Legal recognition for non-nuclear families

December 1st, 2012

Support for unmarried heterosexual partners

By Viwe Didishe

For a variety of reasons, a large number of South Africans live together in intimate relationships without marrying (B Goldblatt ‘Regulating domestic partnerships – a necessary step in the development of South African family law’ (2003) 120 SALJ 610). This raises the question whether a surviving partner who was in a heterosexual relationship with his deceased partner is entitled to institute an action for loss of support if the two were not married. This article discusses relevant case law dealing with this issue, particularly in relation to monogamous heterosexual life partners and their entitlement to claims for loss of support.

Cohabiting partners

In Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC) the Constitutional Court was required to decide whether a surviving partner in a heterosexual life partnership, where no marriage had been concluded, could claim maintenance from the estate of the other partner in terms of the Maintenance of Surviving Spouses Act 27 of 1990. The court held that such a partner could not be regarded as a surviving ‘spouse’ for purposes of the Act. The majority judgment found that the purpose of the Act was to extend an invariable consequence of marriage beyond the death of one of the spouses. While there was a reciprocal duty of support between married persons, there was no such legal duty on unmarried persons. To extend the provisions of the Act to the estate of a deceased person who was not obliged during his lifetime to maintain his partner would amount to imposing a duty after death where none had existed during his lifetime. Skweyiya J did, however, recognise that unmarried couples who live together face many obstacles because their relationships are not recognised. This was attributed to the absence of law regulating the position of domestic partnerships and parliament was urged to rectify this position through legislation and policy reform. The minority judgment in this case addressed, inter alia, the fact that the social function of domestic partnerships is no different to the social function of marriages and to treat them differently constitutes unfair discrimination.

A different position can be found in the case of Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC), which was predicated on the fact that same-sex life partners did not have the option of formalising their partnerships. The Constitutional Court in this matter ruled that partners in a permanent same-sex life partnership should be regarded as ‘spouses’ for intestate succession purposes. The subsequent enactment of the Civil Union Act 17 of 2006, which came into operation on 1 December 2006, has however limited the application of this decision as same-sex couples who enter into a marriage or civil partnership in terms of the Civil Union Act now enjoy the rights of spouses in a civil marriage in terms of the Marriage Act 25 of 1961. In particular, the Civil Union Act allows for both heterosexual and same-sex couples to enter into a ‘civil partnership’ or ‘marriage’, provided certain formalities are met.

The Volks NO decision must therefore be distinguished from the Gory decision. Partners in a heterosexual life partnership can marry, but choose not to, and therefore it cannot be regarded as discriminatory to distinguish between spouses in a marriage and partners in a heterosexual life partnership, while in a same-sex lifelong partnership the partners could not legally marry before the commencement of the Civil Union Act. Their exclusion from the provisions of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act was therefore discriminatory and unconstitutional.

The Volks NO case sparked much debate with regard to the sanctity of marriage, on the one hand, and, on the other hand, recognising that the dynamics of relationships have evolved and couples no longer feel the need to be bound to the institution of marriage in order to live together as ‘husband and wife’ and exercise the same responsibilities and obligations as married couples. The debate centres around the fact that the treatment of opposite-sex life partnerships does not accord with ‘the greater project of … gender and social justice through law to which the Constitution has committed us’ (Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at para 10, cited in H Kruuse ‘“Here’s to you, Mrs Robinson”: Peculiarities and paragraph 29 in determining the treatment of domestic partnerships’ (2009) 25(2) SAJHR 380).

There is a clear conflict of values protected in society: On the one hand are the values of equality and equal benefit of the law and, on the other hand, is the entrenched value of marriage. It is up to the courts to decide whether a deviation from the Volks NO case is necessary, however it is acknowledged that parliamentary intervention is required to remove uncertainty on how domestic partnerships ought to be treated in law.

It will be interesting to examine how the courts will adjudicate on future cases that are similar to the Volks NO case and, in particular, how the courts will make just and equitable decisions bearing in mind that family relationships differ and not every case will be on all fours with this matter.

How will the courts strike a balance between following precedent and departing from it where the principles of justice and equity require this? Under what circumstances will courts depart from the Volks NO decision and what will be considered just and equitable to justify a finding contrary to this decision. A closer look at decisions subsequent to the Volks NO decision will shed some light on the questions and, hopefully, while parliament finalises the draft Domestic Partnerships Bill, will provide some clarity on how courts are approaching the issue.

Cases subsequent to Volks NO

The Sibanda case

In Sibanda v The Road Accident Fund (GSJ) (unreported case no 9098/07, 3-2-2009) (Horn J) the plaintiff lived with the deceased prior to a motor vehicle collision in which he died. They were engaged to be married and the plaintiff was expecting the deceased’s child at the time of the collision. The question the court faced was whether, had the accident not occurred, the plaintiff and the deceased would have married and whether such a planned marriage would have given rise to a legal duty of support on the deceased in respect of the plaintiff.

The court in this case pointed out that marriage is what entitles a spouse to a claim for loss of support against the defendant, the Road Accident Fund (RAF), and no duty of support arises before this. The court stated: ‘A mere spes that such a duty may arise in the future when the parties expected to be married is … not sufficient to found a claim for loss of support.’ The court distinguished the matter from that of Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA), which concerned partners in a same-sex partnership who could not marry each other at the time because of the discriminatory laws that prevailed against same-sex couples. The party in the same-sex partnership had contractually undertaken a duty to support his partner with the intention of being legally bound. However, the court in the Du Plessis case left open the question of heterosexual couples in a similar position.

In the Sibanda case the court noted that there had been no contractual undertaking such as the one in the Du Plessis case, which would have created a legal basis for a duty of support. The court held that the plaintiff had failed to prove that she was in need of support or that a legal duty for her to be supported existed. With regard to the fact that the plaintiff was expecting the deceased’s child at the time of the collision, the court held that a duty of support in respect of the child was not disputed. Further, the defendant did not object to paying for loss of support insofar as the child was concerned. The court held that, although the plaintiff could prove on a balance of probabilities that the deceased would have married her had he not been killed in the collision, the RAF was not liable to compensate her.

The Verheem case

In Verheem v RAF 2012 (2) SA 409 (GNP) the plaintiff alleged that she was a third party who should be placed in the same position as a widow who was legally married to the deceased and was therefore entitled to a claim for loss of support.

The plaintiff and the deceased had lived together for many years. Before they started living together, the plaintiff had given birth to a child from a previous relationship and thereafter the deceased and the plaintiff lived together and had two children of their own. They brought up the children in the same household and the deceased made no differentiation between their children and her other child. The plaintiff was never employed but there had been an agreement between her and the deceased that they would get married and she would look after the household and the children and, in turn, the deceased would be the sole breadwinner. In coming to its decision, the court considered inter alia the facts that the plaintiff and the deceased did not have enough money for a decent wedding, although they wished to get married; ‘everybody’, including the deceased’s relatives, considered them to be man and wife; the plaintiff had a contract with the deceased in the sense that she would look after the household and he would be the sole breadwinner; and she was completely dependent on him for support.

The court held that the claim for loss of support should be successful on the basis of these factors, as well as the fact that the duty of support towards the plaintiff by the deceased was not merely an undertaking but was a binding contract in that the deceased had made it with the intention of being legally bound. The court thus held that the plaintiff had locus standi to claim an amount for loss of support from the defendant.

The Paixão case (court a quo)

In the case of Paixão and Another v Road Accident Fund (GSJ) (unreported case no 05692/10, 1-7-2011) (Mathopo J) the first plaintiff had been in a relationship with the deceased, with whom she had lived but not married. The second plaintiff (the first plaintiff’s youngest daughter) also lived with the deceased but was not formally adopted by him. The plaintiffs contended that during his lifetime the deceased had contractually undertaken to maintain and support them and, as such, he was legally obliged to do so. The first plaintiff alleged that, after his death, she should be placed in the same position as a widow who was legally married to the deceased. The first plaintiff based this claim on an agreement between her and the deceased that he would support her and her children. In essence, the first plaintiff claimed that she should be placed in the category of persons entitled to claim for loss of support, even in the absence of a separate Act of parliament that recognised such a domestic partnership.

The focus of the argument was ‘whether the deceased, whilst still alive was under a legal duty to support the plaintiff, which duty was enforceable by the plaintiff against the defendant and whether that duty translates into a right of support which is worthy of protection by law and thus enforceable against third parties’ (at para 9) (my emphasis).

The plaintiffs contended that ‘the obligation to maintain and support was created by the existence of a permanent life partnership between the parties where the relationship between them and the circumstances are such that the law will attach a reciprocal duty of support to such relationship’.

The court held that the plaintiffs had failed to establish a legally binding agreement that entitled them to support. Although there had been a promise by the deceased that he would marry the first plaintiff, this amounted to no more than a promise to marry, which did not establish a legal duty of support between the parties.

The defendant in the Paixão case, the RAF, submitted that ‘no claim for loss of support exists purely because the parties agreed to maintain or support each other … and that it is wrong to suggest that because a legally binding agreement exists between the parties, same should be elevated to a legally enforceable right worthy of protection against third parties’ (at para 24). This point was articulated in the case of Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168, in which the court held that such a promise was motivated by motives of gratitude amounting to a general promise binding on honour and conscience rather than a definite contractual undertaking enforceable at law (as cited in the Paixão case at para 25).

The court in the Paixão case held that there was no legal obligation, even when the deceased was alive, to support the plaintiffs. Further, to extend the action of loss of support to cohabitants ‘would be an affront to the fabric of our society [and] trespass and seriously erode the institution of marriage. Any right-thinking member of society would not countenance such conduct, this is particularly so because upholding such promise as constituting good law would not only directly affect the innocent spouse but also impacts on the proprietary or succession rights of the dependants of the deceased’ (at para 40).

The Paixão case (SCA decision)

This decision was taken on appeal to the Supreme Court of Appeal (SCA), which recently overturned the High Court judgment (with the citation Paixão and Another v Road Accident Fund (SCA) (unreported case no 640/11, 26-9-2012) (Cachalia JA)). The court held that a tacit agreement between parties to a heterosexual life partnership established a reciprocal duty of support worthy of protection by the law. The SCA’s decision was influenced by several factors, including the boni mores of society, which the court noted require the courts to make a policy decision based on the recognition that social changes must be accompanied by legal norms to encourage social responsibility. The court held that the relationship amounted to more than a mere promise to marry and the question to be decided was whether or not the nature of the relationship between the parties gave rise to a reciprocal duty of support that the law must protect. The SCA considered the obligations undertaken by the deceased as being akin to a pactum de contrahendo, namely an agreement (and not a ‘mere promise’) to make a contract in the future, which is legally enforceable. This was the ‘most plausible inference’ the court could come to given the facts of the case. However, this approach will not always be successfully applied where the facts of a particular case do not support the adoption of such an approach. The court went further to state that proving the existence of a life partnership entailed more than showing that the parties cohabited and jointly contributed to the upkeep of the common home: ‘[I]ts existence would have to be proved by credible evidence of a conjugal relationship in which the parties supported and maintained each other. The implied inference to be drawn from these proven facts must be that the parties, in the absence of an express agreement, agreed tacitly that their cohabitation included assuming reciprocal commitments – ie a duty to support – to each other.’

The deceased and the first appellant (the first plaintiff in the court a quo) executed a joint will in which they made each other the sole heir of their respective estates and provided for the massing of their estates in the event of simultaneous death and nominated the first appellant’s children – referred to as ‘our children’ – as their heirs. These facts further indicated that the deceased considered the first appellant and her children as his family. Further, the parties were planning to marry and the reason they had not yet done so was they were awaiting the finalisation of the deceased’s divorce to another woman. There was thus a tacit agreement that the deceased would assume the obligation to support the family before the marriage and that the marriage would change nothing other than formally recognise their existing relationship.


It seems that courts will come to a favourable finding for a partner who was in a domestic partnership if the agreement between such partners amounts to more than a mere undertaking to support each other. There must be a binding contract with the intention by both parties to be legally bound by such contract. This seems to be the only exception to the rule, which is welcomed because it recognises that some people do not wish to marry or there are circumstances that prevent marriage.

The most noteworthy distinction between the Paixão case and the Volks NO case is that although the Constitutional Court stated that no reciprocal duty of support arises by operation of law in the case of unmarried cohabitants, it also said that this does not preclude such a duty from being fixed by agreement. Further, the purpose of the Maintenance of Surviving Spouses Act is quite different from that of the ‘dependants’ action’ at common law, which was dealt with in the Paixão case. The former provides for the reasonable maintenance needs of a party to a marriage from the estate of the deceased spouse. The issue in the Volks NO case related to the question of whether a spousal benefit arising from a legally recognised marriage should be available to a surviving partner of a life partnership, while the question in the Paixão case related to the common law dependants’ action in third party claims, which is aimed at placing the dependants of the deceased, to whom the deceased owed a legally enforceable duty to support and maintain, in the same position as they would have been, as regards support and maintenance, had the deceased not died. This is clearly not a spousal benefit that accrues only to a dependant by virtue of a formally recognised marriage. Taking this distinction into consideration, the Volks NO judgment did not, therefore, stand in the way of the Paixão decision.

This is not, however, to suggest that there is absolutely no support for the recognition of domestic partnerships. The reality is that many South Africans find themselves in a situation where they have been in a committed relationship with their respective partner, whereby they have contributed towards the household and other areas of the relationship, and yet on the death of their partner they are not afforded a claim for maintenance or support.

So far, from the case law, it appears that the courts are following an approach that will best suit the particular circumstances of each matter. Rulings on a case-by-case basis are welcome as not every case will fall on all fours with the facts of the Volks NO case and it would be unjust to blindly apply the decision without taking cognisance of the various family situations and relationships that exist.

Viwe Didishe BA LLB (Rhodes) is a candidate attorney at Adams & Adams in Pretoria.

This article was first published in De Rebus in 2012 (Dec) DR 26.