By Anja van den Berg
Cohabiting before marriage – and even opting to live together instead of getting married at all – is becoming commonplace. Many cohabiting partners are looking to purchase property together, often as first-time buyers.
Gerhard van der Linde, managing director for Seeff Pretoria East, says that buying property with your spouse is relatively straightforward. A legal marriage entails a legalised relationship with consequences attached to it.
However, there is no legal relationship in cohabitation, and South African law confers no legal status.
Many people believe that if a couple cohabits for an extended period of time, they enjoy the same marital rights as legally married spouses. Cape Town attorney Simon Dippenaar, however, warns that this is not the case.
Dippenaar says that this misconception exists in many jurisdictions, but he underlines that in South Africa “there is no such thing as a common-law marriage”. This position is also applicable when it comes to owning property.
When you purchase property with someone other than your legal spouse, whether in a cohabiting relationship or otherwise, the property as a whole is coowned, and no particular part would be solely owned by any of the coowners, says Tiaan Pretorius, manager for Seeff Centurion.
While the consent of the other owner(s) is needed to sell, mortgage or lease the property, a joint owner can sell or let their undivided share in the property without the consent of the other joint owners.
Dippenaar suggests that cohabiting couples should seek legal advice to draw up a cohabitation agreement at the outset of the living arrangement. The contract will include details of the couple’s assets, property, and the financial contributions each partner makes to the joint home. Make sure it is valid and ratified by an appointed lawyer.
Partners needn’t be subtle about this critical discussion – they ought to view it in the same serious light as they would an antenuptial agreement
“There may be children of the union,” Dippenaar advises. “There could be shared debts. There may be insurance policies with both partners as beneficiaries, or a shared vehicle. A cohabitation agreement can help to mitigate conflict when it comes to deciding how these matters will be resolved.”
Drawing up a valid will is another vital consideration for a cohabiting couple, says Dippenaar.
Cohabiting partners have no automatic legal right to inherit from the other and no right to spousal maintenance on death.
Maurice Philips Wisenberg: https://www.divorcelaws.co.za/