I have a question regarding this article: Your rights as a cohabiting partner. It says, “Many couples find themselves in a position where the property is registered in one partner’s name while the other partner contributes financially towards the bond repayments and the home maintenance. In the absence of a written cohabitation agreement, such financial contributions can be difficult to prove if the relationship terminates, and can severely prejudice the partner leaving them with no claim to the property.”
What if one can prove financial contribution?
Thank you for your question. Before answering, it is important to understand the legal status of cohabiting couples in South Africa. Unfortunately, there is a common misperception that common-law marriages are recognised by our law and that cohabiting partners have legal status. The truth, however, is that there is no such thing as a common-law spouse or common-law marriage in this country. Cohabitation is not a recognised legal relationship and confers no legal status. Regardless of how long a couple has been living together or whether they have children together, their relationship has no legal standing in South African law, unless they can prove what is referred to as a ‘ universal partnership’.
The fact that partners living together have no legal duties towards each other and no reciprocal duty of support can leave couples financially exposed in the event of death or dissolution of the relationship. Since the legalisation of same-sex marriages in 2005, the court has made it clear that marriage is available to anyone who wants it, and if a couple chooses not to marry, they are choosing to exclude themselves from the legal consequences of marriage.
Having said that, some areas of our law are applicable to cohabiting couples, such as the Domestic Violence Act. Most medical schemes recognise a cohabiting partner as a financial dependant and will permit them to be added to the main member’s membership. Cohabiting partners can nominate each other as beneficiaries on their respective life policies, and a domestic partner may receive pension fund benefits as a nominee if they qualify as a dependant under the retirement fund rules. Most importantly, as both biological parents are responsible for the maintenance of their children, both partners have obligations in terms of the Maintenance Act to provide for their children.
With more and more couples choosing to live together rather than get married, legal changes are being considered to allow unmarried couples to establish legal partnership rights. In this regard, the Domestic Partnership Bill was proposed to Parliament in 2008 although it is yet to become law. In terms of this bill, couples will be able to register their relationship as a domestic partnership and in doing so will create similar rights and responsibilities as a marriage union. However, until this legislation is adopted, cohabiting partners have very few rights and should take appropriate steps to protect themselves financially, especially when it comes to property ownership.
As your question highlights, ownership of property when it comes to cohabiting relationships can be particularly tricky, especially if the relationship comes to an end. If you’re living together in a long-term relationship, everything that you buy essentially belongs to you. If your home is registered in your partner’s name, keep in mind that they have the right to evict you from the property if your relationship ends.
Many couples find themselves in a position where the property is registered in one partner’s name while the other partner contributes financially towards the bond repayments and the home maintenance. In the absence of a written cohabitation agreement, such financial contributions can be difficult to prove if the relationship terminates, and can severely prejudice the partner leaving them with no claim to the property.
Remember, in the absence of a cohabitation agreement, even if you can prove that you made contributions towards the bond or home maintenance, there is nothing in writing that speaks to any agreement that you and your partner had in respect of the property should the relationship come to an end.
In order to fully protect themselves and preserve their rights, cohabiting couples should set up a cohabitation agreement, especially where there is fixed property involved. If the property is registered in one partner’s name while the other partner is contributing towards the bond and home maintenance, it is important to keep a record of those payments and agree in writing how the contributing partner will be reimbursed should the relationship come to an end, either through separation or death. In the absence of a written agreement, the courts will have very little to rely on when making a determination.