Living together - Know your rights

A change in SA law made a few years ago has greatly improved the position of those who are divorcing and, in the process passing their residential property to one of the couple concerned: since 2006, the partner taking possession of the property no longer has to pay transfer duty on it.

"This was obviously a logical step to take because whether or not it was stipulated in the couple's legal documents in most cases they were in practice joint owners," says Ulrik Strandvik of the legal firm Gunstons Attorneys. "The law has recognised the realities."

The law also accepts that the same transfer duty exemption can apply to a couple who have been in a longstanding relationship, sometimes referred to as a common law marriage.

In dividing up their assets following an agreement to part, the person taking over their home is no longer required to pay transfer duty. This applies even when their union was never formalised by a marriage ceremony or contract, provided they clearly intended to form a long term partnership or had had such a partnership.

"It is," said Strandvik, "important to note that, as I understand the law, this exemption applies only to people whose relationship has endured some time. If they have lived together only a few months in the home, the individual taking ownership of it would still probably have to pay transfer duty."

As it stands, the law can also apply in the same way to same sex relationships of some length, said Strandvik.

"In these amendments SA law has shown that it is aware of the changes in SA society."
"Marriage is not seen as obligatory or necessary by many of today's couples. Some will see this as bad for social stability but it is a fact that the law has to recognise and respond to equitably."

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