The Citizen (Gauteng)

Cohabitati­on and property

BOND: CAN I LAY A CLAIM TO A HOUSE IF I CAN PROVE FINANCIAL CONTRIBUTI­ON?

- Eric Jordaan Eric Jordaan is a certified financial planner at Crue Invest

➜ In the absence of a written agreement, courts will have little to rely on when making determinat­ion.

AMoneyweb reader asked: 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?

Eric Jordaan answers:

Thank you for your question. Before answering, it is important to understand the legal status of cohabiting couples in South Africa.

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 SA.

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 samesex 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 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 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.

Legal changes are being considered

 ?? Picture: Shuttersto­ck ?? BACK-UP PLAN To fully protect themselves and preserve their rights, cohabiting couples should set up a cohabitati­on agreement, especially where there is fixed property involved.
Picture: Shuttersto­ck BACK-UP PLAN To fully protect themselves and preserve their rights, cohabiting couples should set up a cohabitati­on agreement, especially where there is fixed property involved.

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