Unmarried South Africans and maintenance – what they law says

 ·14 May 2023

South Africans who have recently had their life partnership ended can legally apply for maintenance from their former partner.

Attorneys at Wright Rose-Innes looked at a recent Western Cape High Court matter – EW v VH (12272/2022) [2023] –  which dealt with the termination of a life partnership.

In this case, the court had to determine if the applicant, a woman who used to be in a 9-year-long relationship, was entitled to maintenance from the respondent after their relationship ended.

The plaintiff asked for an order which declared that the two parties were partners in a permanent life partnership, which the defendant ended, and had undertaken reciprocal duties of support.

She asked that the defendant pay maintenance for ten years, and, alternatively, the court should recognise that common law does not recognise the support for unmarried opposite-sex life partners and should develop a common law for support between life partners.

The court thus looked at a prior case before the Supreme Court of Appeal (SCA) – Paixáo v Road Accident Fund 2012 – where the common law action available to dependants affords them the opportunity to claim maintenance resulting from the death of the main breadwinner.

In this case, both parties performed their reciprocal duties of support – which could arise even if there was no clear agreement.

SCA said that the deceased had an enforceable duty to support the claimant even though the parties were unmarried.

The Western Cape High Court also considered a case before the Constitutional Court (ConCourt) –  Bwanya v Master of the High Court, Cape Town and Others 2022. 

“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 ConCourt said.

“[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 – which has not come into operation – said that the court must make a decision which is just in regard to the maintenance of one domestic partner for another until death or remarriage.

In 2021, The South African Law Reform Commission (SALRC) published Discussion Paper 152: Single Marriage Statute, which had far wider consequences than the 2008 Draft Domestic Partnerships Bill.

The SALRC said that any life partnership should be defined as partners who live together and have assumed permanent responsibility to support each other, arguing that these relationships must be registered.

Currently, a partner in a life partnership can approach a court at the end of the relationship and claim maintenance from the other party based on existing agreements of the duty of support.

However, the ConCourt ruling allows for additional possibilities.

“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 thus said that a party in a permanent life partnership can claim maintenance from the other if they can provide evidence that a duty of support existed.

Wright Rose-Innes said that there is currently no automatic duty of support, however, this position could change in the future if the case goes to appeal or trial.

Read: New marriage and divorce laws coming to South Africa

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