Nearly one in four South African couples is co-habiting. But those buying a home together could be setting themselves up for potential hardship. What happens with the home and its contents following a break up? According to Census 2011, 11% of South Africans over 20 years old are living together unmarried, while 36.7% are married and living together. The figure in the US is similar, with 11.6% of couples co-habiting without tying the marital knot.
While increasing gender equality in education, work and earnings, cost savings and changing attitudes towards moral codes of the past is driving up the practice of co-habiting globally, in South Africa the migrant labour laws of the apartheid era forced families apart and new co- habiting relationships were formed by urban males and females with other relationship ties in rural homes.
As discussed in the previous article, lobola places huge financial pressure on young people, many of whom are opting to rather live together than get married.
Statistics from the US show that after five years, 20% of married couples and 49% of co-habiting couples split up. After 10 years the figures increase to 33% for married couples and 62% for co- habiting couples.
Using the US as a norm, 51% of South African co-habiting couples will survive five years, while 38% will reach 10 years.
Under South African law, common law marriages are NOT recognised as a legal relationship. There is no law that regulates the rights of parties in a co-habitation relationship. Men and women living together do not have the legal protection afforded to married men and women, and now also afforded to same-sex marriages.
The bottom line is if you want to co-habit and own your home together you had better have the legal protection of a Partnership Agreement.
In addition, as difficult as it is to do with the bloom of love in the air, think about what is likely to happen if you split up as a co-habiting couple.
Let’s say you each own your home jointly and are jointly and severally liable (that means each 100% responsible in legal speak!) for the mortgage bond amount outstanding on the home and any other home ownership costs such as rates, taxes, electricity, water and levies.
Consider the following scenarios:
- One of the partners dies and their heirs (if they have a Will and, even worse, if they die without a valid Will) claim a half share of the home without the financial responsibility of half the mortgage outstanding and the monthly mortgage repayment and monthly running costs.
- One of the partners is incapacitated and cannot work or can only do menial part-time work, thereby being unable to contribute their 50% share of the home ownership and running costs.
- One of the partners loses their job and cannot contribute their share of the mortgage payments and home ownership costs while out of work.
- One of the partners has a previous marriage or co-habiting arrangement, and one or more of their children from this previous relationship arrive on your doorstep to live with you.
- One of the partners has a relative who is homeless or in need of care and ends up on your doorstep to live with you.
- One of the partners decides to leave the co-habitation relationship without paying their share of the mortgage payments and the running costs of the jointly owned home but wants 50% of the proceeds upon the sale of the home.
- One of the partners decides to bring a different relationship partner into the home who lives rent-free and eats your food while sharing the bed of your now estranged partner.
- One of the partners decides to leave the relationship and wants to sell the home and the other partner wants to stay and brings in another lover or friend who lives with them without the financial responsibilities of home ownership and running costs. The departing partner is still responsible for paying for the mortgage bond and the home ownership upkeep costs.
- Imagine dealing with the emotional issues of a failed relationship and then trying to decide, or being forced into, dealing with a decision about your mutually owned home.
- Commercially, one or both of you might be self-employed and your enterprise fails through force of circumstances and one of you is forced to declare bankruptcy and go insolvent. Now the liquidator of the insolvent estate has only a few months to sell the jointly owned property to pay off the creditors and the timing may be bad to sell, especially if the economy is underperforming causing the partner to go insolvent.
There are many more possible and probable scenarios. Which is why a Partnership Agreement is vital.
HomeTimes aims to guide homeowners, emphasising co-habitating couples to open their love struck eyes and enlist the help of a family lawyer to draw up a Partnership Agreement to legally regulate your co-habiting life. Don’t ignore the stats and believe that you will be one of the lucky ones. We sincerely hope you are but forewarned is forearmed.