In earlier articles I made mention of an application that will be argued in the High Court Cape Town on 20 January 2023 before 3 Judges. The Women’s Legal Centre Trust (WLCT) have also lodged an application to be admitted as an Amicus Curiae in the application.
In this application the applicant will ask the Court to develop the common law in order to allow partners in life partnerships, in which the partners had undertaken reciprocal duties of support, to claim maintenance pendente lite from one another following the termination of the life partnership, insofar as the said life partner is not able to maintain themselves from their own means and earnings.
The application is aimed at the development of the common law of the duty of support in life partnerships and is geared to providing a remedy for maintenance upon the termination of a permanent life partnerships in circumstances where the parties, as a matter of fact, had undertaken reciprocal duties to support one another during the existence of the partnership.
The applicant will be contending that it matters not whether the duty of support arose ex lege or by agreement. What matters it will be contended, given the nature of the relationship, the reciprocal undertaking creates a legally enforceable duty of support. See: Paixao and Another v Road Accident Fund 2012 (6) SA 377 (SCA) para 36.
Flowing from that legally enforceable duty of support, the question is whether it may be enforced after the termination of the partnership. The applicant and respondent will both be referring to the various legislative and judicial developments which have extended the legal consequences of the duty to support after the termination of marriage, either by death or divorce.
In respect of termination by death, the judiciary has extended the remedies (both legislative and common law) to the surviving spouse of a life partnership. However, whereas s 7(2) of the Divorce Act 70 of 1979 provides for maintenance after divorce, no comparable remedy exists in respect of the termination of a life partnership by separation.
There is consequently differentiation between spouses who are married and partners to a life partnership. It will be submitted that this differentiation is considered unfair discrimination, fails to respect and protect the dignity of women who are in life partnerships and denies them the right of access to courts.
The following observation in the minority judgment of Jafta J in Bwanya v Master of the High Court, Cape Town and Others (CCT 241/20) [2021] ZACC 51; 2022 (4) BCLR 410 (CC); 2022 (3) SA 250 (CC) (31 December 2021) is instructive:
“[s 2(1) of the Maintentance of Surviving Spouses Act] does not create a new right and an obligation. It merely extends the duration of the existing ones.“
The majority judgment of the Constitutional Court in Bwanya starts with an observation that “approximately 3.2 million South Africans cohabit outside of marriage” and that this number is increasing continuously.
In Bwanya the Court also recognised the narratives presented by the WLCT of women explaining the circumstances and reasons behind their life partnerships.
The evidence demonstrates the reasons couples live together without getting married include:
(a) A absence of bargaining power by the woman in the relationship;
(b) Dependency by the woman and children on the financial support of the man in the relationship;
(c) The flawed belief by one or both partners of the existence of a ‘common law’ marriage.
Looking at these reasons, and taking into account the destructive history of this country, it will be no stretch of the imagination to infer that the majority of persons negatively affected by the absence of any kind of financial security upon the termination of life partnerships will be indigent, Black women.
The Community Survey 2016: An exploration of nuptiality statistics and implied measures in South Africa (“the Community Survey”)8 illustrates that, as at 2016, 2 735 587 out of a total of 3 234 204 respondents who identified themselves as “cohabiting” were “African/Black”.
It will also be submitted that the absence of a maintenance remedy upon termination of a life partnership violates the right to equality enshrined in s 9(3) of the Constitution and s 6 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
In respect of women in life partnerships, commonly, the lacuna in the law constitutes discrimination on the basis of sex, gender and marital status. In respect of Black women in life partnerships, the lacuna in the law also discriminates against them on the basis of race.
It will also be submitted the differential treatment amongst married spouses and life partners who have undertaken reciprocal duties of support infringes the latter’s dignity (and therefore infringes s 10 of the Constitution).
In the absence of a recognised legal remedy to claim maintenance, women who are left vulnerable at the conclusion of a life partnership, as opposed to their married counterparts, are left with no safeguards to obtain financial support.
The outcome, whether the Applicant will be successful or not, will settle the law on the aspect of whether an Applicant has a right to interim maintenance and a contribution to costs pending an action for maintenance in a life partnership.
Some of South Africa’s most seasoned counsels will be arguing the matter, namely Adv Brian Pincus SC for the Applicant and Adv Barbara Gassner SC for the Respondent with Adv Ashleigh Christians for the WLCT. Attorneys for the Applicant Bertus Preller of Maurice Phillips Wisenberg Attorneys for the Respondent Rudolf Britz of Honey and Partners.