Many couples shack up but don’t tie the knot. Conventional wisdom has it that such relationships are more prevalent today than in the past and, indeed, shacking up would appear to have benefits compared to more formal relationships, especially if the parties are not yet ready to commit to marriage.
Such relationships have been legally recognised by provisions made in, for instance, legislation dealing with domestic violence, medical schemes and the like. The downsides of such relationships are not always clear and, those who would lead us legally, have been considering recognising such relationships. The South African Law Commission brought out a report on domestic partnerships in 2006 and 2008 saw the promulgation of the Domestic Partnerships Bill. Despite this, parties in such relationships are often at risk, as our law does not give the same recognition to such relationships as it would of marriage.
One area in which parties are especially vulnerable is the joint ownership of fixed residential property.
Whilst the relationship is rosy, such an arrangement is fine. Difficulties arise when such parties split up. A recent case in the Eastern Province eloquently illustrates these. The parties had bought a property in equal shares, intending to marry each other later. They subsequently agreed to terminate their relationship but were unable to agree on how this was to be done. One argued that they had tacitly agreed to account to each other at the end of the relationship and alleged that a partnership had been entered into. The other disputed this and each calculated the sums that they alleged was owed by the other differently.
Such allegations are quite difficult to handle. Proving a tacit agreement is difficult and, whilst the construct of a universal partnership is often used to deal with long-term relationships (often within a marriage), the difficulty lies especially in proving one of the elements of a partnership, i.e. making a profit: which is often furthest from the minds of those entering into such a relationship… In this case the sums overpaid by one, and not made up by the other, was ruled to have prescribed as the difference between a partnership and mere joint ownership lies in that, at the end of a partnership, the parties have to account to each other; whilst in the case of joint ownership, a debt due by one to the other prescribes after three years.
The answer of course is that where parties commit substantial sums of money to a relationship, they should formalise this as early as possible; whilst the rosiness lasts.