Naledi* not only has a painful story about losing her partner in a car accident but also recalls additional anguish at seeing their assets being yanked away by her in-laws.
At first, her story sounds like a battle of the in-laws and their bitter dictatorship we have all heard about. However, in her case, here is the catch: they were not her REAL in-laws, in the traditional sense.
Naledi was in a cohabitation relationship with her partner Sfiso*. They were not legally married, but stayed together for years, almost like a married couple.
So how did her “in-laws” end up ransacking their home and making off with everything?
“We were in a loving, long-term relationship for nine years. Marriage was something we spoke about only in passing,” relates Naledi.
“We were too busy building our careers and kept putting it off.
“In the course of the relationship, we had acquired most things together, like furniture and household items. Sfiso had bought two cars under his name, and had given me one.
“Our future looked very bright, until I got news that he was in a fatal car accident. That is when my life was flipped upside down.
“Shortly after Sfiso’s funeral, his uncles arrived at the house with a truck and demanded that I leave.
“The house was in his name, and although it hurt, I knew that I was not entitled to it because we were not legally married.
“The uncles proceeded to barge in and make off with all our assets, most that we had purchased together.
“I was left with absolutely nothing. Not even the bed Sfiso and I slept on. I was devastated.”
Who was really wrong in this instance; the uncles or Naledi for choosing a “vat-en-sit” (living together) lifestyle?
What do you really risk by choosing this set-up?
We spoke to various experts, including an attorney, to tell us what the law says about cohabitation, as well as a traditionalist to find out what rights, if any, one has in a cohabitation situation traditionally.
But first, relationship expert Mantsho Kobue walked us through some of the pitfalls one might find themselves in should they choose to live under the same roof as a couple but without the paperwork of marriage.
“Firstly, there is nothing wrong with cohabitation, if that is what both parties choose to opt for.
“Some people just aren’t for [formalities of] marriage, and that is their prerogative,” she says.
“What is wrong is entering into a cohabitation situation with the hope of eventually getting married, while your partner has no intentions whatsoever to make things official with you.
“In that instance, not only are you wasting your time, but your livelihood, the tireless efforts you are putting into the relationship, and the physical strength of maintaining a household.
“Plus, you have no claim whatsoever to anything should things fall apart, as the law will not reimburse you for the many times you ensured that supper was cooked on time, the floors were scrubbed or the free mind-blowing sex you gave your partner. In case of infidelity leading to the demise of the relationship, you can’t claim damages like in a divorce situation.
“So your partner could walk out on you tomorrow and you would be literally back to square one, with nothing to show for all the years you spent in the relationship,” Kobue says.
Attorney and managing director of CHSM Incorporated, Sicelo Mngomezulu, also advices for caution: “Cohabitation, also referred to as living together or a domestic partnership, is not recognised as a legal relationship by South African law. There is no law that regulates the rights of parties in a cohabitation relationship.
“Cohabitation generally refers to people who live together without being validly married. Men and women living together do not have the rights and duties married couples have,” he says.
“Because the relationship is not recognised by the law as a marriage, the rights and duties that marriage confers do not apply. This is the case irrespective of the duration of the relationship.”
So what happens in Naledi’s case for instance? Was she entitled to her partner’s assets?
Mngomezulu says no.
“There is no right of intestate succession (when someone dies without a will) between domestic partners, no matter how long they have lived together.
“The fact that partners decide to live together without entering into a marriage, is therefore no reason in law or in principle why the laws of marriage should be imposed upon a deceased, his estate and his heirs.”
Mngomezulu says South Africa has no regulations governing cohabitation, but that cohabitation does have certain legal consequences and certain legislation does define “spouse” so as to include a partner in a cohabitation relationship.
“South African courts have on occasion recognised that a “universal partnership” exists between couples, provided that the requirements of our common law are met in the circumstances. Lobolo can be the basis or argument that can possibly entitle one of the partners to lay claim to any assets.”
We also asked traditionalist Jongisilo Pokwana ka Menziwa if cohabitation is recognised traditionally. “Cohabitation is taboo in our culture. Beyond being taboo, it is unlawful because our custom does not provide for another form of a union between a man and a woman other than that which is done in accordance with customs and tradition.”
* Not their real names
Source: Sowetan Live