Moving in? Understand the legal implications of vat en sit relationships
In recent years, cohabitation has increasingly become a convenient arrangement for unmarried couples to share the costs of living while, for others, it is the ideal way to test a relationship before making a big commitment. In Afrikaans, “vat en sit” means “to take and sit down”, meaning to take a partner and settle down together without formalities. In the current economic climate, many young couples live together before or after their engagement, before or after lobola is paid, or before the couple is legally married.
So, due the high cost of weddings and, well the sense of finality in the commitment of it all, cohabitating couples are the fastest growing family type all over the world, however the legal and financial implications of these set ups can be damning, let’s unpack.
Cohabitating relationships otherwise known as vat en sit may be a common occurrence in South Africa, however these types of relationships are not legally recognised in this country. This means that while couples that share a home and have a long-term commitment with each other might think that they found a way to get to have their cake eat it in this relationship thing, they might actually be in for a rude awakening. In fact, vat en sit relationships are the opposite of security and, erm commitment.
The reality of vat en sit relationships is that they lack the conventional rights that come with a civil marriage conferred on each partner through mechanisms like ante-nuptial contracts, community of profit and loss agreement. Needless to say, this could have detrimental effects on either party in the event of death or the relationship ending.
For instance, You cannot easily claim spousal maintenance from a cohabitant, and when they die, you won’t be able to inherit their assets unless they leave a will and name you as a beneficiary. Your partner’s family may also have the right to evict you from the house where you’ve been living.
Another hard truth about long term cohabitating relationships (usually for more than six months) that has also been tested in the court dealings over the years is that they often take on the appearance of a marriage in community of property. Committing to each other without a marriage certificate means parting is simple, but it does not imply amicably agreeing to part.
While cohabiting couples may not possess a formal marriage certificate, for the most part, their relationship has been monogamous and intimate for an extended period with an agreement to share responsibilities and obligations whether expressly or tacitly. If they have accumulated assets together and their estates have gained profits these couples are in a universal relationship.
Universal relationships are characterized by an agreement (tacit or otherwise) between the parties that all their assets will be put into a communal pot and, should the partnership disintegrate, the assets will be distributed based on the agreement between the parties. In these situations, you and your partner do not necessarily keep what you brought into the relationship, and there is the possibility that you could share assets that you have accumulated.
Another great misconception is that paying lobola is an automated marriage. This is simply not the case. Certainly, lobolo is an essential requirement under section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998; however, lobolo is not a marriage in itself. After the lobola payment has been made, the wife must be handed over to her husband’s family in an official traditional ceremony. To do away with the uncertainties spouses are advised to ensure they register their customary marriage. However, failure to register a marriage does not necessarily make it invalid.
Again, the risks involved in vat en sit and unregistered/unrecognised customary marriage arrangements include having your assets repossessed when your partner is overindebted, your pension/provident fund being affected, or losing your assets should your partner die or break up with you.
If you are in a long-term relationship and have chosen not to enter into a civil marriage or formally regulate your relationship, it may be prudent to consider entering into a cohabitation agreement to control what will happen to your respective assets in the event that you and your partner decide to part ways.
Among other things, a cohabitation agreement regulates the financial aspects and the well-being of the child or children. Despite not being a marriage contract, it is legally protected in a similar way to a marriage contract. A cohabitation agreement offers the benefit of being able to end the relationship without having to go through the courts. In the absence of a cohabitation agreement, partners would only be entitled to the assets that they own in their own names and the investment portions of the property they contributed to.
Whereas if you get married, it is a valid and binding contract that you enter into. Marriage contracts can only be dissolved by a competent court, which in South Africa is a regional court or a high court, but cohabitation agreements govern their own separations without involving the courts.