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Cohabitation Agreements & Division of Property

When couples who are in a cohabitation relationship break up, one partner can apply for a court order to divide the property of the other partner in a fair manner. 

However, the partner who applies for the order has to prove that he or she had contributed - whether directly or indirectly - to the maintenance or increase in the other partner's property during the relationship.

Who does the property belong to?

In the absence of a cohabitation agreement, the private property acquired by the cohabitant, prior to their relationship, belongs to that cohabitant.

If there is no cohabitation agreement or proven universal partnership between the cohabitants, property bought during the relationship will belong to the purchaser thereof.

If the property is co-owned and registered in both cohabitants' names, they each have an equal, undivided share in the property, making them both legal owners thereof. They are also equally responsible for the expenses and losses associated with the property.

The mortgage bond will be in both their names, thus they will be jointly and severally liable for paying the bond. If one partner defaults on his or her share of the monthly bond instalments, the bond holder can either obtain a judgment against both cohabitants for the outstanding amount, or a court order can be obtained to force the sale of the property in order to cover the debt.

When the property is in both partners' names, neither can evict the other from the property. However, one cohabitant may approach the court to terminate the joint ownership and divide the property, in cases where the cohabitants can't agree.

Should I receive a greater share? 

If one partner can prove that he or she contributed towards any maintenance improvements of the property and should, therefore, receive a greater share, he or she may claim such payments in addition to their shares. 

Nothing can stop a cohabitant from selling their shares in the property to the other cohabitant or to a third party without the other cohabitant's permission, unless an agreement exists to state otherwise.

If, however, the property is registered in only one cohabitant's name, the other partner has no claim or right to the property, and may be evicted, although that cohabitant is entitled to reasonable notice. The cohabitant who owns the property can sell it without notifying the other.

Cohabitation Agreements & Renting

If cohabitants enter into a joint lease, they will be jointly liable for the rent. Each of the cohabitants are only liable for their share of the rent. If the lease agreement states that they are both jointly and severally liable, then they each may be liable for the whole amount of the rent.

If the relationship is terminated before the lease has expired, the parties will have a deadlock if they cannot decide who is to remain in the home. In this event, they both have a right to remain in the home.

Van Deventer and Van Deventer Incorporated

If you require legal assistance with regards to the legal aspects of a cohabitation relationship and cohabitation agreements, contact our attorneys at Van Deventer and Van Deventer Incorporated.