South Africa must be the only country in the world where – on paper, at least – same-sex couples enjoy more legal protection than heterosexual couples. Before same-sex marriage was legalised in South Africa, the Constitutional Court extended many of the legal rights and privileges associated with marriage to some same-sex couples. However, influenced by a rather moralistic view of marriage, it declined to extend the appropriate legal protection to similarly situated unmarried heterosexual couples. Last week the Constitutional Court was once again confronted by this failure, but only the minority decision addressed the problem head-on.
Before Parliament extended the right to marry to same-sex couples, the Constitutional Court in several judgments extended some of the rights enjoyed by married different-sex couples to unmarried same-sex partners in permanent same-sex relationships in which the partners have undertaken reciprocal duties of support.
For example, in Gory v Kolver (which was decided after the Constitutional Court ordered Parliament to extend full marriage rights to same-sex couples but before Parliament did so in terms of the Civil Union Act), the Constitutional Court held that partners in a permanent same-sex relationship could inherit from one another even in the absence of a will. This was because – at the time – such same-sex couples were not yet legally entitled to marry, which meant that they were being unfairly discriminated against.
To fix the problem the court read words into the Intestate Succession Act (ISA) to protect individuals in permanent same-sex relationships. Section 1(1) of ISA then read as follows (with the added words in italics):
“If after the commencement of this Act a person (hereinafter referred to as the ‘deceased’) dies intestate, either wholly or in part, and is survived by a spouse [or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support], but not by a descendant, such spouse [or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support] shall inherit the intestate estate.”
In Gory v Kolver the court also said that the mere legalisation of same-sex marriage would not undo the effect of the cases in which the Constitutional Court extended rights traditionally associated with heterosexual marriage to permanent same-sex partners. Unless Parliament changed the legislation to take away the rights granted by the court to unmarried permanent same-sex partners, they would continue to enjoy these rights. This is so, even though the legalisation of same-sex marriage meant that same-sex couples would now enjoy more extensive legal protection than heterosexual couples.
In Laubscher N.O. v Duplan and Another the Constitutional Court last week confirmed this position in another case dealing with the right of unmarried permanent same-sex partners (in which the partners had undertaken reciprocal duties of support) to inherit from one another.
If you are in a different-sex relationship and your partner fails to make a will, you are not entitled to inherit anything from him or her. If you are in the appropriate type of same-sex relationship and you are not married, you are legally entitled to inherit from your partner.
As Parliament has failed to extend the right to inherit without a will to permanent unmarried heterosexual couples, same-sex couples enjoy more inheritance rights than heterosexual couples.
In the past the Constitutional Court had been reluctant to extend similar legal protection to unmarried partners in heterosexual relationships. In the notorious case of Volks v Robinson the majority rejected the claim by Mrs Robinson that she should be entitled to claim maintenance from the estate of her deceased partner (Mr Volks) in terms of the Maintenance of Surviving Spouses Act. The conclusion of the court was that “it is not unfair to make a distinction between survivors of a marriage on the one hand, and survivors of a heterosexual cohabitation relationship on the other. In the context of the provision for maintenance of the survivor of a marriage by the estate of the deceased, it is entirely appropriate not to impose a duty upon the estate where none arose by operation of law during the lifetime of the deceased. Such an imposition would be incongruous, unfair, irrational and untenable.”
This conclusion was, to say the least, surprising. Section 9(3) of the Constitution prohibits unfair discrimination on any ground including on the ground of marital status. Yet, the majority in Volks v Robinson held that: “the law may distinguish between married people and unmarried people… In the context of certain laws there would often be some historical and logical justification for discriminating between married and unmarried persons and the protection of the institution of marriage is a legitimate area for the law to concern itself with… The law may in appropriate circumstances accord benefits to married people which it does not accord to unmarried people.”
In the case under discussion the majority (in a judgment penned by acting Justice Mbha) declined to revisit the sexist reasoning in the Volks v Robinson judgment. This was done for technical reasons which are not relevant for the current discussion.
(As an aside, in Laubscher N.O. v Duplan and Another the majority also wrongly – and in a somewhat demeaning way – referred to same-sex marriages concluded in terms of the Civil Union Act in inverted commas as “marriages” or as civil unions – as if such unions are not fully fledged marriages that are identical to different sex marriages. This suggests some reluctance on the part of the court to accept the equal status of marriages concluded under the Civil Union Act, even though the Act explicitly recognises that such marriages may be called marriages and that they attract the same legal rights and duties as other marriages.)
In the minority judgment, penned by Justice Froneman, he decided to meet the problem of Volks v Robinson head-on, and concluded that Volks cannot stand. It is seldom that a court reverses a previous judgment on the basis that it is clearly wrong. Justice Froneman should be commended for attempting to do so here to address the problem that unmarried heterosexual couples in committed long-term relationships are being discriminated against.
The minority accepts that it is wrong to assume (as the Constitutional Court did in Volks v Robinson) that the legislature could discriminate against unmarried couples even when the relationship of that unmarried couple is permanent in nature and even when the couple has accepted that they have a reciprocal duty of support towards each other.
Why make a distinction merely because in one case a couple has a marriage certificate and in another they do not? Given the fact that there are many reasons why couples do not get married and given that this decision can be dictated or heavily influenced by the partner with the economic and social power in the relationship, it may discriminate against one or both partners when legal protection is not extended to those unmarried heterosexual couples whose relationship is marriage-like.
Noting that critics call this a “marriage-centric” approach, justice Froneman also accepts that underlying this “marriage-centric” approach is an unarticulated premise which is constitutionally problematic. The minority quotes from an academic article which explains the problem as follows:
“The court makes no attempt to explain the reasoning behind this concession, which only makes sense on the supposition that the court regards marriage in terms of religious law as morally superior to other kinds of informal partnerships: religious marriage, it appears, is better than no marriage. It seems that it is this unarticulated moralistic belief that leads the court to resort to a one-off expansion of the concept of ‘marriage’ beyond the de jure concept so as to favour religious unions.”
As this criticism is valid and, as Volks “reflected views of its time, not inclusive enough in the present social context”, the minority held that it was time to revisit these assumptions that marriage is morally superior to non-marriage.
The best way to do so is to admit that some relationships are permanent in nature and create a reciprocal duty of support which must be recognised and protected by the law, whether the couple is married or whether the couple is in an unmarried same-sex or different sex relationship.
But as the minority did not hold sway, the legal situation remains that same-sex couples enjoy better legal protection than heterosexual couples and that partners in the latter are not appropriately protected.
When the Civil Union Act was drafted it originally included an entire section to regulate and protect unmarried partners in stable, permanent relationships. But this section was deleted when the Civil Union Bill was rewritten to ensure it complies with the Constitutional Court judgment on same-sex marriage – and the legislature has shown little appetite since then to address the problem.
What is required is legislative intervention by Parliament to eradicate this unfair discrimination. The discrimination occurs directly based on marital status and indirectly based on sex and gender. (In a patriarchal society like ours, women often have less social and economic power in a different-sex relationship and when the law fails to intervene it indirectly discriminates against women.)
Is it too much to ask that the Department of Women will take on this complex task? DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
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