A very interesting application was set down to be heard before three Judges in the Cape High Court. In the application, akin to a Rule 43 application, the Applicant will seek that, pending the final determination of an action in which she claims against the Respondent for the provision of her reasonable maintenance needs, insofar as she is not able to provide therefor from her own means and earnings, following the termination of their permanent opposite-sex life-partnership (“the pending action”), the Respondent be ordered to maintain the Applicant in the interim and to make an initial contribution towards her costs in the pending action.
The Law
All married spouses have reciprocal support duties, the existence of which are an invariable consequence of marriage that arise by automatic operation of law. Our Courts have previously held that the law does not impose a similar automatic reciprocal support duty on unmarried partners in life-partnerships, but that this position has changed in the light of recent legal developments.
In the case of Paixão v Road Accident Fund 2012 (6) SA 377 (SCA), the Supreme Court of Appeal found that the common law “dependant’s action”, which entitles a claimant to claim for maintenance and loss of support suffered as a result of a breadwinner’s death, had been extended to a claim by a surviving partner of a permanent opposite-sex life partnership in which the partner had undertaken reciprocal duties of support with the deceased, despite such reciprocal duties of support not having been assumed by express agreement between the parties. The Supreme Court of Appeal held that the deceased had indeed had a legally enforceable duty to support the claimant even though the parties were in an unmarried life-partnership. The enforceable duty arose from a tacit contract for reciprocal support, which the court inferred from the couple’s conduct and surrounding circumstances.
In the recent case of Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC), the Constitutional Court found that Paixão was not ultimately based on a tacit contract for reciprocal support, but rather that the core of the Supreme Court of Appeal’s decision was the court’s view that “[t]he proper question to ask is whether the facts establish a legally enforceable duty of support arising out of a relationship akin to marriage”.
The Constitutional Court in Bwanya thus concluded that it was no longer correct in law to draw a distinction between reciprocal support duties that arose by autonomic operation of law as an invariable consequence of marriage and support duties that arose by agreement in the context of permanent life partners.
When one looks at the factors that the Courts consider when establishing whether a legally enforceable duty of support arises out of a relationship akin to a marriage, they reflect a mixture of factors which would indicate the conclusion of tacit contracts, together with other factors which are more indicative of community legal convictions and boni mores, and, many, if not most, of these factors are more relevant to the question of whether there is an ex lege duty of support between life partners than to the question of whether the partners had a contractual duty of support.
These factors can be summarised as follows:
(a) the duration of the partnership;
(b) whether the partners had children together;
(c) whether the partners took part in a ceremony manifesting their intention to enter into a permanent partnership, what the nature of that ceremony was and who attended it; how the partnership is viewed by the relations and friends of the partners;
(d) whether the partners share a common abode; whether and to what extent the partners share responsibility for living expenses and the upkeep of the joint home;
(e) whether and to what extent one partner provides financial support for the other; whether and to what extent the partners have made provision for one another in relation to medical, pension and related benefits; and,
(f) whether one partner is financially dependent on the other.
The recognition of these factors by our Courts is indicative of the existence of an ex lege duty of support, quite apart from the traditional contractual basis.
It will be contended in this application that the common law recognises the existence of a duty of support between partners in unmarried opposite-sex permanent life-partnerships, and, on account of the duty of support that existed during the subsistence of the life-partnership, such partners are entitled, in terms of the common law, to claim maintenance from one another, insofar as they are not able to provide therefor from their own means and earnings, following the termination of the said life-partnership. Alternatively, should the Court find that the common law does not currently recognise such a claim, it will be contended that such lack of recognition is constitutionally unacceptable as it discriminates on the basis of, inter alia, marital status and sexual orientation, and further that the common law should be developed in a manner that promotes the spirit, purport and objects of the Bill of Rights to recognise such a claim for partners in unmarried opposite-sex permanent life-partnerships.
Where the common law unfairly discriminates, section 39(2) of the Constitution requires the Court to develop the law in order to “promote the spirit, purport and objects of the Bill of Rights”.
The failure to recognise an ex lege duty of support in the case of unmarried opposite-sex permanent life-partners unfairly discriminates against unmarried couples and families, on the basis of marital status.
As a result of the gradual extension of conjugal rights to same-sex life partners, through case law and the development of the common law, there is now a marked disjuncture between rights afforded to unmarried same-sex couples on the one hand, and unmarried opposite-sex couples on the other hand. As a consequence, the lack of recognition of an ex lege duty of support for unmarried opposite-sex partners discriminates on the basis of sexual orientation as well, particularly since same-sex partners are no longer precluded from marrying, as was the position before the Civil Union Act.
Furthermore, in the light of the acknowledged vulnerability of women, brought about by gender inequality within the family and the traditional power structure in which a male partner dictates the nature of the relationship and therefore consequent entitlement to legal benefits, the lack of recognition of an ex lege duty of support for unmarried opposite-sex partners also indirectly discriminates on the basis of sex and gender.
It will be interesting to see what the outcome of this landmark application will be, since, if the Applicant is successful, it will be the first time in the history of South African law that an unmarried partner in a life-long partnership will become entitled to interim maintenance pending an action for maintenance.
Attorney for the Applicant Bertus Preller of Maurice Phillips Wisenberg and Counsel for the Applicant in this matter will be Adv. Brian Pincus SC with Adv Adri Theart and for the Respondent, Attorney Rudolf Britz of Honey and Partners with Counsel, Adv Barbara Gassner SC.
Written by Bertus Preller, Family and Divorce Law attorney at Maurice Phillips Wisenberg, in Cape Town. For more information on divorce and family law, visit DivorceLaws.