THE COMMON LAW MARRIAGE IN SOUTH AFRICA NEW DEVELOPMENTS – PART TWO OF FOUR.

In Part One, which can be read here, I dealt with developing the common law in regard to maintenance for partners in heterosexual permanent Life Partnerships / Cohabitation/ Common Law Marriage in South Africa. This article deals with the deal with the recognition of an ex lege duty of support between life-partners during the subsistence of the life-partnership.

As mentioned in Part One, the common law recognises an ex lege reciprocal duty of support between spouses during the course of the subsistence of a marriage. The duty originates, by operation of law, from the mere existence of the marriage.

Recognising an ex lege duty of support between life-partners during the subsistence of a life-partnership.

In Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC) (“Volks”), the Constitutional Court in its majority judgment, penned by Skweyiya J, clearly held that “no duty of support arises by operation of law in the case of unmarried cohabitants”, see, Volks par 56. The key premise of Volks, in which the court was called upon to decide whether limiting the benefit of the Maintenance of Surviving Spouses Act to married couples was constitutional, was that maintenance obligations between life partners arise solely by agreement (contractual) an do not “by operation of law ”, as is the case with spouses in a marriage. In the Court’s words:

“To the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement and only to the extent of that agreement. The Constitution does not require the imposition of an obligation on the estate of a deceased person, in circumstances where the law attaches no such obligation during the deceased’s lifetime, and there is no intention on the part of the deceased to undertake such an obligation.” See Volks par [58].

However, in his minority judgment in Volks, Sachs J held that there are 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.” See Volks par [214].

In this group therefore the legal duty of support is founded upon the recognition and enforcement of the parties’ undertakings or agreements: in effect, their contracts to support one another, see Volks par [214].

In the second group, Sachs J continued, the law recognises 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.” See Volks par [218].

In this therefore, the legal duty of support is not based on contract but rather on the nature of the relationship and dependency. Since Volks was decided, the law has changed and developed in line with the minority judgment in Volks, as appears below.

In Paixão and Another v Road Accident Fund 2012 (6) SA 377 (SCA) (“Paixão”), the Supreme Court of Appeal held that the action of a dependent, following the death of a breadwinner, can be exercised by the surviving partner in a life partnership. Cachalia JA recognised that the obligations were contractual, and that the surviving partner and her daughter had to “establish not only that they had an enforceable agreement against the deceased but that the obligations created by the nature of their relationship were worthy of the law’s protection.” See: Paixão par [23]. Cachalia JA held that the law should shield that relationship and continued to state that “Having regard to the incremental extension of the dependants’ action through the times, our ideas of morals and justice, and of equity and decency, I can see no reason of principle or policy not to extend the protection of the common law to the appellants here. In my view, the ‘general sense of justice of the community’ demands this.” See: Paixão par [36].

The Supreme Court of Appeal made it clear that this applied not only to cases where there was an agreement to marry, but to any relationship where “the facts produce a legally enforceable duty of support arising out of a relationship akin to marriage”. See: Paixão par [39]. It would seem that the SCA must have had in mind the recognition of legally enforceable duties of support arising out of life-partnerships.

In Laubscher v Duplan 2017 (2) SA 264 (CC) (“Laubscher”), the Constitutional Court recognised that “the existence of factual reciprocal duties of support in unmarried relationships underlies the reasoning that it is unfair to discriminate between married legal duties of support and unmarried factual duties of support. Formally they may be different, but functionally they are similar.” See: Laubscher par [83].

As Froneman J argued in Laubscher, if the Court in Volks had recognised the identity of the two obligations, and its own earlier reliance on those obligations, “the rationale for preferring the marriage validated legal duty of support would have been seriously undermined”. See: Laubscher par [83].

In furthering the theme that the law has moved on and developed in line with the minority judgment of Sachs J in Volks, it is important to note that in discussing Paixão, the Constitutional Court, in the majority judgment of Madlanga J, in Bwanya stated that:

“It is plain that the familial nature of the relationship at issue was central to the Supreme Court of Appeal’s conclusion on the prosecutability of the dependants’ action by a surviving opposite-sex life partner against the Road Accident Fund. The nature of the relationship informed the development of the common law. The Court held 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 fact that the duty of support arose from an agreement took a back seat. And that this was so is plain because I cannot imagine that a court could recognise a dependant’s action where friends had similarly assumed – through agreement – reciprocal duties to support each other. What took centre stage in Paixão was the fact that the duty existed, and it existed in a familial setting. And it is that familial and spouse-like relationship that made it necessary that the right be afforded legal protection. To the Court, public policy as undergirded by constitutional values dictated this. With this development, it seems to me it can no longer be fitting to distinguish the duty of support existing in the two categories of familial relationships (i.e. marriage relationship and permanent life partnership) purely on the basis that one arises by operation of law and the other arises from agreement. Today it would be simplistic to continue to hold that view. How else can the fact that similar protection (i.e. protection of the nature provided by the Paixão development) cannot be afforded to a maintenance agreement between friends be explained?”. See: Bwanya para 71.

Emanating from the majority judgment of the Constitutional Court in Bwanya, this dictum is definitely persuasive in recognising an ex lege duty of support between life partners during the course of the subsistence of the life-partnership.

One could argue that in the family context, where people have moral, social and even religious obligations to behave in certain ways towards one another, and where, they also act out of affection and altruistic motives, a contract to support cannot be the only reasonable explanation for partners’ conduct in maintaining. Basing the duty of support entirely on contracts, may well ignore the inherent tension and overlap between contractual and familial relationships. Therefore an argument can be made that the duty of support in familial relationships, such as life-partnerships, is not founded contract alone. Even though there will always be elements of contract in life-partnerships.

The inherent tension and overlap between contractual and familial relationships are demonstrated in the factors which courts take into account in determining whether a tacit contractual undertaking to support has been proved, which factors overlap with the factors developed by the courts in deciding whether or not the existence of a qualifying life-partnership has been proved. These factors mirror a mixture of factors which would suggest the conclusion of tacit contracts, together with other factors which are more indicative of community legal convictions and boni mores.

One can argue that the recognition of the factors, followed by our Courts, is indicative of the existence of an ex lege duty of support, quite apart from the traditional contractual basis, and, in light of the Constitutional Court’s conclusion in Bwanya, that it was no longer appropriate 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, properly understood, the common law already recognises the existence of an ex lege duty of support between partners in unmarried permanent life-partnerships during the subsistence of the life-partnership.

Factors that indicate a lifelong partnership

The following factors have been considered in the cases, see Bonthuys “A duty of support for all South African unmarried intimate partners part 1: The limits of the cohabitation and marriage-based models” 2018 PER 2:

• the nature of the relationship and whether it has similar characteristics to marriage, see: Du Plessis v Road Accident Fund 2004 1 SA 359 (SCA) (“Du Plessis”) par 14 and 42; Paxiao par 29; Satchwell v President of the Republic of South Africa 2002 6 SA 1 (CC) (“Satchwell”) par 25:

• the marriage-like or conjugal nature of the relationship, see Meyer v Road Accident Fund (TPD) (unreported) case number 29950/2004 of 28 March 2006 (“Meyer”) para 29; Volks paras 122, 193; Du Plessis paras 15, 25; Langemaat v Minister of Safety and Security 1998 3 SA 312 (T) (“Langemaat”) paras 314B, 316G; Satchwell paras 4, 23;
• the duration of the relationship, see Volks paras 3, 121; Meyer para 31; Du Plessis para 3; Langemaat 316H-I; Satchwell para 25:
• the fact that the couple shared a household, see Verheem v Road Accident Fund 2010 2 SA 409 (GP) (“Verheem”) para 2; Langemaat 316H-I; Satchwell para 5;

• whether the parties had children together, see Verheem para 2; Volks para 3;
• the fact that one partner had contributed to raising the other partner’s children see Verheem para 2, Meyer para 3;
• whether the partners undertook duties of reciprocal support see Paxiao par 20; Du Plessis par 14;
• actions of reciprocal support over time see Paxiao para 8, 19; McDonald v Young 2012 3 SA 1 (SCA) (“McDonald”) para 21; Volks para 5; Du Plessis para 4; Satchwell para 25;
• the financial dependence of one party upon the other, see McDonald para 21; Volks para 128; Du Plessis para 4; Khan v Khan 2005 2 SA 272 (T) para 10; Satchwell para 5;
• the contents of the partners’ wills, see Paxiao para 20; McDonald para 21; Volks para 7; Meyer para 31; Du Plessis para 4; Satchwell paras 5, 25;
• community perceptions of the relationship and statutory recognition:
• whether the parties were regarded as a committed couple by family members and friends, see Verheem para 2; Meyer para 29; Du Plessis para 3; Paxiao para 20; Satchwell para 4;
• the fact that many statutes include unmarried cohabitants, see Volks para 178; Rose v Rose 2015 2 All SA 352 (WCC) (“Rose”) paras 40-47;
• the fact that the parties had concluded an Islamic or other religious marriage see AM v RM 2010 2 SA 223 (ECP) para 5, 6; Amod v Multilateral Motor Vehicle Accidents Fund 1999 4 SA 1319 (SCA) para 20; Rose paras 49, 50;
• whether the partners took part in a ceremony, what the nature of that ceremony was and who attended it, see National Coalition for Gay & Lesbian Equality v Minister of Home Affairs 2001 (1) BCLR 39 (CC) para 88;
• how the partnership is viewed by the relations and friends of the partners see National Coalition for Gay and Lesbian Equality para 88;
• changes in the boni mores see Amod para 23; Khan para 11; Paxiao para 13; Meyer para 28;
• the partners’ marital status:
• whether the parties planned to get married in future, but had been prevented from doing so see Verheem para 2; Paxiao para 21; Meyer para 29;
• whether the partners were unable to enter into a legal marriage see Du Plessis paras 3, 14; Langemaat 314B; Satchwell paras 4, 16;
• that the parties had not married, even though there was nothing preventing them from doing so, see Meyer paras 29, 32; Volks paras 3, 91-94;
• that one of the partners was simultaneously married to another person see Paixao v Road Accident Fund 2011 ZAGPJHC 68 (1 July 2011) paras 29, 40, 41; Rose paras 20, 30;
• factors which would typically prove contractual consensus:
• the existence of a document confirming the agreement see McDonald para 4;
• express statements that the one would support the other see Du Plessis para 15;
• the existence of other contracts between the partners see McDonald para 22; and
• the reliability or unreliability of the litigants’ testimony see McDonald para 11.

What is of interest, is that in the Canadian case Molodowich v Penttinen, 1980 CanLII 1537 (ON SC), the District Court of Thunderbay in discussing the meaning of the word “spouse” in a statute, stated that the courts may consider various factors as relevant to determining the status of a relationship, most of the factors above was taken into consideration. See Molodowich page 6.

As mentioned above, one can argue that the recognition of these factors is indicative of the existence of an ex lege duty of support between life-partners, quite apart from the traditional contractual basis, see Bonthuys “A duty of support for all South African unmarried intimate partners part 1: The limits of the cohabitation and marriage-based models” 2018 PER 2.

There is also an alternative argument that can be made out insofar as the common law does not presently recognise such an ex lege duty, is that it should be developed to recognise that the maintenance obligations of life partners arise by operation of law, as the lack of recognition thereof is unconstitutional, discriminating, as it does, on the grounds of, inter alia, marital status and gender.

Rather importantly, and as stated by the Constitutional Court in Bwanya, “it can no longer be fitting to distinguish the duty of support existing in the two categories of familial relationships (i.e. marriage relationship and permanent life partnership) purely on the basis that one arises by operation of law and the other arises from agreement” see, Bwanya para 71.

One can assume that the rationale for the distinction no longer passes constitutional muster. In Bwanya, the Constitutional Court overturned Volks and held that the exclusion of permanent heterosexual life-partners from the benefit afforded by section 2(1) of the MSSA amounts to unfair discrimination on the ground of marital status. Although in the context of considering the constitutional validity of legislation, the analysis conducted by the Constitutional Court in this regard is apposite to the analysis required regarding the constitutional invalidity of the common law failure to recognise an ex lege duty of support between life partners during the subsistence of the marriage, which one can argue unfairly discriminates on the basis of, inter alia, marital status and gender.

Furthermore, the Constitutional Court in Bwanya emphasised that the proscription in section 9(3) of the Constitution of unfair discrimination on the ground of marital status exists for a reason and the constitutional stipulation in section 9(5) that discrimination on this ground is presumptively unfair underscores that reason.

In the majority decision in Bwanya, the Constitutional Court continued as follows:

“We should be wary, therefore, … not readily to accept as constitutional the differential treatment of institutions that are akin to marriage. Being overly permissive on differential treatment that is based on grounds that are presumptively unfair may unduly water down the reach of this proscription. The proscription is not only about distinctions in types of marriages. The words of Mokgoro J and O’Regan J in their dissent [in Volks] are apt: “We are unable to agree with Skweyiya J to the extent that he suggests that in determining whether discrimination on the grounds of marital status is unfair or not, one can take the view that it is not unfair to discriminate between relationships to which the law attaches the obligations of support and cohabitation and those relationships to which the law does not attach such consequences. In our view, this approach defeats the important constitutional purpose played by the prohibition on discrimination on the grounds of marital status [section 9(3) of the Constitution]. For if it does not constitute unfair discrimination to regulate marriage differently from other relationships in which the same legal obligations are not imposed upon the partners to that relationship by the law, marriage will inevitably remain privileged. We do not consider this would serve the constitutional purpose of section 9(3), and its prohibition of unfair discrimination on the grounds of marital status.”” See Bwanya para 118.

The Constitutional Court in Bwanya further held that the “real question to answer is whether this discrimination is unfair”, especially considering the rebuttable presumption created by section 9(5) of the Constitution that discrimination on the ground of marital status is unfair, and further that “where the rationale for the existence of certain legal protections in the case of marriage equally exists in the case of permanent life partnerships, the question arises: why are those legal protections not afforded to life partners?” See Bwanya para 54.

The Constitutional Court then referred to the features of marriage, being to “embrace intangibles, such as loyalty and sympathetic care and affection, concern…as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or in a support-generating business” see Bwanya para 55, – and held that “these features are not foreign to permanent life partnerships”, see Bwanya para 55 and “in all these respects, permanent life partnerships are very much akin to marriages.” See Bwanya para 56.

As to the justification advanced in Volks that people who want the benefits of marriage should exercise their choice to marry in order to do so, the Constitutional Court in Bwanya found in the following three paragraphs that:

“[62] …in many permanent life partnerships the choice not to marry is illusory. As mentioned in Part One of this artickle WLCT presented evidence based on narratives by a number of women about what it was that underlay each of their permanent life partnerships.

[63] The first two reasons typify what is to be expected in a society that is dominated by men in virtually all areas of human endeavour. And life is not so mechanical that one may ask why, instead of walking away, women stay in permanent life partnerships if– in some of them – it is men that do not want to get married. Much as it may not take much for some to walk away, that is not necessarily how life works. A woman may have to be content with what in essence is the man’s choice. A concurrence in Miron, a judgment of the Canadian Supreme Court, says “[f]or a significant number of persons in so- called ‘non-traditional’ relationships…notions of ‘choice may be illusory’” To suggest that everybody does have a choice is out of touch with reality.

[64] …The question is not whether absolutely there is no choice. It is whether realistically choice may be exercised.”

The Constitutional Court in Bwanya further held that:

“Permanent life partnerships must be accorded the necessary respect as they are one of life’s realities; an institution through which many in our society lead their lives, give and receive love in return, engage in love-making, find solace, seek and get protection and all manner of support, form families, enjoy some of life’s myriad pleasures with those they love, and receive sustenance and – in the case of children born or raised within those relationships – nurture.” See Bwanya para 67.

Accordingly, so the Constitutional Court concluded, “the question whether parties to permanent life partnerships choose not to marry is the wrong question to ask” and the correct question is rather: “are permanent life partnerships – in and of themselves – deserving of constitutional and legal protection?” See Bwanya para 68.

The above question was answered in the affirmative in Bwanya in the context of extending the legal protection provided in terms of the MSSA to surviving life-partners and, so we respectfully submit, should again be answered in the affirmative in the context of developing the common law to recognise an ex lege duty of support between life-partners during the subsistence of the life- partnership.

As to the dilemmas associated with proving the existence of permanent life partnerships, the Constitutional Court in Bwanya held that:

“the horse has long bolted and … is a considerable distance away … because, in the context of extending to permanent same-sex life partners benefits previously enjoyed only by spouses, this Court has already adopted the stance that these problems are not insurmountable.” See Bwanya para 75. What the courts have done rather, it seems, was to develop factors to be taken into account when proving the existence of a life partnership, which factors are discussed in detail above.

Consequently, one may argue that insofar as the common law does not presently recognise such an ex lege duty between life partners, such lack of recognition is unconstitutional as it discriminates on the grounds of, inter alia, marital status and thus offends, inter alia, section 39(2) of the Constitution, which requires the courts to promote the spirit, purport and objects of the Bill of Rights when developing the common law.

As to how the development, in accordance with section 39(2) of the Constitution ought to take place, and the wider consequences of the proposed change on the relevant area of the law, it can be argued that the solution is simple: What is needed is a development of the common law to recognise a duty of support between life partners during the subsistence of the life-partnership, which duty occurs ex lege from the existence of the life-partnership. Such a development of the common law will enable life-partners to evoke the machinery of the Maintenance Act and the procedures of the Maintenance Courts to enforce maintenance obligations during the subsistence of the life- partnership. As mentioned above, section 2(1) of Maintenance Act states that the “provisions of this Act shall apply in respect of the legal duty of any person to maintain any other person irrespective of the nature of the relationship between those persons” and the content of this legal duty referred to in section 2(1) is determined by reference to the common law. Accordingly, the extension sought will enable life-partners to enforce the maintenance obligations of their spouses by means of the Maintenance Act.

A case in point is the earlier case of Khan v Khan 2005 (2) SA 272 (T), in which the question for consideration by the Court was whether or not there was a legal duty on the appellant, by virtue of the provisions of section 2(1) of the Maintenance Act, to maintain the respondent, to whom he had been married by Muslim rites, recognizing that the marriage was in fact a polygamous one (which, at that stage, was not legally recognised as a legal marriage). The Court held that the common-law duty of support was a flexible concept, developed and extended over time by the Courts, to cover a wide range of relationships. The Court continued and stated that the questions which Courts have considered in determining whether a particular relationship gave rise to a duty of support included whether the complainant required financial aid and whether the relationship between the parties created a duty to maintain. The Court further held that the preamble to the Maintenance Act emphasised the establishment of a fair and equitable maintenance system premised on the fundamental rights afforded in the Constitution, see Khan at 279D/E, that public policy considerations in the interpretation of legislation had changed with the advent of the Constitution and that the “purpose of the Maintenance Act would be frustrated rather than furthered if partners to a polygamous marriage were excluded from the protection offered by the said Act, just because the legal form of their relationship was not consistent with the Marriage Act.”

In conclusion it would therefore seem that the common law duty of support is flexible enough to be developed to extend to life-partners during the subsistence of the life-partnership and that the machinery of the Maintenance Act may be the appropriate avenue to provide life-partners with the mechanisms to enforce the said duty of support during the subsistence of the life-partnership.

In Part Three I will deal with recognising an ex lege duty of support between life partners following the termination of the life-partnership and in Part Four with the development of the common law in an application for interim relief.

Compiled by Bertus Preller, Divorce Law and Family Law attorney at Maurice Phillips Wisenberg in Cape Town, South Africa, to visit our Family Law Department’s website, click here, to learn more about Family and Divorce Law in South Africa, click here.