Thinking of moving in together? Don’t enter a ‘vat en sit’ arrangement without looking at your options and drawing up a legally binding contract.
So, you think you’ve got loads of good reasons to move in with him? The poor state of our economy is one and the soaring cost of living is another. You’ve calculated exactly how much you’d save if you live together and it makes financial sense. Oh, and of course you are in love with each other. So why wait for marriage when you can live together? But, have you looked at what the law says about live-in relationships, cohabitation or ‘vat en sit?’
Is common law real?
Many couples think that living together for a certain period of time, automatically makes them ‘common law’ husband and wife and that this legally entitles them to the same rights as married people. This isn’t the case, says Ndumiso Voyi of Ndumiso Voyi Incorporated, a black owned and managed law firm in Midrand, north of Joburg. ‘Common law marriages are unfortunately not recognised under our law,’ he explains. ‘In South Africa, the law does not recognise cohabitation (living together as an unmarried couple) as a legal institution with equal status to that of a marriage. If a couple lives together without being married, no matter how long, the legal benefits and protection, which is found in a marriage does not automatically arise.’ Ndumiso adds that the law only recognises the relationship between two parties in a live-in relationship in a few instances. For an example, cohabitation is recognised under the Domestic Violence Act. So, although you’re not married to this guy, if he beats you up the law will protect you and he will be punished. But, adds Ndumiso, if your partner dies without a valid Will that names you as a beneficiary, you will have no right to inherit anything from his or her estate.
Hope on the horizon
Couples who live together may not be legally recognised today, but the law is set to change in future, Ndumiso advises. The Proposed Domestic Partnership Bill was introduced in 2008 and aims to give legal rights to domestic partners who don’t want to register their partnership. Lawmakers realised that problems do arise when people in a live-in partnership have to deal with issues such as dividing a property or agreeing on maintenance and intestate (where a person dies without a Will) matters. Once this bill is introduced into law, it will regulate the legal status of people who are in a domestic partnership. This law will apply to opposite sex and same sex couples. ‘There has been a delay in the coming into effect of the domestic partnership bill and it has not become law as yet,’ Ndumiso says. He adds that until the bill is passed, the best way to deal with the situation is to enter into a life or universal partnership. ‘Sign a legal agreement that will regulate the relationship. This will give you legal protection until the bill comes into effect,’ he advises.
Know your rights
Get it in writing
A legally binding agreement (similar to a contract) that clearly sets out the rights and duties of each partner in the live-in relationship should be drawn up by a legal expert.
Register your live-in relationship
Use the Civil Union Act to make it official. Your rights will depend entirely on the type of civil union you register.
Get an ante-nuptial contract
This will provide financial protection for both of you. You could register your relationship in community of property or out of community of property, just like a marriage.
In community of property
You agree to share your possessions and you’re entitled to half of your partner’s assets, and vice versa. You’re also legally responsible for debt incurred by your partner and vice versa
Out of community of property
With the accrual system, you keep ownership of your pre-contract possessions. When you die or end the relationship, the collected possessions will be divided equally between you. You have to specify if you want the accrual system; if you don’t specify, it will apply by default. Without the accrual system, all your possessions remain your individual property – the ones you’ve brought into the relationship as well as those gained after signing the contract.
Ending the registered civil union
You have to request a court to end your union and it will be handled the same way as a divorce.
Written by Ruwaydah Harris
