In the recent Western Cape High Court matter of EW v VH (12272/2022) [2023] ZAWCHC 58 (17 March 2023), the court was tasked to decide whether the Applicant, a woman who had been involved in a permanent romantic relationship with her partner for nearly 9 years and which relationship had terminated, was entitled to claim maintenance from the Respondent pending the hearing of the action she instituted in the same court.
In the main action, the Plaintiff asked for an order declaring that the Plaintiff and the Defendant were partners in a permanent opposite-sex life partnership in which they as partners had undertaken reciprocal duties of support and which partnership was terminated when the Defendant vacated the common home in April 2022. The Plaintiff further asked that the Defendant pay maintenance to her for a period of 10 years, and in the alternative that, if the Court should find that the common law does not currently recognise a legal duty of support for unmarried opposite-sex life partners, an order must be made to develop the common law to recognise the ex lege duty of support between opposite-sex life partners.
The court looked at the case of Paixáo v Road Accident Fund 2012 (6) SA 377 (SCA) where the Supreme Court of Appeal extended the common law action available to dependants affording them the right to claim maintenance and a loss of support resulting from the death of a breadwinner, to also include a claim by a surviving partner in a permanent opposite-sex life partnership. Importantly, in this case, the claimant and the deceased had both performed reciprocal duties of support, which duty of support could arise even if there was no express agreement between the parties and could be inferred from the couple’s conduct and the specific circumstances surrounding their relationship. The Supreme Court of Appeal held that the deceased had indeed had a legally enforceable duty to support the claimant even though the parties were in an unmarried life partnership. Thus, where a duty of support had come into existence by way of contract it could be enforced.
Further, the court considered the case of Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC), where the Constitutional Court held: “What took centre stage in Paixáo was the fact that the duty existed, and it existed in a familial setting. And it is that familial and spouse-like relationship that made it necessary that the right be afforded legal protection.” The Constitutional Court further emphasized what was stated in the Paixáo case:“[t]he proper question to ask is whether the facts establish a legally enforceable duty of support arising out of a relationship akin to marriage”.
Section 18 of the draft Domestic Partnerships Bill 2008 provides for a court to ‘make an order which is just and equitable in respect of the maintenance by one registered domestic 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…’. This Bill has however not come into operation.
The South African Law Reform Commission (SALRC) issued Discussion Paper 152: Single Marriage Statute (under Project 144) for comment. The 2021 Single Marriage Statute Discussion Paper proposes more far-reaching legislative developments than the 2008 Domestic Partnerships Bill. The Discussion Paper includes draft legislation, with two legislative options proposed for comment. The first option is contained in the Protected Relationships Bill, and the second in the Recognition and Registration of Marriages and Life Partnerships Bill. The SALRC recommends that life partnerships should be defined as ‘any life partnership where the parties cohabit and have assumed permanent responsibility for supporting each other’ and goes further to propose that such relationships must be registered.
At present, a partner to an opposite-sex permanent life partnership is entitled to approach a court at the dissolution of the relationship and to claim maintenance from the other party based on the existence of an agreement/contract which establishes the duty of support. The judgment in Bwanya however opens the door to further possibilities as well, which the court in the case of EW v VH summarised as follows: “The applicant already 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 pending action affords her the perfect opportunity to do so. “
The Western Cape High Court accordingly held that a party to a permanent life partnership may claim maintenance from the other upon proving that there existed between the parties a duty of support and that the onus of proving this rests on the party who wishes to claim maintenance. There is not at present an automatic duty of support between parties in opposite-sex life partnerships and this position might well be varied if the matter of EW v VH goes on appeal or if the trial proceeds.
What is advisable at present for parties to a permanent life partnership is that they enter into co-habitation agreements which deal with among other things, their duties of support and maintenance to avoid uncertainty and protracted litigation at the dissolution of the relationship. If you are in such a relationship, consider contacting a family law specialist to help you with such a cohabitation agreement.
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