Cohabitation & Co-owning a Property is Much More Than Just Shacking Up

Cohabitation & Co-owning a Property is Much More Than Just Shacking Up

By Matseleng Mogodi

This article was originally published by Real Estate Investor Magazine. 

Most young people today choose to live together and share a property, and they are very comfortable to not get married. They see the reality of today’s relationship and the immense impact of marriage on a couple. As they say, just chill Mom!

Cohabitation is when a couple chooses to live together even when unmarried, and they usually share expenses and other normal things couples share in a marital situation. This usually ends up in tears, especially when the couple has taken it for granted that they now have marital obligations.

Should one of the parties own a property, and the couple separates, or one of them dies, especially the property owner, the remaining partner has no legal right against the estate of the deceased. However, as of January 2022, this has had a breakthrough, even though it will still take a while to come into effect. This came about due to a case of Ms Bwanya that was lodged against the estate of her late partner, Mr Ruch’s estate, with whom she had been cohabiting prior to his passing. The law had only been protecting partners whose marital spouses have passed on, through either the Maintenance of Surviving Spouses Act or the Intestate Succession Act. It is still the case, partially, until it is in law in a few months/years. Ms Bwanya was able to prove that her partner did indeed support her and that they were a couple living together for several years.

What does this mean when sharing a property?

Lots of bad decisions happen in the so-called month of love. It is vital for a couple that is cohabiting, to have a Cohabitation Agreement, in writing. Many couples believe that they are ‘soul mates and will be together forever, usually around February, or during the festive season. However, this period does come to an end, sometimes it can be revived, but sometimes it gets so bad that everyone loses in the situation. Therefore, it is advisable, that when a couple decides to buy a property together or rent, they must sit down, when it is good, and plan for the unthinkable. And because they would not be emotional when doing the agreement, it will be a constructive and objective document. This agreement should address things like who does what, who pays for what, and what steps would be taken should either one of them pass away, or in the event that they decide to part ways. 

The couple should realize that if one of them were to pass away, the family of the deceased may even take over the property, leaving the mourning partner even more miserable. This then means that partners in a cohabitation set up, have a bigger responsibility towards their 

Partner, like ensuring that there’s a Will that outlines how the remaining spouse would be assisted. 

Having a cohabitation agreement also reduces the stress and unpredictability of what might happen or whether should? Or what if?  In this instance, the property would be covered, the couple knows who pays for what, and they can even include what happens if they should separate, and what if the other party does not pay their portion of the mortgage bond or rental. The agreement, when done in good faith, and earlier in the cohabiting act, will tend to serve the needs of the couple better. It is important to also remember that cohabiting couples may have children, and the respective families may know one another, but if there is nothing that supports the couple, even the children could become the biggest losers should the relationship go south.

Life partnerships are real, and most people seem settled in them, some say there is no pressure of being stuck to this person, and in the process, the couple values each other more. The 21^st Century comes with many shifts in societal mindset, and cohabiting could be the new normal. Ironically, opposite-sex life partners have the same legal rights as married couples, but not opposite-sex life partners, food for thought.

 What happens to a co-owned property when the relationship ends?

1. The couple must reflect on their agreement for instance, who chooses to retain the house should this happen, and follow through on what they had agreed on. If no agreement, then the couple must decide who is in a better position to buy the other one out. This can only happen if one person will be able to afford to pay the monthly bond repayments on their own.

2. The couple remains jointly liable, and it is important to be mature and make decisions that will not taint their credit scores in the future, or prevent them from moving on and purchasing another property.

3. Get a professional to assist with the sale of the property, to ensure that the property will then be in one person’s name or be sold outright.

4. The cohabitation agreement should also cover what happens should there be more value on the property, and how the couple should split the profit if any.

5. The relationship could end because of death, and the surviving partner can be covered through a Will because if there is no Will, and there isn’t sufficient evidence that there was a dependency on the deceased, there might not be any financial support or benefits.

6.  If you can shack up, you can check up on all the do’s and don’ts.

Debunking Some Myths 

1. Living together for a long time (what’s a long time?) makes the couple to be automatically husband and wife

2. When the family of your partner knows you, they know you are the husband/wife

3. Spending your money on your partner’s family, does not entitle you to his/her estate in the event they pass away

4. That there is a specified period that after you have been together then you are married

5. That the house belongs to you even though you’re not on the title deed