Introduction
Property disputes between unmarried couples are increasingly common in South Africa as more couples choose to live together without marrying. Unlike married spouses, unmarried partners do not benefit from the automatic property and matrimonial rights that marriage confers. This often results in legal uncertainty when the relationship ends or during disputes, especially regarding ownership and division of assets.
This article provides a detailed explanation of how South African law approaches property disputes between unmarried couples, the legal mechanisms available to resolve these disputes, and practical advice for protecting property rights in cohabitation.
The Legal Position of Property Ownership for Unmarried Couples
Unmarried couples do not have a specific legal regime governing their property relations like married couples, who fall under matrimonial property law. Instead, property ownership and division between unmarried partners are governed by general principles of:
- Property law (ownership rights);
- Contract law (agreements between parties);
- Unjustified enrichment; and
- Universal partnership concepts established in case law.
No Automatic Joint Ownership
Simply living together does not create joint ownership of property acquired during the relationship. Ownership depends on who holds title to the property or who can prove beneficial interest.
Key Legal Concepts in Property Disputes Between Unmarried Couples
1. Proving Ownership
The first step in any property dispute is determining legal ownership. Property registered in one partner’s name is presumed theirs, but the other partner may challenge this by showing:
- Contributions to the purchase price or mortgage payments;
- Improvements made to the property;
- Agreement or understanding between partners that the property is jointly owned.
2. Universal Partnership
A universal partnership is a legal concept recognized by South African courts whereby unmarried partners can be considered to have formed a partnership to share profits and losses, including property acquired during the relationship.
To prove a universal partnership, the following must be established:
- Both partners contributed financially or through labour towards acquiring property;
- There was an intention to form a partnership;
- The partnership was aimed at mutual benefit;
- Property acquired was intended to be shared.
If proven, property can be divided as in a partnership.
3. Unjustified Enrichment
If one partner has contributed to the other’s property without formal ownership rights, they may claim restitution based on unjustified enrichment. This requires proving:
- The other partner was enriched;
- The claimant suffered a corresponding loss;
- There is no legal justification for the enrichment.
This claim can result in financial compensation but not ownership transfer.
4. Cohabitation Agreements
A cohabitation agreement is a proactive way for unmarried couples to regulate property ownership and division. It can specify:
- Who owns what;
- How assets and debts will be divided;
- Financial contributions;
- Procedures in case of separation.
Such agreements reduce disputes and provide legal certainty.
Resolving Property Disputes: Legal Remedies and Processes
Mediation and Negotiation
Unmarried couples are encouraged to attempt mediation or negotiation to reach an amicable agreement. This approach is faster, less costly, and less acrimonious.
Litigation
If negotiation fails, parties may resort to litigation. Courts will examine:
- Evidence of ownership;
- Contributions to property;
- Agreements between the parties;
- Conduct during the relationship.
The court may order division of property, compensation, or restitution depending on the case.
Role of the Family Advocate
Where children are involved, the Office of the Family Advocate may assist in resolving disputes, ensuring the child’s best interests are prioritized.