Pretoria - A woman who asked the Western Cape High Court to develop the common law to permit unmarried couples in life partnerships to claim maintenance from one another in the event of separation has lost this leg of her application.
The applicant argued that the lack of legal recourse for life partners to claim maintenance from one another following the termination of their partnership is constitutionally unacceptable since it discriminates on the basis of marital status and gender and constitutes unequal protection before the law.
Judges Judith Cloete and Hayley Slingers this week said there was no need to develop the common law at this stage.
They said they were not persuaded, given the approach adopted by the applicant in this matter, that they were in a position to make a properly informed decision about whether the common law development she sought was required. “We are not persuaded that development of the common law in the manner proposed by her is necessary or appropriate,” they said.
Judge Cloete, who wrote the judgment, said there were other remedies available to the applicant. “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.”.
Judge Cloete added that the pending action – in which she will pursue her application for maintenance – afforded her the perfect opportunity to do so. “It is in that forum that the fundamental dispute between the parties – whether or not a permanent life partnership existed – can be fully canvassed. The trial court will be ideally placed to make that factual finding. It is therefore also from that factual finding that her entitlement or otherwise to maintenance, and the extent and duration thereof, will flow.”
The judge said in reaching these conclusions, the court made it clear that they pertained only to the particular case presented to them by the applicant. “Our conclusions are most certainly not intended to be of some broader implication or consequence. It thus, of course, remains open to anyone to approach the court for declaratory relief of the nature which the applicant has sought in this matter.”
The application was heard by a full Bench. The third judge, Derek Wille, issued a dissenting judgment in which he said he would have made an order declaring that partners are entitled to claim interim financial relief from one another following the termination of the life partnership. This is where the life partners undertook reciprocal duties of support towards each other.
The application was sparked by the applicant, who was in a life partnership for nine years with her partner and the father of her three children. They have broken up, and she is trying to claim maintenance from him. As the law does not make provision for this, and in light of his refusing to financially maintain her, she has turned to the court in a bid for the common law to allow for maintenance.
This was to be her first step before she turned to court to determine the maintenance. She, however, at this stage, asked for interim maintenance, which the judges refused in the majority judgment, while Judge Wille, in his minority judgment, said he would have allowed this. He said the applicant considered her relationship status a type of marriage under which she had acquired some rights and protections. She did not earn an independent income and was entirely financially dependent on the respondent.
“She and her partner partook in a wedding ceremony abroad akin to a wedding. They manifested their intention to be bound together in a permanent relationship in the presence of witnesses,” Judge Wille said.
The applicant’s lawyer, family law expert Bertus Preller, meanwhile, said they intended to take this matter further, and he envisaged that it would later reach the Constitutional Court.
Pretoria News