Married, Unmarried, Buying a Home; What Changes Legally?

By Jolané van der Walt-Nieuwoudt

Biography 

Jolane van der Walt is an admitted attorney of the High Court of South Africa, with more than a decade of experience in civil, family, criminal and labour law matters. She holds both an LLB and a Master of Laws (LLM) from Stellenbosch University, where she also lectured for three years. She has further enhanced her legal expertise by obtaining certificates in Labour Law from the University of Cape Town and Medical Law from the Legal Education and Development (L.E.A.D) division of the Law Society. Jolane has been with Legal Hero for seven years and is our Head of Legal (Legal Insurance Policies & Value Added Services).

Introduction

Buying a home is one of the biggest financial and emotional commitments a couple can make. The status of your relationship (whether married or unmarried) carries serious legal consequences when it comes to property ownership in South Africa.

With cohabitation becoming increasingly common, many couples are choosing to buy property together without getting married. While this arrangement offers flexibility, it also comes with legal challenges, especially when the relationship ends.

This article explores how property ownership works for married versus unmarried couples, the legal protections available, and what steps one can take to protect oneself.

Unmarried Couples: Fewer Protections, More Risk

South African law does not automatically recognise relationships outside of marriage, even if you have been living together for years. That means one will not enjoy the same protections as married couples unless you take steps to secure your rights.

Key Legal Considerations

a) Title Deed and Ownership Shares

• The title deed is the most important document in determining who owns the property.
• If both names are listed, they are considered co-owners, usually in equal shares, unless otherwise stated (different percentages are stated).
• If only one partner’s name appears, the property legally belongs to them.
  • Financial Contributions

• Unequal contributions to the bond or maintenance can cause disputes.
• Without written agreements or proof, it is difficult to claim back payments if you separate.
• Cohabitation Agreements

A cohabitation agreement is a powerful instrument for unmarried couples. It outlines:

• Ownership shares
• Responsibility for bond payments and expenses
• What happens if your relationship ends or you wish to sell the property
• Whether one party can force a sale

Without such an agreement, disputes often lead to costly legal battles.

Unmarried Couples: When the Relationship Ends, Who Gets the House?

For unmarried couples, there is no automatic right to division of property. Disputes are resolved based on ownership as reflected on the title deed, financial records, and any agreements in place.

Possible Scenarios

• Selling the Property

If both partners agree, the home can be sold and the proceeds divided according to ownership shares. If one partner refuses, legal action may be necessary.

• Buying Out the Other Partner

One partner can buy out the other’s share, with proper valuation and legal assistance to transfer ownership.

• Going to Court

If an agreement cannot be reached, the courts can order the sale of the property and determine a fair division of proceeds. The recent High Court (Western Cape Division) case of K.A v A.E and Another (15857/24) [2024] ZAWCHC 392,reinforced the principle that title deed ownership prevails, even if one partner claims to have spent more on renovations. The court further emphasized the importance of documenting contributions and agreements.

Married Couples: Legal Protections and Property Rights

When married couples buy a home, how the property is owned depends on the type of marriage:

• Marriage in Community of Property

In South Africa this is the default marriage regime if the couple does not sign an antenuptial contract (ANC) before marriage.

Legal consequences:

• All assets and debts, before and after the marriage, are shared equally.
• A house bought by one spouse becomes joint property, regardless of who paid.
• Both spouses must sign any legal documents related to the property.
• The property may be affected if one spouse is sued or has debt.
• Marriage Out of Community of Property (With or Without Accrual)

This requires an ANC signed before marriage and keeps each spouse’s estate separate.

(i) Without Accrual

• Each spouse retains their own assets and debts.
• A house bought by one spouse remains their property, unless both names are on the title deed.
• On divorce, there is no division of assets unless otherwise agreed.

(ii) With Accrual

• Assets remain separate during the marriage.
• On divorce or death, the spouse whose estate grew more may owe the other a share.
• A house may be subject to division depending on the accrual calculation.

Getting Married After Buying Property Together

If you bought property before marriage and later get married, your property rights can change depending on your chosen marital regime:

• Marriage in Community of Property: The property becomes part of the joint estate, especially if the bond is still being paid.
• Marriage Out of Community of Property (with or without accrual): The home remains separate property unless the accrual system applies.
• Always update your Last Will & Testament to reflect your new marital status and property ownership.

Quick Legal Checklist for Couples Buying a Home

Whether you are married or not, always:

• Decide whose name(s) will appear on the title deed.
• Discuss and document contributions and ownership percentages.
• Sign a cohabitation agreement (if unmarried) or antenuptial contract (if marrying).
• Clarify what happens in case of death, divorce, or separation.
• Consult a property attorney or conveyancer.
• Update your Last Will & Testament accordingly.

Conclusion: Plan for Love, but Prepare Legally

Buying a home together is an exciting milestone, but it comes with legal implications. Married couples benefit from built-in legal structures depending on their marital regime, while unmarried couples must be proactive in protecting themselves. A solid legal foundation is just as important as a solid roof over your head.