Unmarried cohabitants: The court’s missed opportunity to adopt an inclusive approach to the term ‘spouse’

November 1st, 2021
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There are many varied spousal relationships. Individuals in spousal relationships – whether they are married or not – structure their relationships differently. ‘In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not.

It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent’
(Yakiwchuk v Oaks 2003 SKQB 124 (CanLII)).

Section 9 of the Constitution provides:

‘Everyone is equal before the law and has the right to equal protection and benefit of the law’.

The Constitutional Court (CC) has decided in various decisions whether people must choose whether to marry or not and depending on their decision whether protection flows from it or not. It seems the court sided with sectional religious or moral views despite the wording of s 9(3) of the Constitution. I say this with specific reference to what Justice Sachs said in his minority decision of Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC).

‘By opting not to marry, thereby not accepting the legal responsibilities and entitlements that go with marriage, a person cannot complain if she is denied the legal benefits she would have had if she had married. Having chosen cohabitation rather than marriage, she must bear the consequences. Just as the choice to marry is one of life’s defining moments, so, it is contended, the choice not to marry must be a determinative feature of one’s life’.

‘Instead of insisting that the guarantee of non-discrimination on the ground of marital status requires existing family-law style protection to be extended to all relationships that are comparable to marriage, the court sees nothing wrong with legal discrimination against those who have chosen not to enter civil marriages’ (Denise Meyerson ‘Who’s in and who’s out? Inclusion and exclusion in the family law jurisprudence of the Constitutional Court of South Africa’ (2010) 3 Constitutional Court Review 295).

The CC, with its ‘marriage-centric’ focus privileges religious unions in its approach to the term spousal relationship has turned a slippery slope rapidly into an icy cliff. The court’s approach does not force the legislature to protect all legally unrecognised unions that play the same social role as marriage. The definitions of legislation that is of particular importance to women are discriminatory based on how relationships are categorised. Regrettably, South African courts had an opportunity to change the Napoleonic adage ‘cohabitants ignore the law and the law ignores them’ (see Volks NO and Susan Hutchings and Elize Delport ‘Cohabitation: A responsible approach’ 1992 (Feb) DR 121). I echo the sentiments expressed by Meyerson (op cit) that the courts have based their decisions on morality.

The Domestic Violence Act 116 of 1998

Section 1 of the Domestic Violence Act defines ‘domestic relationship’ as ‘a relationship between a complainant and a respondent in any of the following ways:

(a)      they are or were married to each other, including marriage according to any law, custom, or religion;

(b)      they (whether they are of the same or of the opposite sex) live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other;

(e)      they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or

(f)       they share or recently shared the same residence’.

The Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990

The term spouse is given its ordinary grammatical meaning. The CC had several opportunities to adopt an inclusive approach in defining the term ‘spouse’ when challenged with the term ‘spouse’. In Daniels v Campbell NO and Others 2004 (5) SA 331 (CC), the CC held the word spouse as used in the Intestate Succession Act, includes the surviving partner to monogamous Muslim marriage. In Volks the court held at para 56: ‘The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in section 2(1) of the [Maintenance of Surviving Spouses] Act falls within the scope of the maintenance support obligation attached to marriage’. The justification offered for the special treatment of the married has traditionally been moralistic and religious. Certain kinds of intimate and family relationships are seen as morally superior to their functional equivalents, and it is thought appropriate to use the law to encourage such relationships by bestowing more favourable treatment and the stamp of legitimacy on those who enter into them by acquiring an official licence from the state.

Civil Union Act 17 of 2006

Section 1 of the Act defines ‘civil union partner’ as ‘a spouse in a marriage or a partner in a civil partnership, as the case may be, concluded in terms of this Act’. Section 4 enacts the solemnisation of civil union as a marriage officer may solemnise a civil union in accordance with the provisions of the Civil Union Act. It begs the question of why relationships should have to assume a particular legal form to attract appropriate rights and duties. A reading of the Civil Union Act shows persons who are not married or have not entered into a civil union do not enjoy the benefits and protection they are entitled to based on their relationship.

‘The purpose of family law is to protect vulnerable members of families and to ensure fairness between the parties in family disputes’ (Volks NO at para 194). As such, the functional approach to family law recognises that not all families are created by the conclusion of a valid marriage and that a domestic partnership can possibly fulfil the same social function as marriage. I think a more inclusive and functional approach must be adopted to ensure that all ‘spousal relationships’ enjoy the right to equality as enshrined in the Constitution. It will afford all parties the protection their spousal relationship is entitled to.

I believe it is more important to determine whether a spousal relationship exists than legalising a relationship through marriage and the solemnisation of a civil union. In saying the above, I am consciously aware that ‘relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist. … The legislation provides little guidance on what constitutes cohabiting in a spousal relationship or when such a relationship may be said to start or end. It is left to the court to examine the facts of each case and make those determinations. In a perfect world, the courts would have all the information necessary to make such a determination but this is not a perfect world’ (Yakiwchuk at para 10 – 11).

‘Determining whether a marriage-like relationship exists sometimes seems like sand running through one’s fingers. Simply put, a marriage-like relationship is akin to marriage without the formality of a marriage. … [P]eople treat their marriages differently and have different conceptions of what marriage entails’
(Mother 1 v Solus Trust Company 2019 BCSC 200). It is the reason courts must be cautious in adopting a ‘checklist approach’. A holistic approach examining all the relevant factors should be adopted to determine whether a spousal relationship exists. The presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like or not. ‘The parties’ intentions, particularly that the relationship will be of lengthy, indeterminate duration’ – may be of importance in determining whether a relationship is ‘marriage-like’ (Mother 1 at paras 136 and 143). The question of whether a relationship is marriage-like will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was marriage-like.

Certain factors are considered to determine whether a relationship was marriage-like. At the fear of repetition, it is important to state it is not an exhaustive list, nor is the absence of one or more of the factors fatal in the determination of whether the parties had a spousal relationship. These factors include:

‘1.      Shelter:

(a)      Did the parties live under the same roof?

(b)      What were the sleeping arrangements?

(c)      Did anyone else occupy or share the available accommodation?

  1. Sexual and personal behaviour:

(a)      Did the parties have sexual relations? If not, why not?

(b)      Did they maintain an attitude of fidelity to each other?

(c)      What were their feelings toward each other?

(d)      Did they communicate on a personal level?

(e)      Did they eat their meals together?

(f)       What, if anything, did they do to assist each other with problems or during illness?

(g)      Did they buy gifts for each other on special occasions?

  1. Services:

What was the conduct and habit of the parties in relation to:

(a)      preparation of meals;

(b)      washing and mending clothes;

(c)      shopping;

(d)      household maintenance; and

(e)      any other domestic services?

  1. Social:

(a)      Did they participate together or separately in neighbourhood and community activities?

(b)      What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?

  1. Societal:

What was the attitude and conduct of the community toward each of them and as a couple?

  1. Support (economic):

(a)      What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc)?

(b)      What were the arrangements concerning the acquisition and ownership of property?

(c)      Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

  1. Children:

What was the attitude and conduct of the parties concerning children?’ (Mother 1 at para 134).

‘Like human beings themselves, marriage-like relationships can come in many and various shapes’ (Connor Estate 2017 BCSC 978 (CanLII)). ‘However, the traditional factors are not a mandatory checklist that confines the “elastic” concept of a marriage-like relationship. And if the [COVID-19] pandemic has taught us nothing else, it is that real relationships can form, blossom and end in virtual worlds’ (Han v Dorje 2021 BCSC 939 (CanLII)). I say this despite the CC’s decisions that imply that those whose reasons for not entering a valid marriage are not religious are second-class citizens and less worthy of respect.

Lastly, ‘South Africans live in a society that proclaims … the “right to be different” and the “right of people to self-expression without being forced to subordinate themselves to the cultural and religious norms of others”. …
[R]elationships characterised by mutual support and financial interdependence are entitled to the same protection as the legislature confers on marital relationships, regardless of whether such arrangements have the imprimatur of religion or culture’ (see Meyerson (op cit) at 311 and Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1) SA 524 (CC)).

Desmond Francke BIuris (UWC) is a magistrate in Ladysmith.

This article was first published in De Rebus in 2021 (Nov) DR 26.

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