In an unreported judgment, the Western Cape High Court had to decide if a woman in a permanent romantic relationship was entitled to maintenance when the relationship ended.
The applicant and the respondent were involved in a serious romantic relationship for over nine (9) years. Three (3) minor children were born in this relationship. The applicant contended that the respondent took care of all her and the minor children’s maintenance needs and that they were entirely financially dependent on the respondent.
The applicant submitted that parties in life partnerships are “left out in the cold” when it comes to maintenance following the breakdown and consequent termination of their relationships.
The court found that it was not valid to distinguish between maintenance emanating from a permanent life partnership and that arising from a marriage.
Summary of the Law and Court’s Conclusion
The court discussed the duty of support:
- A spouse has been afforded legislative relief by s 7 of the Divorce Act which applies to all civil marriages, civil unions (i.e., same-sex marriages) concluded in terms of the Civil Union Act and recognised customary marriages in terms of the Recognition of Customary Marriages Act.
- In addition, where a marriage is terminated by the death of a spouse the other is given similar legislative relief in terms of the Maintenance of Surviving Spouses Act.
- Spouses in certain customary marriages are included in the definition of “survivor”. In Daniels v Campbell the Constitutional Court confirmed that the word “spouse” in that Act includes widows from monogamous Muslim marriages.
- In Bwanya v The Master of the High Court and Others, the same court held that the exclusion of life partners from the operation of that Act was unconstitutional and invalid. It accordingly ordered that the definition of “survivor” be read to include ‘…the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate’.
- Bwanya thus concluded that it was no longer correct in law to draw a distinction between reciprocal support duties that arose by automatic operation of law as an invariable consequence of marriage and support duties that arose by agreement in the context of permanent life partners.
The court stated:
- Is there a legally enforceable duty of support arising out of a relationship akin to marriage?
- A ‘permanent romantic relationship’ is not synonymous with a permanent life partnership wherein the parties undertook reciprocal duties of support to one another within the context of a familial setting. It found that a ‘permanent romantic relationship’ does not per se equate to proof of the assumption of a reciprocal duty of support in a familial setting.
- The applicant must first prove facts establishing that the duty of support existed and that it existed in a familial setting. If proven, her right to legal protection will be established.
- The applicant has a common law remedy and her entitlement or otherwise to maintenance rests squarely on that remedy. She must first prove facts establishing that the
duty of support existed, and that it existed in a familial setting. If proven, her right to legal protection will be established.
The court concluded that the law should handle financial support similarly for both married couples and those in long-term relationships. It’s crucial to demonstrate a family-oriented responsibility for support to ensure legal protection. This ruling mirrors evolving laws that acknowledge the rights of people in non-marital relationships, guaranteeing their eligibility for financial assistance.