Division of property between two people who are no longer in a relationship can be a thorny issue. The easiest way out would be negotiations between the parties to reach an amicable solution. In the event that this is not achievable then the courts will be the right forum to address the contentious issues.
In the instance where they are both directors of a company, the company can still operate whether or not the two parties are together because a company is a legal person. A company is a separate legal entity from the individuals running it.
In the event that one of the directors wants to resign then they can do so through a written notice addressed to the company’s board with details on their intention to resign. To resign as a director, an individual must issue a written notice and also swear an affidavit highlighting the resignation details and transferring their shares to another director where applicable basically relinquishing their shares in the company for value.
Property is only referred to as matrimonial property if it was acquired in the course of a marriage by couples who are legally married. When it comes to division of property, courts do not give status to couples that are cohabiting and as such property that they acquire together will not be subdivided under the matrimonial property regime which is governed by the Matrimonial Property Act. The division of property will depend on the regime under which the said property was registered. In the case of land, the property could either have been registered as joint tenancy or common tenancy.
A joint tenancy arises whenever land is conveyed or devised to two or more persons without any words to show that they are to take distinct and separate shares. No one co-owner has a better right to the property than the other/s. Tenancy in common on the hand is where two or more holders hold the property in equal undivided shares. Each tenant has a distinct share in the property which has not yet been divided among the co-tenants.
Where a property is registered in the joint names of the parties, it is assumed that each party made equal contribution towards its acquisition. This presumption is however rebuttable by either party proving to the required standard that their contributions were not equal.
Esther Masanyangila: What I learned after closing my boutique side business
Where the property in dispute is not registered in the joint names of the parties, then they have no joint legal interest. The party claiming beneficial interest in that case will have to prove their respective proportions of financial contribution towards the acquisition or development of the said property. The court has the jurisdiction to allocate a portion of the disputed property as it deems just. It may also order a transfer of the share to the beneficial owner.
Unlike common tenancy, Joint tenancy carries with it the right of survivorship which means that when one joint owner dies, his or her interest in the land passes on to the surviving joint tenant. It is necessary for couples to have these considerations when acquiring property outside of marriage.
