The Facts: An Unmarried Partner Seeks Interim Maintenance
P.A.L v R.J.T (17492/2023) [2026] ZAWCHC 99 (4 March 2026) came before Da Silva Salie J in the Western Cape Division of the High Court of South Africa and was both heard and delivered on 4 March 2026. The matter concerned an application for interim maintenance pendente lite arising from the termination of a life partnership that had endured for some twenty-nine years.
The parties commenced a romantic relationship in 1984. By 1991 they had entered into a life partnership, and two children were born of that relationship. Throughout the duration of the partnership, the parties conducted themselves in a manner consistent with marriage: they cohabited, jointly raised their children, and referred to one another as husband and wife. Significantly, the respondent described the applicant as his “lifelong partner” in his will and referred to her as his wife in various other documents.
The respondent was at all material times the primary breadwinner. The applicant did not engage in full-time employment and devoted herself principally to the care of the household and the children. The respondent supported the family financially for decades, including through regular cash payments and by discharging household expenses directly.
The parties’ life partnership came to an end in October 2020. The applicant alleged that upon termination, the respondent undertook in writing to continue maintaining her in the manner he had done throughout the subsistence of the partnership. She further averred that for approximately three years following termination, the respondent continued to provide maintenance in accordance with those historical patterns. He subsequently reduced and ultimately ceased certain of those payments, prompting the applicant to institute action proceedings in which she claims maintenance pursuant to the alleged written undertaking, and alternatively on the basis of reciprocal duties of support arising from a permanent life partnership.
Pending the outcome of that action, she approached the Court for interim maintenance. An interim order had previously been granted by agreement on 2 December 2025 providing for certain payments pending the return date. The respondent, who resides in Tanzania and is accordingly a peregrinus, opposed the continuation and expansion of that relief. He elected not to file an answering affidavit, choosing instead to raise legal objections by way of a notice in terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court. As a consequence of that election, the applicant’s material factual averments stood largely uncontested for the purposes of the application.
The Legal Lacuna: Why Unmarried Partners Were Left Without a Remedy
For decades, South African law drew a firm and largely unforgiving distinction between married spouses and unmarried life partners. All married spouses enjoy reciprocal duties of support that arise as an automatic and invariable consequence of marriage by operation of law. Unmarried partners in permanent life partnerships enjoyed no such automatic protection, and it is precisely this gap in the law that the applicant in P.A.L v R.J.T sought to bridge.
The trajectory of the law in this regard has been neither linear nor settled. The first significant constitutional engagement with the position of permanent opposite-sex life partners arose in Volks NO v Robinson and Others [2005] ZACC 2; 2005 (5) BCLR 446 (CC), where the minority judgment identified two categories of cohabitants deserving of legal protection: firstly, those who had freely committed themselves to a life of interdependence through express or tacit undertakings of mutual support, and secondly, those in relationships whose very nature produced dependency in the financially weaker and more vulnerable partner. The majority in the Volks case, however, declined to develop the law further, and life partners were left without a remedy.
The landscape shifted meaningfully with Bwanya v The Master of the High Court 2022 (3) SA 250 (CC), where the Constitutional Court recognised that permanent life partnerships are capable of attracting reciprocal duties of support and affirmed that the common law may be developed where constitutionally required to afford appropriate protection to such partners. Critically, the minority judgment in the Bwanya case remarked that the exclusion of permanent life partnerships was something that could be addressed incrementally through the development of the common law to meet identifiable needs, rather than through a wholesale frontal challenge to the existing legislative framework.
It was against this backdrop that the full bench of the Western Cape High Court was confronted with E W v V H 2023 (4) SA 123 (WCC). The majority, per Cloete J and Slingers J, held that the common law did not yet recognise a legally enforceable duty of support between life partners following termination of their relationship, and declined to grant interim financial relief. The majority reserved the fundamental question for the trial court, holding that it was in that forum that the factual dispute — whether a permanent life partnership with reciprocal duties of support existed — could be properly canvassed.
Wille J, however, dissented. His minority judgment in the E W case represents the most significant judicial voice in favour of incremental development of the common law in this area prior to P.A.L v R.J.T. Wille J held that when developing the common law within a constitutional framework, a court must engage holistically with all relevant constitutional provisions and must not simply apply traditional legal principles in a vacuum. He reasoned that the exclusion of permanent life partners from maintenance protection constituted unconstitutional discrimination on the grounds of both marital status and gender, given that the financially weaker partner — in most instances a woman — was left entirely without recourse upon termination of the relationship. Significantly, Wille J found that the prejudice to the applicant substantially outweighed any prejudice to the respondent and that, properly analysed, the case was essentially about interim financial relief in a constitutional context. He would accordingly have granted the interim order.
Wille J was at pains to clarify that what was sought was not a radical overhaul of marriage legislation. The applicant sought only maintenance protection analogous to that afforded to spouses — not division, forfeiture, or redistribution of assets, and not a declaration that the life partnership constituted a marriage for all purposes. It was this careful and incremental framing that Da Silva Salie J in P.A.L v R.J.T effectively adopted, noting that it was not necessary at the interim stage to determine finally whether an enforceable life partnership with a maintenance obligation in fact existed, that question being properly reserved for the trial court.
Constitutional Imperatives: Equality, Dignity and the Development of the Common Law
The constitutional framework within which Da Silva Salie J was required to operate in P.A.L v R.J.T is one that places an affirmative obligation on courts to ensure that the common law keeps pace with the transformative vision of The Constitution of the Republic of South Africa, 1996. That obligation does not arise at the discretion of the court — it is mandatory. Section 39(2) of the Constitution enjoins every court, when developing the common law, to promote the spirit, purport and objects of the Bill of Rights. Where the common law falls short of that standard, judicial development is not merely permissible but constitutionally compelled.
Two foundational rights are engaged directly in matters of this nature. Section 9 of the Constitution guarantees the right to equality and equal protection before the law, and prohibits unfair discrimination on grounds that include marital status, gender and sex. The position of a financially dependent partner in a permanent life partnership, who has structured her entire existence around a relationship of decades and yet finds herself stripped of all legal protection upon its termination, engages each of those grounds simultaneously. She is treated less favourably than a married spouse for no reason other than the form her relationship took — a form that, as Wille J observed in the minority judgment in the E W case, may itself have been the product not of free choice but of unequal bargaining power, economic dependence, or a mistaken belief that the parties were in a legally recognised union.
Section 10 of the Constitution guarantees the right to dignity. It is difficult to reconcile the complete denial of interim maintenance to a partner who has devoted nearly three decades to a shared domestic life with the constitutional injunction that every person’s inherent dignity be respected and protected. The applicant in P.A.L v R.J.T had no independent income, no assets of her own, and had historically been maintained entirely by the respondent. To leave her without any recourse pending the resolution of a trial — a trial that by its nature may take years to conclude — would be to render the constitutional protection of dignity hollow in precisely the circumstances where it is most urgently required.
The court in P.A.L v R.J.T was not required at the interim stage to resolve the larger constitutional question definitively. Da Silva Salie J correctly identified that the incremental approach — recognising a prima facie right sufficient to ground interim relief while reserving the final determination of the common law’s content for the trial court — is the constitutionally appropriate methodology. This approach is consistent with the reasoning of the Constitutional Court in the Bwanya case, which affirmed that development of the common law in this area should proceed contextually and on the basis of the facts before the court, rather than through sweeping declaratory pronouncements. It also reflects the manner in which section 173 of the Constitution preserves the inherent jurisdiction of the High Court to protect litigants and regulate its own process in a manner consistent with the Constitution.
What P.A.L v R.J.T demonstrates, above all else, is that the constitutional imperatives of equality and dignity do not pause while a litigant awaits trial. Interim relief is not a peripheral procedural indulgence — it is, in cases of genuine financial dependency, a constitutional necessity.
The Court’s Reasoning: Extending Rule 43 Jurisdiction to Life Partners
A preliminary but fundamental point requires emphasis before engaging with the substance of Da Silva Salie J’s reasoning. The application in P.A.L v R.J.T was not, strictly speaking, brought under Rule 43 of the Uniform Rules of Court. That rule, by its terms, applies to proceedings between spouses in a pending divorce action. The applicant and respondent were never married. The relief sought was described throughout as an application “akin to” a Rule 43 application, grounded in the court’s inherent jurisdiction and the ancillary jurisdiction arising from the pending action under case number 17492/2023. This distinction is not merely semantic — it reflects the very legal lacuna that the case was called upon to address, and it underscores the significance of the court’s willingness to grant interim maintenance relief in the absence of the procedural vehicle that married spouses routinely employ.
On the jurisdictional objection, Da Silva Salie J was unpersuaded by the respondent’s reliance on his status as a peregrinus residing in Tanzania. The court applied the well-established principle that where a court has jurisdiction in the principal action, it retains jurisdiction over ancillary and interlocutory matters arising therefrom. The respondent had filed a counter-claim in the main proceedings and had consented to the terms of the interim order previously granted on 2 December 2025. A litigant who submits to the jurisdiction of the court in the main action cannot, as the court put it, approbate and reprobate by seeking to resist jurisdiction only when it suits him to do so. The jurisdictional objection was accordingly dismissed without difficulty.
The respondent’s election to file a notice in terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court rather than an answering affidavit proved equally unavailing. That rule permits a respondent to raise a point of law in lieu of factual engagement, but it does not provide a mechanism to avoid confronting factual allegations that are central to the dispute. The court correctly identified that the questions of whether a written maintenance undertaking had been given, and whether the life partnership attracted reciprocal duties of support, were inherently factual in nature. In the absence of an answering affidavit, the applicant’s material factual averments stood uncontested for the purposes of the interim application. The respondent’s further contention that the application was rendered “academic” by reason of a contemplated amendment to the particulars of claim was similarly rejected — a stated intention to amend does not suspend proceedings, and until a formal amendment is effected in accordance with the Rules, the pleadings stand as they exist.
On the requirements for interim relief, the court applied the familiar four-stage enquiry. On prima facie right, Da Silva Salie J drew directly on the Bwanya jurisprudence, holding that the applicant’s uncontested averments — a relationship of nearly three decades, shared children, shared residence, financial interdependence, public presentation as spouses, and continued maintenance post-termination — were sufficient to establish a prima facie right, though one open to some doubt. Critically, the court emphasised that it was not required at the interim stage to determine whether an enforceable duty of support in fact existed — that question was expressly reserved for the trial court. The court cited E W v V H 2023 (4) SA 123 (WCC) for the proposition that it is the trial court that is best placed to make the factual findings upon which entitlement to maintenance will ultimately depend.
On irreparable harm, the cessation of established maintenance in circumstances of total financial dependency was found to constitute a sufficient apprehension of harm. The respondent had placed no evidence before the court to contest either his historical pattern of financial support or his current capacity to pay — a forensic silence that inevitably weighed against him. On the balance of convenience, the preservation of the status quo pending trial plainly favoured the applicant, particularly given that an interim order had already been granted by agreement. On the absence of an alternative remedy, the court was direct: interim relief exists precisely to bridge the period pending finalisation of the main action, and there was no other satisfactory remedy available to the applicant in the interim.
The Implications: What P.A.L v R.J.T Means for Cohabiting Couples and Family Law Practice
The significance of P.A.L v R.J.T lies not only in the relief granted but in what it represents as a matter of legal development. For the first time in South African legal history, a court has granted interim maintenance to an unmarried partner in a permanent opposite-sex life partnership pending the finalisation of an action. That outcome was not inevitable. It required a judge willing to engage seriously with the constitutional imperatives at stake and to apply the incremental methodology endorsed by the Constitutional Court in the Bwanya case with both rigour and sensitivity to the human realities before the court.
The contrast with the majority judgment in the E W case warrants careful professional reflection. With the greatest respect to Cloete J and Slingers J, whose learning and contribution to the jurisprudence in this area is not in question, the majority’s approach in the E W case may with hindsight be seen to have prioritised doctrinal caution over constitutional imperative. The majority’s decision to decline interim relief and reserve all questions for trial, while procedurally defensible in isolation, had the practical consequence of leaving a financially dependent applicant — who had organised her entire life around a long-term relationship — without any protection for the duration of protracted litigation. It is respectfully submitted that this outcome sits uneasily with the injunction in section 39(2) of the Constitution to develop the common law in a manner that promotes the spirit, purport and objects of the Bill of Rights. The incremental approach that Wille J advocated in his minority judgment in the E W case, and that Da Silva Salie J has now applied in P.A.L v R.J.T, better reflects the constitutional methodology that the Bwanya case endorsed. It is also, it is submitted, more faithful to the lived reality of women who find themselves in positions of acute financial vulnerability following the breakdown of long-term relationships that they did not structure and could not unilaterally formalise.
For practitioners, P.A.L v R.J.T opens a procedural pathway that previously did not exist in clear terms. A financially dependent partner in a terminated permanent opposite-sex life partnership may now approach the High Court for interim maintenance pending the finalisation of an action, relying on the court’s inherent jurisdiction and ancillary jurisdiction arising from the pending proceedings. The application need not be framed as a frontal constitutional challenge to the existing legislative framework. What is required is a carefully pleaded founding affidavit establishing the hallmarks of a permanent life partnership — duration, shared residence, shared children where applicable, financial interdependence, public presentation as partners, and continued support post-termination — together with evidence of financial dependency and the respondent’s capacity to pay.
It must however be emphasised that P.A.L v R.J.T is not reportable, and its precedential weight is accordingly limited in formal terms. The judgment does not finally determine whether the common law recognises an enforceable duty of support between permanent life partners following termination of their relationship — that question remains open for the trial court. Practitioners should therefore approach each matter on its own facts and resist the temptation to treat this judgment as settling the underlying substantive law. What it does settle, for now, is that the threshold for interim relief in appropriate cases has been crossed, and that a court will not permit the absence of a formal marriage certificate to operate as an absolute bar to protection where the constitutional rights to equality and dignity are genuinely engaged.
The inevitable trajectory of this jurisprudence points toward the Constitutional Court, where the substantive question of whether the common law recognises a post-termination duty of support between permanent life partners must ultimately be resolved with finality, clarity and binding authority. Until that occurs, P.A.L v R.J.T stands as an important waypoint on that journey — a judgment that, in the words of Wille J in the E W case, addresses the real problem: that South African law, as a whole, has thus far failed adequately to govern the rights of people in permanent life partnerships.
Questions and Answers
What is the significance of P.A.L v R.J.T in South African family law?
It is the first judgment in South African legal history in which a court granted interim maintenance to an unmarried partner in a permanent opposite-sex life partnership pending the finalisation of an action. It represents a meaningful step in the incremental development of the common law to afford protection to financially dependent life partners.
Was the application in P.A.L v R.J.T brought under Rule 43 of the Uniform Rules of Court?
No. Rule 43 applies to proceedings between spouses in a pending divorce action. Since the parties were never married, the application was brought under the court’s inherent jurisdiction and the ancillary jurisdiction arising from the pending action. It was described throughout as an application akin to a Rule 43 application, but it was not technically a Rule 43 application.
On what two legal bases did the applicant found her claim for interim maintenance?
The applicant relied firstly on an alleged express written undertaking by the respondent to continue maintaining her following termination of the life partnership, and secondly, in the alternative, on reciprocal duties of support arising from the existence of a permanent life partnership.
What is the legal standard an applicant must meet to obtain interim relief of this nature?
The applicant must establish a prima facie right, though one open to some doubt; a well-grounded apprehension of irreparable harm if interim relief is refused; that the balance of convenience favours the granting of relief; and the absence of any other satisfactory alternative remedy pending the finalisation of the main action.
What did the court hold regarding the standard of proof required at the interim stage?
The court held that the applicant was not required at the interim stage to prove her claim on a balance of probabilities. She was required only to demonstrate a prima facie right, though open to some doubt. The question of whether an enforceable duty of support in fact existed was expressly reserved for determination by the trial court.
What role did the respondent’s failure to file an answering affidavit play in the court’s reasoning?
It played a significant role. By electing to file a notice in terms of Rule 6(5)(d)(iii) rather than an answering affidavit, the respondent left the applicant’s material factual averments uncontested. The court held that those uncontested averments stood for the purposes of the interim application, which inevitably strengthened the applicant’s case on the requirements for interim relief.
Can a respondent rely on Rule 6(5)(d)(iii) to avoid engaging with factual allegations central to a dispute?
No. The court confirmed that Rule 6(5)(d)(iii) is intended to permit a respondent to raise a point of law and does not provide a procedural mechanism to avoid engaging with factual allegations that are central to the dispute. Where the questions in issue are inherently factual in nature, a respondent who wishes to resist the relief must file an answering affidavit.
How did the court deal with the respondent’s argument that the application was academic in light of a contemplated amendment to the particulars of claim?
The court rejected that argument firmly. A stated intention to amend pleadings does not suspend proceedings and does not deprive the court of jurisdiction to grant interim relief. Until a formal amendment is effected in accordance with the Rules, the pleadings stand as they exist and the court is obliged to determine interlocutory relief on that basis.
How did the court resolve the jurisdictional objection raised by the respondent as a peregrinus?
The court applied the established principle that where a court has jurisdiction in the principal action, it retains jurisdiction over ancillary and interlocutory matters arising therefrom. The respondent had filed a counter-claim in the main proceedings and had previously consented to an interim order. A litigant who submits to the jurisdiction of a court in the main action cannot approbate and reprobate by resisting jurisdiction in respect of ancillary relief.
What factors did the court identify as establishing a prima facie right on the papers before it?
The court identified a relationship of nearly three decades, the existence of shared children, shared residence, financial interdependence, the public presentation of the parties as spouses, and the respondent’s continuation of maintenance payments for approximately three years following the termination of the partnership in October 2020.
What is the constitutional basis for developing the common law to protect permanent life partners?
Section 39(2) of the Constitution obliges courts, when developing the common law, to promote the spirit, purport and objects of the Bill of Rights. Section 9 prohibits unfair discrimination on grounds including marital status, gender and sex. Section 10 protects the right to dignity. Where the common law fails to afford protection to a financially dependent life partner, it engages all three of these constitutional provisions simultaneously and development of the law is constitutionally compelled rather than merely permissible.
What did the Constitutional Court hold in Bwanya v The Master of the High Court that was relevant to the court’s reasoning in P.A.L v R.J.T?
The Constitutional Court in the Bwanya case affirmed that permanent life partnerships are capable of attracting reciprocal duties of support and confirmed that the common law may and must be developed where constitutionally required to afford appropriate protection to life partners. The minority judgment further endorsed the incremental development of the common law to meet identifiable needs, rather than requiring a frontal challenge to existing legislation.
Does P.A.L v R.J.T finally determine that South African common law recognises an enforceable duty of support between permanent life partners after termination of their relationship?
No. The court was explicit on this point. The judgment determines only that the applicant established entitlement to interim relief on the papers before the court. The substantive question of whether the common law recognises a post-termination duty of support between permanent life partners remains open and is reserved for final determination by the trial court.
What are the practical implications of P.A.L v R.J.T for legal practitioners advising clients in permanent life partnerships?
Practitioners should advise financially dependent partners that an application for interim maintenance pending the finalisation of a main action is now a viable procedural option, provided that the hallmarks of a permanent life partnership can be established on the papers. The founding affidavit must carefully address the duration of the relationship, shared residence, financial interdependence, the respondent’s capacity to pay, and evidence of any undertaking to provide support. Practitioners should however caution clients that the underlying substantive law remains unsettled pending a definitive pronouncement from the Constitutional Court.
What is the likely future trajectory of this area of the law following P.A.L v R.J.T?
The judgment points inevitably toward the Constitutional Court, where the question of whether the common law recognises a legally enforceable post-termination duty of support between permanent life partners must be resolved with finality and binding authority. Until such time as that occurs, P.A.L v R.J.T serves as an important jurisprudential waypoint, confirming that the constitutional rights to equality and dignity preclude the courts from treating the absence of a formal marriage as an absolute bar to interim protection in appropriate cases.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator and Accrual Calculator.
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