New case deals with ‘life partners’ and maintenance in South Africa

BusinessTech | 11 Apr 2023

A recent case had to determine whether there was a duty of support between life partners after the termination of their relationship.

Legal experts Brigitta Mangale and Elgene Roos from Cliffe Dekker Hofmeyr said that South Africa’s law has had to adjust to acknowledge non-traditional nuclear families through legal recognition of various different forms of a committed relationship.

In February this year, in the case of E.W v V.H the Western Cape High Court was tasked with answering the question as to what legal consequences flow from a life partnership.

Facts

The applicant and respondent were in a long-term romantic relationship for eight or nine years, during which three children were born, said Cliffe Dekker Hofmeyr.

The applicant (i) did not earn an independent income; (ii) had no assets of her own; (iii) attended to raising the children born of their relationship; and (iv) was entirely financially dependent on the respondent.

When the applicant terminated the relationship, the respondent significantly reduced his financial support, launched an application threatening to take the children away from the applicant, and threatened to terminate the lease of their family home.

Subsequently, the applicant sought relief from the respondent and requested the court to declare that the common law recognises a duty of support between partners in unmarried opposite-sex permanent life partnerships – such that the parties are entitled to claim maintenance from one another following termination of their relationship.

Alternatively, the common law be developed, in line with the Bill of Rights, to achieve this recognition, said the law firm.

The applicant in these proceedings, sought interim maintenance of R56,000 per month and payment of her medical and motor vehicle expenses. She also sought payment of R1 million from the respondent as an initial contribution towards her costs in the pending action, it added.

The applicant argued that the lack of legal recourse for life partners to claim maintenance following the termination of the partnership was constitutionally unacceptable, as it discriminated on the basis of the listed grounds of marital status and gender and constituted unequal protection before the law.

Further, where the common law duty of support between spouses terminates upon divorce or death in a marriage, such spouses find a remedy in legislation.

The court was not persuaded, said Cliffe Dekker Hofmeyr.

The court also found that in terms of constitutional case law, the applicant was entitled to legal recourse; however, she would have to prove that the duty of support existed as a consequence of their relationship and that it existed in a familial setting.

It went on to note that there was no need to develop the common law.

Finding

As a result, the court could not find in favour of the applicant’s claim for interim maintenance, as granting interim relief would amount to finding favour for the final relief sought in action.

“Ultimately, the court dismissed the application and held that 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, and therefore dismissed the application, but with no order as to costs,” said Cliffe Dekker Hofmeyr.

There was, however, a minority finding by a dissenting judge.

According to Cliffe Dekker Hofmeyr, the dissenting judge said that when dealing with an issue with a constitutional flavour such as this, a court must guard against applying “black letter” law and the focus should be on the actual wrong that needs to be remedied.

“The judge carefully set out the financial and support dynamics between the parties during their 8 or 9-year relationship and found that what was squarely before the court was a question of prejudice.”

“The minority found that the prejudice the applicant would suffer significantly outweighed the prejudice the respondent would suffer if the interim financial relief was granted, and thus, irreparable harm was established,” said Cliffe Dekker Hofmeyr.

Additionally, the minority also said that providing redress to the applicant would significantly impact the plight of many faceless women in our society, and thus the case between the applicant and the respondent could not be viewed in isolation. The minority judge found that he would have granted the applicant interim maintenance in the circumstances.

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