnership cannot act without the consent of the other partners.

Many couples find themselves in a position where the property is registered in one partner’s name, while the other partner devotes themselves financially towards the bond repayments and maintenance of the property during the existence of the relationship. Without a written co-habitation agreement, such financial contributions can be difficult to prove should the relationship come to an end. This situation might leave the partner who contributed to bond repayments, but who is not reflected on the title deed, in financial difficulty when seeking compensation for their contributions when the relationship comes to an end.

In McDonald v Young (292/10) 2011 ZA SCA 31, the parties were involved in a relationship and had co-habited for approximately seven years from June 1999 until May 2006. Young financially supported McDonald during their relationship. After the relationship ended, McDonald claimed a half share in the property owned by Young, as he claimed that a verbal partnership agreement was entered into between them. The court, found that he had failed to prove the existence of a partnership agreement, as no formal agreement was entered into. As an alternative claim, McDonald claimed maintenance from Young and the court held that no duty to support exists between unmarried co-habiting partners. The court stated that any obligations between co-habiting partners arise only by agreement and only to the extent as provided for in the agreement.

In conclusion, to avoid unnecessary conflict a co-habitation agreement is fundamental in a co-habitation.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

co-habitation agreements Marriage property