Financial risks of ‘Vat and Sit’ cohabitation are real.

SEDIBENG.- Relationships, like most things in life, change over time. Cohabitation outside traditional marriage, or “Vat en Sit” as it is commonly known in some communities has become increasingly common as conventions have changed as more couples adopt the ‘common law’ approach to living together- not realising that common-law marriages don’t legally exist in South Africa.

What many don’t realise, says John Manyike, Head of Financial Education at Old Mutual Limited, is that cohabitation is a stable, monogamous relationship which looks like marriage to outsiders and carries with it some obligations.

“As long as a couple is sharing an intimate relationship, share a home and have a long-term commitment with each other they may think that they have opted for a simpler way to express their personal commitment. The reality, however, is that the conventional rights that accompany a civil marriage are missing. Rights that are conferred on each partner through mechanisms like ante-nuptial contracts, community of profit and loss agreements and similar mechanisms are absent. When an unmarried couple living together decide to part, it is then that difficulties emerge. Usually, the primary concern is property.”

“Some people who choose to cohabit do so in the belief that after a period of six months, they will be treated as a couple living in community of property and that the civil law that applies to married couples will apply to them.

“The hard truth is that there is no such thing as a ‘common law’ marriage in South Africa,” stresses Manyike, who adds that the concept has been tested in our courts where it has been held that:
• Although cohabiting couples do not have a formal marriage certificate, the monogamous, intimate relationship wherein the couple have lived together for an extended period with an express or tacit agreement to share responsibilities and obligations, having accumulated assets together and their estates having gained profit may imply that they are in a universal relationship.
• In this type of partnership the couple unite what they have and commit to sharing anything that may be accumulated during the relationship.
• This agreement, therefore, has the appearance of a marriage in community of property.
Believing that being committed partners without a marriage certificate means that parting is simple and involves amicably agreeing to part, however, is where couples go wrong, says Manyike.
The truth is much more complicated and includes:
• Risks to personal pension fund or provident fund benefits:
The Pension Funds Act of 1956 recognises that there can be financial dependents in respect of pension death benefits. In effect, this means that “Vat and Sit’ couples will find that the death of a partner could impact on death benefits paid by pension or provident funds death benefits of pension or provident funds are not subject to marital laws or joint estates in instances where a couple is married in community of property and do not form part of a will.
• An over-indebted ‘Vat en Sit’ partner could see his or her partner’s assets also being attached by the Sheriff. Couples generally don’t keep receipts of assets they have acquired during their relationship and requesting the sheriff to isolate one’s assets from the attachment process could require a legal process.
• If a relationship does collapse, former partners could find that a court could order some assets from the relationship to be sold, so that each person can have a ‘fair’ share of the accumulated assets where courts find that a Universal partnership existed.
• In both ‘Vat and Sit’ relationship and or customary marriage that is not registered with home affairs, where one partner dies, the surviving partner runs the risk that the deceased partner’s family may want to claim the assets. A court intervention may be the only solution in certain circumstances where parties disagree about the status of the relationship.
• A partner passing on without a valid will could see a fight between partner and family for the right to various assets.

The decision to live together on a ‘Vat and Sit’ basis, therefore, should be very carefully considered. If the relationship is what a couple wants, Old Mutual recommends that steps are taken to formalise parts of the arrangement. These considerations should begin with considering having a lawyer draft an agreement between the parties.
Couples should also consult a financial adviser for financial planning and to facilitate the drafting a will.

“Passing on without a will could leave a faithful, grieving life partner in a situation where getting what you would have wanted the other to have becoming part of a costly legal battle.
“So, cohabitation is not as simple as it appears at first sight. Avoiding problems that could occur if a relationship is terminated through agreement or death, should be considered and catered for before moving in with each other,” concludes Manyike.