In depth – Vat & Sit: are you legally protected?

Living with a partner might be a dream come true, but what happens when you break up or he dies? We investigate what legal rights you have when things don’t turn out the way you’d hoped.

DOING IT FOR LOVE

With the cost of living fluctuating, living with a partner seems rather appealing right? You can split the expenses that come with running a household between two, allowing both of you the room to provide for each other and any other dependants you may have. Despite the temperamental economy, there is one ultimate reason why couples choose to cohabitate. One word and four letters that are often accompanied by romance, butterflies in one’s stomach and the promise of forever – love. Over the years, couples have done very daring things for love. In William Shakespeare’s Romeo and Juliet, the star crossed lovers ended their lives after Juliet awoke to find Romeo dead (he thought she was originally dead and then took his life) and then she took her own life too. Then there’s Issa and Lawrence on Insecure. The pair lives together as an unmarried couple, until they break up. When Lawrence moves out, he takes only

his clothes, disregarding the fact that they shared the costs to maintain their rented apartment. In the film Loving, Mildred and Richard Loving, are a real life couple who stood up for their love despite it being shunned upon (they were an inter-racial couple living in America in the late 50’s early 60’s). Mildred was jailed for being a woman of colour who married a white man but together they fought until the Supreme Court ruled that barring interracial marriages was unconstitutional. It was a huge victory in trying times. These days, couples all over the world continue to dare to love. This love manifests in different ways, one of them being vat en sit. Now this might not seem as dramatic or bold as the declarations of love from our famous couples, but living together before marriage could have severe after-effects should you decided to go your separate ways or should one partner pass away.

YOUR FINANCES

When Nompilo Sithole*, a 28-year-old personal assistant from Johannesburg, decided to move in with her boyfriend, she couldn’t wait for their life together to begin. “I had arrived in Joburg two years before, and met my boyfriend through mutual friends. We quickly fell in love and he asked me to move in with him,” she says. At first she was very hesitant, because they weren’t married and coming from a traditional family, this was what was needed before living with someone. Despite this, she took the plunge. “It made financial sense to live together, and my boyfriend paid for the rent while I took care of groceries and the upkeep of the house,” she continues. When Nompilo’s boyfriend finally proposed (in the Western sense – there were no lobola negotiations held), she was elated but their engagement was short-lived after they called it off a mere six months later. “We started arguing a lot about money, because we hadn’t defined the parameters correctly. I realised that should something happen, despite having built a home with this man, I had no guarantee that I’d be entitled to anything,” she adds.

What the law says: Nthabiseng Monareng, an independent family law specialist, says that, “South African law does not recognise cohabitation and as a result, couples cannot claim financial support from each other. The only exception is when the partners have entered into a cohabitation agreement whereby they give each other rights and obligations, which may include financially supporting each other. The cohabitation contract is a legal document and can be used in court should one of the parties default on its terms.” Monareng continues: “For a cohabitation agreement to be valid, both parties must be single, meaning no one can be married.”

For Kgomotso Motaung* a 32-year-old financial advisor, the story was a little different. Before moving in with her exfiancé, he had asked for her hand in marriage and traditional lobola negotiations had taken place at her family home. So during the period when her fiancé was busy paying lobola, he asked her to move in with him. The house was already in his name, so they kept it that way and she also contributed towards the bond repayments. During the two years they lived together, they had acquired two new cars, also under his name. Kgomotso had provided deposits for both while also paying for their insurance cover, and the couple continued to manage the maintenance of the home together. As for the vehicles, despite having paid the deposits, it was her fiancé who was paying for the instalments for both. “We had smooth systems in place because we both worked in the financial sector, but nothing prepared me for what was to come,” she says. When they split, things got really ugly. A massive fight ensued and the back and forth of trying to decide what belonged to who and why, was tedious. “Besides the initial lobola letter, we had no other document set up or in place,” she adds.

What the law says: “In terms of the Recognition of Customary Marriages Act, for a marriage to be regarded as a customary marriage, the woman must be handed over as a wife. This involves performing traditional ceremonies where the woman is taken to the male partner’s family. If the male partner only pays lobola and the woman is not handed over as a wife, this will not be legally recognised as customary law marriage. Should the couple separate, there’s no claim to property, unless for those that are jointly owned,” Monareng elaborates. Pretoria-based attorney Zamazulu Kgatle agrees with the

South African law does not recognise cohabitation and as a result, couples cannot claim financial support from each other. – Nthabiseng Monareng

customary marriage sentiment by adding that, “even where all the celebrations are observed, it doesn’t necessarily mean a customary marriage is concluded where the parties did not have the intention to be married in terms of customary law.

“Consent is one of the requirement and where there is no consensus, we cannot argue that the marriage exists.” She further states that, “in an instance where the bond is in your partner’s name, and there is no agreement, it does tend to be tricky if you’re paying for the bond. The other party may simply raise the defence that it was a gift or that you were just helping by virtue of the existing relationship.” And what about the cars, you may ask? After all, they both contributed to these financially, just like with the property. Monareng adds that, “a fiancé is not a husband and there’s no obligation for him to support you. If he bought a car under his name, the car belongs to him. It’s not advisable to keep the vehicle because it will, firstly, have to be returned to the bank, who remain the legal owners until the car has been paid off. The fact that one gets to drive the car and use as ‘their own’ does not entitle them to ownership.” Kgatle also adds that, “although the agreement with the bank is such that the vehicle must be insured while financed, the agreement with the insurer is separate. Again, you may claim for undue enrichment for the period you paid for insurance, however, again, the other party can raise the defence that you did reap some benefit from the same.”

Grace Madlala is a 55-year-old woman from Kwa-Zulu Natal who has been living with her partner for over 30 years. Together they have raised two adult children and built everything together. They jointly own their home, have acquired assets together but have still never been married both traditionally and in the civil sense. “When I first met my partner, my parents did not approve. When his family came to ask for my hand in marriage and began lobola negotiations, my father turned them away,” she says. So they decided to move away from home and start a life together away from those who were against it. “We didn’t have enough money to get married at the time, so we just decided to cohabitate,” she adds.

What the law says: The couple have since signed a cohabitation agreement and should anything happen, Kgatle says that the following options are possible should either party want to claim the joint property they own:

Option 1: Lodge a civil claim for undue enrichment. You would obviously have to prove that you contributed to the asset and would therefore suffer loss should you be denied your share and/or contributions. The other party can, of course, raise the defence that you enjoyed the property while staying there or earning rental income which may decrease your claim. Option 2: One should take careful notice that the cohabitation agreement is only enforceable between the parties. That means it cannot be enforced against debtors and/or creditors such as the bank. You may, however, be successful if there is a life partnership agreement that has been notarised (authorised). Option 3: Where the two have a joint bond (this is a terrible idea when you’re not married), the bank has the right to claim for the bond repayments jointly and/or severally. This means that if you separate, you will still be liable. If you want to be removed from the bond, the bank will need to look at whether the partner remaining with the bond can afford the repayments, if not, unfortunately you’ll be still liable. Kgatle adds that, in her view, the best options are: to sell the property, settle the bond and split the proceeds To enter into an agreement in terms of which one party pays the other out for their contribution to the property Whichever direction you choose to take, always remember that should you decide to take the litigation route, it will be costly and take up a lot of your time.

MONEY VOWS

In any relationship, whether married, engaged or dating, money plays a huge role. Ultimately it should be discussed right up front to avoid any grey areas in the future. Author and financial expert Suze Orman speaks about this in her online discussion titled How To Marry Your Finances. Although we’re exploring the topic of cohabitation and not marriage, this is still very relevant for any couple living together. “You’re both in charge and responsible. You both have to share equally in all money decisions – from the monthly spending to the long-term retirement planning. I don’t care if one of you ‘likes’ to handle finances more than the other. You can delegate who takes the lead on things, but that does not mean that the other person can just tune out. There is to never be any decision made before it has been fully discussed and understood by both of you. Failure to do that means your relationship is at risk of failure.” She continues to add that, “Your Money Vow: Yours, Mine and Ours. I want you to have at least three separate checking accounts. The ‘Ours’ account is the joint account that’s always sufficiently funded to

cover all your household’s essential spending and saving. That includes everything from the rent/mortgage to the monthly automatic deposits you are making into retirement accounts. If there is more money left over after meeting all of your monthly needs, I think it is healthy for you both to also have separate accounts as well. The Yours and Mine accounts are how you avoid fighting over different spending habits. Because you are already meeting all of your essential needs through your joint account, you are both free to spend (or save) the money in your individual accounts as you want. No discussions or arguments necessary,” she explains.

IN CASE OF DEATH

Should death befall a couple who is cohabitating, a will is absolutely necessary to prove any form of support. Kgatle says that, “your rights are pretty straight forward where there is a will. However, it may be tricky if your partner has a wife who he was married to in community of property. This means that although there is a will, she is still entitled to 50% of the property before it is divided between the remaining beneficiaries. It gets trickier where the deceased died intestate (without a will in place). If he has a wife, she will still be entitled to her spousal share. The Intestate succession Act is however not clear on whether this applies to spouses married in and out of community of property.” If there wasn’t a will in place, Kgatle adds that “one can institute a claim against the estate as a dependent. This does, however, mean that you would need to prove the support the deceased partner was providing. You can also claim for future loss of support as well. This may require expert services, such as that of an actuary, to determine the loss which you have suffered and will suffer in the future.” Despite this, Kgatle adds that it’s important to note that, “the Executor of the estate and heirs to the estate reserve the right to dispute this where, for example, you have already received funds from the deceased’s policies where you were the beneficiary. Although the policies would not form part of the deceased estate, there is some financial gain which you have reaped and it should have an impact and/or reduce your claim for maintenance.Your claim would also have to be accepted by the Master of the High Court.”

So before you decide to take the leap of love and live with your man, make sure that you understand the ins and outs of your decision.

Author Dave Willis once said, “never trade temporary pleasure for permanent regret.” Make the right choice and protect yourself9. *Not their real names

Before you decide to take the leap of love and cohabitate, make sure that you understand the ins and outs of your decision.