There is no doubt that the matter of E.W v V.H (12272/2022) [2023] ZAWCHC 58 (17 March 2023) will advance to the Constitutional Court for clarity on whether a duty of support exists between life-partners following termination of such a partnership.
Introduction
Wille J’s minority judgment in E.W v V.H (12272/2022) [2023] ZAWCHC 58 (17 March 2023) largely concurred with the reasoning of Cloete J and Slingers J. However, Wille J disagreed with the ultimate decision and would have granted a different order because he believed the case primarily involved constitutional issues and the granting of interim financial relief. Wille J emphasized that when dealing with such issues, a court must be careful not to simply apply traditional legal principles. Instead, the focus should be on addressing the actual harm that needs to be remedied. In support of this view, Wille J cited the persuasive reasoning in the majority judgment in Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others [2022] ZA CC 44 para [251]. where the court held that:
‘… I see no legal impediment to a judge in such circumstances reaching a conclusion that says prima facie there is enough pointing to the determination of the legal question in the applicant’s favour in the envisaged later proceedings…’ According to that judgment, a judge is not legally prohibited from finding that there is sufficient evidence to rule in favor of an applicant in a later proceeding based on the prima facie evidence before the court.
Overview
The applicant and respondent were in a long-term romantic relationship spanning over nine (9) years, resulting in the birth of three (3) minor children. The applicant alleged that the respondent was solely responsible for the financial support of herself and the children, providing approximately R100 000,00 per month for household expenses and maintenance. The rent for the former family home was paid by a trust controlled by the respondent, of which the applicant and children were beneficiaries. The applicant was apprehensive about ending the relationship due to the respondent’s threats that she would be left destitute if she left.
Since the termination of the relationship a year ago, the respondent has significantly reduced the monthly support payments, threatened to terminate the lease of the former family home, and filed an application to gain custody of the children, causing distress to the applicant. In this case, the respondent conceded under oath that he was in a permanent romantic relationship with the applicant for nine years. It is so that the applicant only raised this latter issue in the form of a replying note with the leave of the court. The respondent was allowed to deal with this allegation and declined to do so. Thus, according to Wille J, the allegation was left untouched and had to be accepted. Given the nature of the application (and taking into account, among other things, the case studies admitted into the record by the amicus), Wille J was of the view that he would have called for the production of all the proceedings in the George Court. He stated: “However, the majority in this connection overruled me.”
According to Wille J, the applicant’s case was that she was in a permanent life partnership with the respondent, which created a reciprocal duty of support. She supported her claim by highlighting the following: (a) a romantic relationship of over nine (9) years; (b) a wedding-like ceremony; (c) the birth of three minor children from their partnership; (d) over seven (7) years of living together in a common home; (e) the public’s perception of their relationship as a marriage; (f) the parties referring to each other as husband and wife; (g) the respondent providing financial support to the applicant and maintaining her; (h) the parties sharing responsibility for their common home’s upkeep based on their respective means; (i) the parties providing emotional support, love, and affection to each other; and (j) the applicant raising the children born of their relationship.
The applicant was in a difficult position as she needed interim financial relief from the respondent. However, the respondent denied any duty of support and refused to contribute towards her maintenance. The applicant had no income or assets and relied solely on the respondent’s financial assistance to make ends meet. Wille J stated that the common law acknowledges a reciprocal legal duty of support between spouses during the marriage, which is considered an unchanging consequence of marriage. Therefore, during the breakdown of a marriage and before its termination, spouses can utilize the procedures provided for in the court rules to enforce this duty of support on an interim basis. However, parties in life partnerships have no remedy for interim financial relief during the subsistence or following the termination of their relationships.
Wille J also took into account that there were pending action proceedings against the respondent in which the applicant averred that the relationship endured with the respondent constituted a permanent life partnership. Accordingly, the applicant’s case was that the court should be encouraged to develop the common law in a manner that gives effect to the extent that the common law and legislation do not adequately do so. Wille J stated: “This must be done by recognizing a legal duty of support for unmarried permanent life partners following the termination of the said life partnership. To achieve this, the applicant launched an application for interim maintenance, pending the determination of the action, as well as a contribution to her costs in pursuing the action. The applicant advances that she has no alternative remedy to enforce her entitlement to maintenance from the respondent following the termination of their life partnership. In summary, the applicant advances that she cannot afford to wait until the termination of the pending action as she will be left destitute in the interim, and she has no other funds to prosecute her maintenance claim in the pending action. She avers that she has taken extensive loans from family and friends in the interim to assist with her dire financial position.”
Relief
The applicant in this matter requested the court to develop the common law to declare that partners in unmarried opposite-sex permanent life partnerships, where reciprocal duties of support were undertaken during the life partnership or where they factually reciprocally supported each other, were entitled to claim maintenance from one another following the termination of the partnership, to the extent that they were unable to provide for themselves from their own means and earnings. In addition, pending the final determination of the action between the parties, the applicant sought an order for the respondent to pay her a cash maintenance amount of R56 000,00 per month and to bear the costs of retaining her on her current medical aid scheme. The applicant also requested an initial contribution towards the costs of the pending action in the amount of R750 000,00. The applicant provided security for the repayment of these amounts if the court determines that no duty of support exists between the parties. The respondent, however, believed that the security provided was inadequate and needed to be improved.
Consideration
Wille J identified a key issue to be considered in the case, which was whether it was appropriate to determine the development of the common law in an application for interim financial relief. The respondent argued that it was not appropriate, as the determination of whether a legal duty of support arose out of a permanent life partnership was a question of fact. The respondent contended that the duty of support arose from the facts giving rise to a contract to support. The respondent further argued that unlike in a marriage, where the existence of the marriage was capable of ready determination through a marriage certificate and where the consequences thereof flowed by operation of law, in a permanent life partnership, the nature of the obligations undertaken in the partnership had to be proved by the partners’ agreement, and these facts could not Mnk v Pam Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (Family) (27 January 2023) page 3 at para [3] simply be presumed or shown on a prima facie basis.
The applicant claimed that, even according to the respondent’s version of events, a permanent life partnership existed between the parties, and therefore, the duty of support during the subsistence of the partnership was implied as a matter of law. However, Wille J noted that the objective of interim relief was to restore the status quo between the parties pending the final determination of the action. Therefore, the court must determine the legal issues before granting interim relief. Wille J further stated that the court cannot postpone the decision on the legal issues, as it is obligated to decide whether the common law should be developed to recognize the duty of support between life partners.
The applicant argued that the legal issues regarding the development of the common law and the duty of support between life partners required a final determination, even though the facts of the life partnership were subject to a prima facie determination at the interim relief stage. To establish her claim for interim relief, the applicant needed to demonstrate, on a prima facie basis, that a life partnership existed between her and the respondent, that the respondent provided her with maintenance during the partnership, that the respondent was capable of maintaining her at a standard of living similar to that enjoyed during the partnership, and that she was unable to maintain herself at that standard of living. Wille J noted that the determination of whether the applicant and respondent were in a permanent life partnership at this stage of the litigation need only be established on a prima facie basis. He cited a recent Kenyan case Mnk v Pam Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (Family) (27 January 2023) page 3 at para [3] that stated that courts could presume the existence of any fact that was likely to have happened based on the common course of natural events, human conduct, and public and private business, in their relation to the facts of a particular case.
The legal issue according to Wille J required a final determination because there was no alternative remedy, and the applicant would suffer prejudice if the application was not granted. The prejudice the applicant would suffer significantly outweighed the prejudice the respondent would suffer if the interim financial relief was granted. Thus, irreparable harm was established according to Wille J. Wille J stated: “This argument is, to some extent, fortified by the security the applicant’s father tendered if the trial court eventually finds that no life partnership existed between the applicant and the respondent. Finally, it must be so that discretion vests in this court to grant the interim financial relief sought by the applicant. On the issue of discretion in these circumstances, our jurisprudence indicates that:
‘…in the exercise of its discretionary power, the court may impose such terms as it may think fit upon the grant or refusal of interim relief…’”
The applicant and respondent both agreed that affordability was not an issue in the application and that the applicant was accustomed to a luxurious lifestyle during their relationship. However, the reduction in maintenance paid to the applicant occurred after the termination of the relationship.
Wille J noted that a key consideration in this application was the issue of prejudice. He stated, “The potential harm to the applicant if interim financial relief is not granted must be weighed against the potential harm to the respondent if it is granted.”
To address concerns about the applicant’s ability to repay the interim financial relief if she is unsuccessful in the pending action, the applicant’s father offered security for the amounts payable by the respondent. The applicant argued that she needed an adequate alternative remedy to enforce her entitlement to interim financial relief from the respondent following the termination of their life partnership, as she could not afford to wait until the termination of the pending action and had no funds to pursue her maintenance claim.
Wille J stated further: “Equally important, for me, is the applicant’s claim for a contribution towards her legal costs on an interim basis. I say this because the applicant has no means to fund the pending action as she has no assets and earns no income. She has thus far managed to pay a portion of her legal costs by borrowing money from friends and family, as evidenced by the loan agreements and the amounts received from her father and her friends. To the contrary, the respondent has conceded the affordability of the applicant’s claims for purposes of this application. Moreover, the applicant will require the services of a forensic accountant in preparation for the trial. The respondent advances that the applicant can maintain herself, and she will accordingly require an industrial psychologist’s services for the trial”.
The general constitutional approach to the development of the common law is that our courts are enjoined: (a) to determine what the existing common-law position is; (b) to consider its underlying rationale; (c) to enquire whether the current common-law position is constitutionally offensive; (d) if it does so offend, consider how development ought to take place and; (e) to consider the broader consequences of the proposed change on the relevant area of the law.
Wille J emphasized that when considering the development of the common law within a constitutional framework, it is important to take into account all relevant provisions of the constitution and approach the inquiry holistically. The issue at hand was whether the applicant’s interpretation of the law would further the integrated and inclusive nature of equality as envisaged by the constitution, and Wille J was of the opinion that it would. He was supported in his view by the previous Chief Justice’s remarks and conclusions in the minority judgment in the Bwanya case, which suggested that the exclusion of permanent life partnerships could be addressed incrementally by developing the common law to meet the identifiable needs.
The applicant argued that the current lack of recognition of a legal duty of support between life partners during the subsistence of the life-partnership under the common law constituted unconstitutional discrimination on the grounds of marital status and gender. According to Wille J, this discrimination perpetuated the traditional power dynamic in which male partners dictated the nature of the relationship and therefore the legal benefits arising from it. The current choice offered to individuals in long-term permanent relationships is limited to either getting married with legal benefits or remaining unmarried without them, which assumes that people make an informed choice to forego the legal benefits of marriage. However, Wille J argued that people in long-term cohabitation relationships may believe that their relationships have beneficial legal consequences, and the current one-dimensional formulation of choice does not capture the social and legal complexities of unmarried intimate relationships.
This called for an analysis of our jurisprudence cited in the argument on behalf of the respondent to the objections to developing the common law.
Wille J dealt briefly with recent developments in our law concerning some of what he believed were the most significant case authorities. In the minority judgment in Volks NO v Robinson and Others [2005] ZACC 2; 2005 (5) BCLR 446 (CC), it was indicated that there were two groups of cohabitants whose duties to support one another deserve legal protection:
‘…The first would be where the parties have freely and seriously committed themselves to a life of interdependence marked by express or tacit undertakings to provide each other with emotional and material support…’ The legal duty of support here, according to Wille J was based upon recognizing and enforcing the parties’ undertakings or agreements. In the second group, the law recognized that the duty arises:
‘…from the nature of the particular life partnership itself. The critical factor will be whether the relationship was such as to produce dependency for the party who, in material terms at least, was the weaker and more vulnerable one (and who, in all probability, would have been unable to insist that the deceased enter into formal marriage). The reciprocity would be based on care and concern rather than on providing equal support in material or financial terms…’
Wille J noted that the law had made some progress in recognizing a legal duty of support between life partners during the subsistence of a life partnership, particularly in the majority judgment in Bwanya v The Master of the High Court and Others 2022 (3) SA 250 (CC). He argued that people have social, moral, and even religious obligations towards each other in the familial context, and that a contract to support cannot be the only reasonable explanation for supporting a partner if there are also affection and altruistic motives. This creates an overlap between contractual and familial relationships that gives rise to a legal duty of support. The court must consider various factors when determining whether a tacit contractual undertaking to support exists, some of which overlap with other factors used to determine whether a qualifying life partnership exists. He stated: “Again, our previous Chief Justice in Bwanya illustrates this point most eloquently as follows:
‘…Common law principles will guide or help a court to determine whether it has been satisfactorily demonstrated that a “legally enforceable duty of support “ exists in a permanent life partnership that bears at least some of the hallmarks of a marriage relationship…’”
Thus, according to Wille J it was no longer appropriate to distinguish between reciprocal support duties that arose by autonomic operation of law as an invariable consequence of marriage and support duties that arose in the context of permanent life partners. According to him permanent life partnerships deserved some constitutional and legal protection.
Wille J considered the lack of recognition of a legal duty of support between life partners in common law as unconstitutional because it constituted discrimination based on marital status. He believed that the common law should be developed to recognize a legal duty of support between life partners during the subsistence of the partnership, which should arise from the existence of the partnership. This development would allow life partners to enforce maintenance obligations during the subsistence of the partnership. If this duty was recognized, there would be no rational reason why life partners should not be entitled to claim maintenance from each other following the termination of the partnership.
Wille J stated: “I say this because there have been significant judicial interventions regarding extending rights to life partners to claim maintenance following the death of one of the partners. Significant judicial interventions have also been made in recognizing different religious marriages and the ‘marital’ consequences thereof. Some of these previously excluded parties have now been brought into the fold. However, parties in life partnerships still need to be included regarding maintenance following the termination of their relationships. The current legal position of life partners and the lack of recognition of the rights of life partners, upon the termination of life partnerships, in comparison to spouses (as broadly defined), in all other marriages, is unequal and discriminatory.”
Wille J believed that there was a pressing need for the common law to be developed to address the issue of maintenance following the breakdown of a life partnership. In the absence of any agreement between the parties regarding maintenance, the court should be empowered to consider various factors, such as the parties’ means and earning capacities, financial needs and obligations, age, duration of the partnership, and standard of living before the termination, as well as their conduct relevant to the breakdown of the partnership. The court should then be able to make a just order regarding the payment of maintenance until the partner’s death or remarriage, whichever occurs first.
The respondent eloquently argued, according to Wille J that this couldn’t be done on an interim basis as more facts may come to light after evidence was presented at the trial. He stated: “This may be so, although I doubt the respondent’s case will improve after the trial action considering what he stated under oath in the care and contact application. Given what the respondent stated under oath, the respondent’s position will probably worsen at the trial. Given the penchant reasoning adopted in the majority judgment in Eskom, I am inclined to grant interim financial relief. I say this because this judgment clarifies the preferred legal position when dealing with temporary relief drenched with an overwhelming constitutional ingredient. In summary, a court should be alive and prepared to grant interim relief in situations that dictate that a constitutional wrong falls to be corrected. I say this because our courts are enjoined to develop the common law so that effect is given to discriminatory rights to the extent that legislation does not give effect to such rights. This is so because our courts must provide a remedy where there is discrimination, and no other remedy is available. Relationships between life partners have changed considerably over the last four decades on social, economic, and many other levels. Given these developments, the issue for consideration is whether life partners should be afforded similar and equal protection to spouses insofar as maintenance is concerned. Our courts are the protectors and expounders of the common law and share an inherent jurisdiction to:
‘…refashion and develop the common law in order to reflect the changing social, moral and economic make-up of society…’”
Put in another way, the absence of any protection for life partners undoubtedly constitutes unfair discrimination against a group that had been traditionally disadvantaged and marginalized. Marital status and gender were listed grounds of discrimination, and thus discrimination against unmarried, co-habiting women is presumed to be unfair. Our courts are vested with the power to formulate an entirely new remedy and procedure in circumstances where the legislature has failed to do so.
Wille J considered whether the concept of maintenance for a spouse upon divorce had a foundation in our common law, and noted that historically, it was generally accepted that the courts had no power to award maintenance on divorce, unless there was an agreement between spouses. Legislative intervention eventually resolved this uncertainty. Despite the pre-existing concept of maintenance for a spouse upon divorce in our common law, the respondent argued that the applicant should have challenged the current legislation directly. Wille J disagreed, stating that the challenge in this case was not directed against the validity of any specific legislation, but rather the need for further legislation to govern the rights of people in permanent life partnerships. A frontal challenge to legislation would involve challenging the constitutionality of multiple statutes and the definition of marriage, as illustrated in the minority judgment in Bwanya. This was clearly illustrated in the minority judgment in Bwanya as follows:
‘…that the defect is not located within section 2(1), but flows from the fact that our law, as a whole, fails to govern the rights of people in permanent life partnerships. This is the real problem here…”
Wille J noted that the respondent’s contention that the applicant should have advanced a full-blown frontal challenge to obtain interim financial relief was misplaced. The applicant was not seeking a complex overhaul of the existing marriage legislation, but rather the development of the common law to recognize a legal duty of support between life partners. The applicant sought similar protection to spouses only in relation to maintenance, and not in relation to the division, forfeiture, or redistribution of assets. The applicant did not seek equal rights to spouses in all respects or for her life partnership to be considered a marriage for all intents and purposes. Therefore, the applicant’s case did not require a frontal challenge to the existing marriage legislation.
On the contrary, according to Wille J she only sought the same protection awarded to spouses upon divorce insofar as maintenance was concerned. Wille J stated: “The appropriate legislation regulating life partnerships may be the perfect solution in the fullness of time. Undoubtedly, in this case, it would have been desirable if the unconstitutional situation had been resolved by legislative intervention without litigation. This has yet to happen despite the passage of an inordinate period. In the circumstances, the power to protect constitutional rights is conferred upon our courts with the discretion to reflect on the required development. The factors that our courts must consider in deciding whether a life partnership, in which reciprocal duties of support arose during the partnership, reflect a mixture of factors that indicate the conclusion of a tacit contract and other factors more indicative of the communities’ legal convictions. The applicant’s case is that she was under the incorrect impression that she had some rights under the permanent life partner relationship between herself and the respondent. The applicant says that she thought she had some rights under the type of relationship she was in and that the contract proposed by the respondent would take even those rights away from her and leave her in a worse position.”
The applicant believed that her relationship with the respondent was akin to a marriage, and that she had acquired rights and protections as a result. Wille J noted that the respondent needed to address this factual position, particularly as the applicant was in a weaker bargaining position. The applicant argued that the duty of support in life partnerships extended beyond mere undertakings, as there were elements of reciprocal duties of support present in her relationship with the respondent. In addition, the applicant and the respondent participated in a wedding ceremony abroad, which was similar to a wedding, and received a wedding certificate, thus demonstrating their intention to be bound together in a permanent relationship in the presence of witnesses.
The fact that the applicant could borrow funds dis not detract from her right to claim maintenance, nor did this morph into an alternative remedy available to her. Wille J stated: “No doubt it would be safer and more appropriate to decide the issue of the existence or not of the life partnership between the applicant and the respondent at the trial. However, given the security offered by the applicant, I see no reason not to grant interim financial relief to the applicant. The respondent advances that the security tendered needs to be increased. The court’s registrar may determine this dispute if the parties cannot agree on the amount of security tendered. This is a manageable hurdle to the interim relief being granted. I need to deal with some of the issues raised by the amicus. It is submitted that maintenance was traditionally developed through common law developments. On this, I agree. In addition, the legislature has taken steps to address the refusal to develop specific areas of the common law relating to maintenance. This does not mean that a court cannot develop the common law in the present circumstances.”
Wille J acknowledged the valuable contribution made by the amicus in presenting case studies highlighting the different situations faced by women who may need similar relief. He recognized that many women were left with no choice but to remain in unhealthy or unhappy relationships, or be left without a home or means of support. He stated: “The case studies presented by the amicus provide a glimpse into the reality faced by many women in our society. It is clear that providing redress to these vulnerable women would be a step in the right direction. It is important for the courts to consider the broader consequences of the proposed change on the relevant area of the law and to ensure that any development of the common law is in line with the values enshrined in our Constitution.”
Finally, according to Wille J it was advanced that providing redress to the applicant, in this case, would significantly impact the plight of these many faceless women in our society. Thus, the case between the applicant and the respondent could not be viewed in isolation. He stated: “On this, I also agree. I say this because every judicial and legislative development since being introduced has provided financial relief to women left vulnerable at the termination of their intimate relationships. Further, it was eloquently advanced on behalf of the amicus that it is common for a court to borrow from the legislature’s language without a frontal challenge to the legislation. The applicant is not seeking a divorce or any consequential proprietary relief. The applicant seeks only interim financial relief. Thus, it is submitted that the applicant, in these circumstances, would face some insurmountable hurdles in challenging specific legislation in isolation. Again, on this, I agree. I can see no difficulty in a court borrowing from the language of existing legislation to provide a limited right in specified circumstances to allow for the applicant and those many different faces of women referenced in the case studies presented by the amicus to claim interim financial relief from their permanent life partners.”
Wille J concluded by emphasizing the importance of family law in protecting vulnerable dependent parties and achieving substantive equality under the constitution. He reiterated that adequate safeguards exist in the court system to ensure fair consideration of claims for maintenance following the termination of a life partnership. Wille J stated, “The protective rationale of family law buttressed by the constitutional goal of achieving substantive equality requires that economically vulnerable dependent parties should not be left impoverished at the termination of dependence-inducing relationships.”
In all the circumstances, Wille J would have made an order in the following terms, namely:
- That it is with this declared that partners, in life partnerships in which the partners had, during the existence of the life partnership, undertaken to each other reciprocal duties of support, alternatively factually reciprocally supported each other, are entitled to claim interim financial relief from one another, following upon the termination of the life partnership.
- The respondent shall pay the applicant the sum of R45 000,00 per month pendente lite in cash maintenance for the applicant. The first payment shall be made on or before 1 April 2023 and monthly after that on or before the 1st day of every subsequent month, free of deduction or set-off, by way of electronic funds transfer into a bank account as the applicant may nominate from time to time, in writing. The amount set out above shall increase annually each year, following the percentage increase in the headline inflation Consumer Price Index, as published by Statistics South Africa, during the preceding year, the first increase effective from 1 April 2024.
- The respondent shall bear the costs of retaining the applicant on the current medical aid scheme and shall bear the costs of all reasonably incurred medical, dental, surgical, hospital, orthodontic and ophthalmological treatment required by the applicant, any sums payable to a physiotherapist, practitioner of holistic medicine, psychiatrist/psychologist and chiropractor, the cost of all prescribed medication and the provisions where necessary of spectacles or contact lenses. The respondent shall pay such expenses promptly within seven days of invoice or shall reimburse the applicant for any expenses she may have paid within seven days of providing him with copies of the relevant invoices or receipts.
- The respondent shall pay an initial contribution of R350 000,00 pendente lite towards the applicant’s legal costs in the trial proceedings. Such sum shall be paid directly to the applicant’s attorney of record as follows:
a. R200 000,00 by no later than the last day of April 2023.
b. R150 000,00 by no later than the last day of July 2023.
- The applicant shall provide security to the respondent for the maintenance amounts paid to her pendente lite and the amounts paid as a contribution towards her costs pendente lite in the amount and form as agreed between the parties, alternatively in the form and the amount as directed by the registrar of this court.
- The costs of and incidental to this application shall stand over for later determination in the trial action.
Case summary by: Bertus Preller Family Law and Divorce Law attorney at Maurice Phillips Wisenberg, Cape Town. For more information on Family Law, visit DivorceLaws.