In an earlier article I wrote about a landmark case, due to be heard by 3 Judges in the Cape High Court on 20 January 2023. In the application, akin to a Rule 43 application, the Applicant will seek that, pending the final determination of an action in which she claims against the Respondent for the provision of her reasonable maintenance needs, insofar as she is not able to provide therefor from her own means and earnings, following the termination of their permanent opposite-sex life-partnership (“the pending action”), the Respondent be ordered to maintain the Applicant in the interim and to make an initial contribution towards her costs in the pending action. This article is one of a four part series.
FACTS OF THE CASE
The facts of the case are briefly as follows. The parties were involved in an opposite sex romantic relationship for a period of more than nine years, whereafter the man (Respondent) left the family home. Three minor children were born from the relationship. The parties cohabited from 2015 following the birth of their first child and the man took care of his partner, being the mother of their children (Applicant). They were completely financially dependent on him. An amount of R 100 000 was historically paid by the man for household, personal maintenance, and the maintenance of the minor children. Although the relationship between the parties had effectively broken down by October/November 2021, following an incident of alleged sexual assault perpetrated by the Respondent against the Applicant, she was fearful of terminating the relationship since the Respondent frequently threatened that if she left him, she would be left destitute and “end up on the street”. On one such occasion, the Respondent threatened to “out-litigate” the Applicant and told her that he was “willing to spend millions on lawyers” to ensure that she does “not get a cent” from him, which the Respondent does not deny having said, but alleges that the Applicant “provoked” him and that it was “a figure of speech”, whatever that might mean.
Following the final termination of the relationship in April 2022, the Respondent has made good on these threats as follows:
THE LAW ON PERMANENT LIFE PARTNERSHIPS
Many partners, predominantly women, are left destitute and without legal recourse when their life-partnership (Common Law Marriage) terminates, or their partners cease to maintain them.
This issue affects a substantial number of South Africans, particularly vulnerable women, and some of these women find themselves in permanent life partnerships not out of true choice. The reality is that as at 2016, 3.2 million South Africans were cohabiting outside of marriage and that number was reported to be increasing. Thus, we find a substantial number of families within this category.
In the case of Bwanya v The Master of the High Court and Others 2022 (3) SA 250 (CC) (“Bwanya”) in the Constitutional Court, the Women’s Legal Centre Trust (“the WLCT”), who acted as an amicus curiae presented evidence based on narratives by several women about what it was that underlay each of their permanent life partnerships. The reasons differed and included: the women’s lack of bargaining power in the relationship; the dependence of women and children, if there be any, on the financial strength of the men in the relationships; and the mistaken belief by one or both partners in a permanent life partnership that they are in a legally binding “common law” marriage.
The WLCT argued as follows:
“…women in permanent opposite-sex life partnerships are also vulnerable. Some – even if desirous of getting married – cannot because their men [male] partners’ choice is not to get married. And there is nothing the women [female] partners can do about it. And “[t]he reality has been and still in large measure continues to be that in our patriarchal culture men find it easier than women to receive income and acquire property”. That gives men in the partnerships power and exacerbates the plight of women. This vulnerable group is deserving of legal protection.”
The common law recognises an ex lege reciprocal duty of support between spouses during the subsistence of a marriage and it is regarded as an invariable consequence of marriage, arising from the consortium omnis vitae between spouses. In EH v SH 2012 4 SA 164 (SCA) paras 12 and 13; Customary law establishes duties of support between family members which extend far beyond those found in the common law. Wives and children born in wedlock are the responsibility of paternal families while unmarried women and their children are the responsibility of maternal families.
During the subsistence of the marriage, spouses are entitled to evoke the machinery of the Maintenance Act 99 of 1998 (“the Maintenance Act”) to enforce maintenance obligations, as 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; and
following the breakdown of a marriage and the institution of divorce proceedings, but prior to the termination thereof through divorce, spouses in marriages can enforce the common law duty of support on an interim basis by means of the procedures provided for in Rule 43 of the Uniform Rules of Court.
Secondly, as the common law reciprocal duty of support between spouses in a marriage terminates upon the death of either of the spouses, see (Glazer v Glazer N.O. 1963 (4) SA 694 (A)), rendering a surviving spouse in need incapable of claiming support against the estate of the deceased spouse in terms of the common law, the Maintenance of Surviving Spouses Act (“the MSSA”) was enacted to close this gap in the common law, see (Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC)) (“Volks”) paras 36-39 and Bwanya par 36. The MSSA “is intended to provide for the reasonable maintenance needs of parties to a marriage that is dissolved by the death of one of them” and the aim is to extend an invariable consequence of marriage beyond the death of one of the parties see, Volks par 38; Bwanya par 36.
The application of the MSSA has been gradually extended as follows:
Thirdly, the common law reciprocal duty of support between spouses, during the subsistence of a marriage, does not extend beyond the termination of the marriage by divorce and, to prevent spouses from being left destitute following termination by divorce, section 7 of the Divorce Act 70 of 1979 (“the Divorce Act”), entitles spouses to claim future maintenance upon termination of marriages. Section 7 of the Divorce Act applies to civil marriages and civil unions concluded in terms of the Marriage Act 25 of 1961 (heterosexual monogamous marriages) and the Civil Union Act 17 of 2006. When registered customary marriages (registered monogamous or polygamous African customary marriages) end in divorce, the Recognition of Customary Marriages Act 120 of 1998 determines that a court dissolving the marriage may make an order for post-divorce maintenance and the court granting such a dissolution has the powers contemplated in section 7 of the Divorce Act, see: Section 8(4) of the Recognition of Customary Marriages Act 120 of 1998 which in effect creates a right to post-divorce spousal maintenance which did not originally exist in customary law. However, parties in life-partnerships, (and, to an extent, parties in Muslim marriages) are “left out in the cold” when it comes to maintenance during the subsistence and following the termination of their relationships.
The Applicant in the 20 January 2023 case instituted an action against the Respondent in which she averred that the relationship which endured with the Respondent constituted a permanent life-partnership, the existence of which gives rise to an ex lege duty of support between life-partners during the subsistence of the life-partnership, alternatively, insofar as the common law does not currently recognise an ex lege duty of support between life-partners during the subsistence of the life- partnership, the lack of recognition is constitutionally unacceptable, as it discriminates on the basis of, inter alia, marital status and gender, and accordingly, the Court has a duty to develop the common law in a manner that promotes the spirit, purport and objects of the Bill of Rights by recognising an ex lege duty of support for unmarried permanent life partners during the subsistence of the life-partnership.
On account of the existence of the ex lege duty of support during the subsistence of the life-partnership, life-partners should have recourse to claim maintenance from one another following the termination of the said life-partnership, insofar as they are not able to provide therefor from their own means and earnings, and the lack of recourse is constitutionally unacceptable, as it discriminates on the basis of, inter alia, marital status and gender and constitutes unequal protection before the law.
A Court has a duty to develop the common law – in a manner that promotes the spirit, purport and objects of the Bill of Rights and/or to give effect to a right in the Bill of Rights to the extent that the common law and legislation do not adequately do so – by recognising an ex lege duty of support for unmarried permanent life partners following the termination of the said life-partnership. Following the institution of the action, the Applicant launched this application for interim maintenance, pending the determination of the action, as well as a contribution to her costs in pursuing the action for maintenance.
DEVELOPING THE COMMON LAW: GENERAL PRINCIPLES
Judges are the custodians of the common law and the architects of its development. They are “protectors and expounders” of the common law, and all 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”. See: (S v Thebus and Another 2003 (6) SA 505 (CC)) (“Thebus”) par 31. See also section 172 of the Constitution.
Section 39(2) of the Constitution requires the courts to promote the spirit, purport and objects of the Bill of Rights when developing the common law. Section 39(2) of the Constitution provides: ‘When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.‘ Section 39(2) makes it plain that when a court embarks upon a course of developing the common law, it is obliged to promote the spirit, purport and objects of the Bill of Rights. See Thebus par 25. In Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674, Chaskalson P observes that:
“The common law supplements the provisions of the written Constitution but derives its force from it. It must be developed to fulfil the purposes of the Constitution and the legal order that it proclaims – thus, the command that law be developed and interpreted by the courts to promote the ”spirit, purport and objects of the Bill of Rights”. This ensures that the common law will evolve within the framework of the Constitution consistently with the basic norms of the legal order that it establishes. There is, however, only one system of law and within that system the Constitution is the supreme law with which all other law must comply.” See: Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 par [49].
The general approach to the development of the common law under section 39(2) of the Constitution is that a court must: (1) determine what the existing common-law position is; (2) consider its underlying rationale; (3) enquire whether the current common-law position offends section 39(2) of the Constitution; (4) if it does so offend, consider how development in accordance with section 39(2) ought to take place; and (5) consider the wider consequences of the proposed change on the relevant area of the law. See, Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and Another 2016 (1) SA 621 (CC) par [39]; MEC for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) (“MEC for Health v DZ”) at 347C-D.
The common law may also be developed when applying a provision of the Bill of Rights to a natural person, in order to give effect to the right to the extent that legislation does not do so. This is in terms of s 8(2) of the Constitution, which provides for the so-called ‘horizontal’ application of the Bill of Rights, see also MEC for Health v DZ at 348C.
As mentioned above, it is the Applicant’s case that the relationship which endured with the Respondent constituted a permanent life-partnership, the existence of which gave rise to an ex lege duty of support between them during the subsistence of their life-partnership, alternatively, insofar as the common law does not currently recognise an ex lege duty of support between life-partners during the subsistence of the life-partnership, the lack of recognition is constitutionally unacceptable, as it discriminates on the basis of, inter alia, marital status and gender. The Applicant’s case is further that the lack of legal recourse of life-partners to claim maintenance from one another following the termination of the said life-partnership, is also constitutionally unacceptable, as it discriminates on the basis of, inter alia, marital status and gender and constitutes unequal protection before the law. Accordingly, the Applicant will argue that the Court has a duty to develop the common law – in a manner that promotes the spirit, purport and objects of the Bill of Rights and/or to give effect to a right in the Bill of Rights to the extent that the common law and legislation do not adequately do so – by recognising an ex lege duty of support for unmarried permanent life partners during the subsistence of the life-partnership and following the termination thereof.
As far back as 2001, when the South African Law Reform Commission (“SALRC”) released “Issue Paper 17” as part of its then” Project 118”, the State recognised an obligation for it to recognise and regulate domestic partnerships. A key feature of “Issue Paper 17” was the question of the recognition and regulation of domestic partnerships.
In August 2003, “Discussion Paper 104” was released by the SALRC and this included recommendations which included the adoption of legislation that would recognise the relationship between partners in conjugal relationships and persons who were not already involved in another marriage or a registered partnership relationship.
In March 2006, the SALRC published “Project 118: Report on Domestic Partnerships” and a key observation from that report was that while common law rules provide a certain degree of regulation and protection, they do not provide a comprehensive, certain and coherent set of principles to protect cohabitants, no matter how long standing the relationship may be. The SALRC identified this as a challenge that a legislative remedy needed to resolve. The SALRC recommended that a statutory duty of support be imposed upon domestic partners, which statutory duty would serve as a ground for maintenance during the partnership and once the partnership has ended through death or termination.
This process led to the publication of the Domestic Partnerships Bill, 2008 (published in the Government Gazette No. 30663 dated 14 January 2008) for public comment and engagement in 2008. The draft Domestic Partnership Bill specifically made provision in section 18 thereof for a Court to “make an order which is just and equitable in respect of the maintenance by one registered partner to the other for any specified period or until the death or remarriage of the registered partner in whose favour the order is given…”.
That there was recognition on the part of the State that legislation needed to be developed and enacted, cannot be in any doubt, it is submitted, but for a period of over 13 years nothing has been done to protect the rights of those who bear the brunt of the non-recognition – i.e. predominantly women.
One may well argue that it is important to adopt an intersectional approach to the discrimination: people are not just unmarried or women, they are both, and discrimination often manifests at the intersection between these identities. See: Tshabalala v S; Ntuli v S 2020 (3) BCLR 307 (CC) par [92].
As the Constitutional Court held as far back as Harksen v Lane NO and Others 1998 (1) SA 300 CC (“Harksen”):
“There is often a complex relationship between these grounds. In some cases, they relate to immutable biological attributes or characteristics, in some to the associational life of humans, in some to the intellectual, expressive and religious dimensions of humanity and in some cases to a combination of one or more of these features. The temptation to force them into neatly self- contained categories should be resisted.” See: Harksen par [50].
That is certainly true for the overlapping grounds of discrimination at in the case at hand. As O’Regan J noted in Harksen: “I have little doubt that at times provisions discriminating on the grounds of marital status will implicate a pattern of discrimination rooted in one of the patterns established in our past”. See: Harksen par [96].
It would seem that the discrimination here burdens a group that has been traditionally disadvantaged – unmarried, cohabiting women. It maintains the traditional power structure in which a male partner dictates the nature of the relationship, and therefore consequent entitlement to legal benefits.
In Part Two I will deal with the recognition of an ex lege duty of support between life-partners 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.
