Court rules unmarried partner can’t get maintenance after government delays legislation on cohabiting couples
A Cape Town court case has shone a light on the disparity in the rights of married women and women in long-term cohabiting relationships after the Western Cape Division of the High Court of South Africa refused to grant a mother of three an interim maintenance order following the dissolution of her nine-year relationship.
The ruling, which touches on the constitutional rights of those in unmarried life partnerships and romantic relationships, is one that the Women’s Legal Centre believes will have far-reaching consequences for women across the country.
The case was brought by a woman identified only as Miss W, against her partner of nine years, Mr H. The couple began their relationship while still involved with previous partners, but eventually moved in together and cohabited until April 2022. They have three children together.
Miss W asked the court to order Mr H to provide maintenance of R56,000 in cash starting on 1 May 2022, plus payment of her medical aid and vehicle expenses. She also sought an order for Mr H to pay R1-million toward her legal fees. The Women’s Legal Centre had joined as amicus curiae (friends of the court), calling on the court to make a ruling that would advance the common law understanding of the rights of women in cohabiting life partnerships.
The case was heard by a full bench of the court, with judges Judy Cloete and Hayley Maud Slingers agreeing on the majority judgment and Judge Derek Wille dissenting. The majority judgment found that Miss W could not make a claim for interim maintenance, as would usually happen in divorce proceedings, because the current legislation around this type of relationship was not finalised.
Domestic Partnership Bill
The government had created a Domestic Partnership Bill in 2008 which would have clarified the picture, but the law has yet to be finalised through a parliamentary process.
The SA Law Commission (SALC) has also created the 2021 Single Marriage Statute Discussion paper, proposing two new laws – the Protected Relationships Bill and the Recognition and Registration of Marriages and Life Partnerships Bill. Neither law has been finalised.
“That there is express recognition by the legislature of the need to protect vulnerable life partnerships as amply demonstrated by the lengthy process upon which the SALC has embarked. That the issue is complex and policy-laden is probably one of the reasons why the process is taking as long as it is. But we can only assume that this is the case since the applicant took no steps to join or obtain evidence from the Minister of Justice and Constitutional Development (who is responsible for the work of the SALC) in these proceedings. This valuable evidence is thus not before us,” judges Cloete and Slingers wrote in the majority judgment.
The judges said there was a need for courts to employ a “balancing act between developing common law to conform with the Bill of Rights, while at the same time remaining aware that the major engine for law reform should be the legislature, not judiciary”.
The majority judgment found that a “permanent romantic relationship” could not be equated to a life partnership, and said Miss W had to first prove she had a familial relationship with Mr H before she could make a claim for maintenance.
The judges also said Miss W would not be left destitute if she did not receive the maintenance, as she had obtained an order in respect of R60,000 maintenance per month for her children, and all educational expenses and medical expenses as well as R28,500 for rental and other utilities.
Judge Wille, however, disagreed with his colleagues, saying the case had “constitutional ingredients” that needed to be considered along with the legal position.
“When dealing with a case with a constitutional flavour, one must guard against using ‘black letter law’. I believe the focus should instead be on the actual wrong that needs to be remedied,” he wrote.
Wille said the court should have considered the evidence that Miss W was entirely dependent on Mr H, having received R100,000 a month for expenses. The home she stayed in with her children was paid for through a trust that was registered by Mr H. Following the termination of the relationship, Mr H has drastically reduced maintenance payments, threatened to cut Miss W off, and threatened to remove her children.
Judge Wille also noted the evidence from Miss W that the parties “took part in a ceremony akin to a wedding”, they shared a home, and “the general public believed them to be married”.
“The common law recognises the reciprocal legal duty of support between spouses during the subsistence of a marriage and it is regarded as an invariable consequence of a marriage… However, parties in life partnerships are left with no remedy regarding financial relief during the subsistence and following the termination of the relationship.
“A core issue for me in this application is prejudice. It goes without saying that the application will suffer if the interim financial relief is not granted to her. This must be weighed against whether the respondent will suffer if interim relief is granted,” he said.
Judge Wille believed his view was supported by a 2021 Constitutional Court ruling in the case of Jane Bwanya vs The Master of the High Court, in which a life partner argued to inherit from the deceased estate of her life partner. The Concourt ruled in Bwanya’s favour, noting that in 2016 there were more than 3.2 million people in life partnerships other than marriage, and these relationships needed to be effectively equalised in the law.
Based on this, Judge Wille said, “it must be that permanent life partnerships deserve some constitutional and legal protection”.
Miss W’s lawyer, Bertus Preller, and Charlene May, an attorney at the Women’s Legal Centre, both believe the court should have sided with Wille.
Preller said his client plans to appeal against the ruling in the Supreme Court of Appeal and Constitutional Court.
“There are so many of these cases that come to us where women are left out in the cold,” he said.
May said the Women’s Legal Centre is concerned that the majority judgment will inform rulings in similar cases, leading to discrimination against unmarried life partners.
“For us, this is about a lack of recognition of cohabiting relationships and the impact that this has on the lives of women. There is a need to give recognition to relationships that fall outside of the conventional marriage system,” she said.
May was also concerned that the court cited the potential finalisation of legislation that had been on the cards since 2008:
“We are really saying that they don’t have to wait for the legislation. The court has the power to develop the common law.” DM