The purchase of immovable property by unmarried couples is more than a property shared between them, but it represents a home in which they intend to build a life together. But what are the legal implications for the property once the romantic relationship has come to an end?
This concern becomes more glaring when both parties are financially tied to the property but one party refuses to cooperate.
The High Court's decision in Jackson v Petersen and Others provides significant judicial guidance on the application of the actio communi dividundo, a long-established common law remedy that allows a co-owner to seek the termination of joint ownership of property.
The judgment is particularly relevant in modern South Africa, where increasing numbers of unmarried couples acquire immovable property together. When such relationships deteriorate, disputes frequently arise concerning ownership, occupation, and disposal of the shared asset.
The court’s decision reinforces the principle that no person can be compelled to remain a co-owner indefinitely against their will and clarifies the court's equitable discretion in determining an appropriate division of property.
Factual background
This case involved the applicant and respondent who were in a romantic relationship with a minor child born from the relationship. The couple purchased the property in 2010 as co-owners with equal shares and the property was intended to function as the family home. The property was financed through a mortgage bond.
In 2023, the parties ended their romantic relationship, and the applicant had moved out of the property with the minor child, while the respondent remained in occupation. The applicant serviced the bond and municipal charges for the property while the respondent contributed to household maintenance.
Although the parties had ended their romantic relationship and no longer lived together, they nevertheless remained co-owners of the property, with the applicant continuing to service the mortgage bond.
In an attempt to divide the property, both parties aimed to settle the matter. The parties entered into settlement negotiations where they both agreed to terminating the joint ownership of the property.
Kaamilah Paulse and Mieke Wiehman 30 Jul 2026 It was agreed that once they receive a market valuation, the party who first received financing to purchase the other party’s half share, that party would then have to purchase the other’s half share and have the property registered in their name.
In 2025, the applicant received a pre-approved bond for the respondent’s half share of the property and presented an offer to the respondent.
Instead of accepting the applicant’s offer for his half share of the property and complying with the settlement agreement entered into by the parties, the respondent sought an extended amount of time to purchase the applicant’s half share of the property.
Frustrated with the respondent’s non-compliance with the settlement agreement, the applicant launched legal proceedings in the High Court for relief to terminate the joint ownership of the property and ultimately bringing an end to their joint financial ties.
Despite opposing the application and appearing before court on several occasions, the respondent never filed answering papers.
Co-ownership cannot be forced
The long-standing common-law concept of actio communi dividundo is a remedy that allows a co-owner of the property to end the co-ownership. The High Court in explaining the reasoning for this remedy said that no person should be forced to remain a co-owner indefinitely.
The High Court provided clarity on when actio communi dividundo can be applied to terminate co-ownership. An important distinction was made in determining the type of co-ownership that would qualify for the common law remedy to apply.
These types of co-ownership are classified as bound co-ownership and free co-ownership.
Bound co-ownership exists where ownership is linked to an underlying legal relationship, such as a partnership or marriage in community of property. In such circumstances, the co-ownership cannot necessarily be terminated independently from the underlying legal framework.
By contrast, free co-ownership exists where no such legal bond ties the co-owners together.
Wilmien van Biljon and Martin Vermeulen 26 Mar 2026 In this case, the parties were in a romantic relationship which ended. In defining the relationship between the parties, the court said that the property was purchased by the parties merely as partners where they cohabited in the property throughout the relationship.
Unlike marriage in community of property or universal partnership, the relationship between the parties did not provide for a legal relationship, which would bind their joint ownership over the property.
The court emphasised that while a romantic relationship may have motivated the acquisition of the property, it did not legally prevent either party from seeking termination of the ownership arrangement once the relationship had ended.
Accordingly, the actio communi dividundo was available to the applicant.
Division of the property must be just and equitable
Once it is clear that the common law remedy will apply, the court would then need to decide a fair and equitable way to divide the jointly owned property.
The High Court considered a few factors in determining a proper division of the property.
The termination of the romantic relationship between the parties, as well as the applicant being employed and moving out of the property with the parties’ minor child and servicing the bond for the property all played a role in deciding how the property would be divided.
The respondent’s continued unemployment as well as his decision to reside in the property after the end of the relationship, was also considered.
The settlement agreement between the parties was clear in providing that should either party be the first to receive finance to purchase the other party’s half share, that party would then purchase the other’s half share in the property.
Although the respondent constantly insisted on receiving more time to be able to purchase the applicant’s half share of the property, which was not provided for in the agreement, he nevertheless failed to obtain financing to make the purchase.
Since it was the applicant who was the first to receive financing to purchase the other’s half share of the property, the respondent was not allowed to insist on being given more time to obtain financing.
The court accordingly ordered the termination of co-ownership and directed that ownership be transferred solely to the applicant.
As a safeguard, the court further ordered that should she fail to obtain final financing and complete transfer within three months, the property would be sold on the open market and the proceeds divided equally between the parties.
Broader significance of the judgment
In Jackson v Petersen, the High Court reaffirmed a foundational principle of South African property law: co-ownership is not a permanent obligation.
Where a relationship has ended and cooperation between co-owners has become untenable, the courts will intervene to provide an equitable solution.
The judgment demonstrates the continued relevance of the actio communi dividundo in modern property disputes and highlights the judiciary's willingness to craft pragmatic remedies that balance legal rights with commercial reality, fairness, and the interests of affected family members.
For cohabiting couples who jointly own property, the decision serves as a timely reminder that while acquiring property together may be straightforward, disentangling ownership after a relationship breakdown requires careful legal consideration and, where necessary, judicial intervention.
