The financial dangers of ‘Vat en Sit’

There’s a mistaken belief that cohabitation, also known as vat en sit, creates legal rights, especially when children are involved.

Sorry to burst your bubble, but South Africa does not recognise cohabitation, and that means couples in umjolo (dating) are treated as separate individuals, with very limited automatic claims against each other.

The draft Domestic Partnerships Bill, published in 2008, aimed to provide legal recognition and protection for cohabiting couples but is yet to be adopted. It aimed to grant rights similar to marriage regarding property, maintenance, and inheritance.

Sarah Nicholson, head of customer experience at JustMoney, a financial institution, warns mistaken beliefs about cohabitation can have serious financial consequences for couples. Love and commitment, on their own, do not create legal rights.

According to Nicholson, if you are unmarried and you have no legal agreement, you forfeit several rights:

• there is no automatic claim to property ownership, even if you helped pay for and maintain the property;
• you do not have an automatic right to claim maintenance from your partner if the relationship ends;
• you do not qualify for tax advantages available to married couples. For example, money or assets transferred between spouses do not attract donations tax;
• you are not entitled to make medical decisions for your partner if they become incapacitated;
• without a valid will, the surviving partner has no automatic right to inherit from the deceased’s estate. This can leave the partner financially vulnerable, or even without a home, at an already difficult time; and
• you cannot claim benefits from your partner’s pension or provident funds.

Ways to secure your rights

Sandra van Staden, a family law specialist from Bernadt Vukic Potash and Getz Attorneys, says there are limited legal avenues that may offer some protection when a relationship ends or one partner dies. These include proving the existence of a “universal partnership”.

“This is a legal concept where courts may recognise that a couple lived together and shared finances, property, and responsibilities. Each partner made a contribution to a partnership established for their mutual benefit,” said Van Staden.

However, such cases can be complex, expensive, and uncertain.

“The proposed Domestic Partnership Bill will assist couples who choose to cohabit rather than marry. It will provide the option to register their relationship as a domestic partnership, creating similar rights and responsibilities as a marriage. However, the bill remains in draft form and is not law,” said Van Staden.

The most straightforward way to secure full legal protection remains entering into a legally recognised marriage or civil union.

“If you are considering a civil union, keep in mind that while the state recognises them, some religious and cultural institutions disapprove of civil unions and refuse to perform a ceremony. This is an important consideration if you have strong religious beliefs or cultural heritage,” said Nicholson.

For couples who choose not to marry or enter into a civil union, Nicholson recommends taking steps to reduce uncertainty.

• Draft a valid will to ensure your partner is provided for.
• Prepare a cohabitation agreement, also called a life partnership agreement. Clearly set out how property is owned, how financial contributions and household expenses are shared, how joint bank accounts will be handled if the relationship ends, who is responsible for any debts, and whether any maintenance will be paid after separation. Take independent legal advice and ensure documents are properly drafted and signed.

“The message is simple: if you are building a life together, it’s essential to ensure your legal and financial arrangements reflect that reality,” said Nicholson. “Failing to do so can leave both partners and their families exposed to unnecessary risk.”

Sowetan