Interim Maintenance for an Unmarried Partner in a Permanent Opposite-sex Life Partnership
A very unique court application was set down to be heard before three Judges in the Cape High Court on 20 January 2023. In the application, similar to a Rule 43 application, the Applicant will request that, pending the ultimate determination of an action in which she claims against the Respondent for the provision of her reasonable maintenance needs, insofar as she is not in a position to provide therefor from her own means and earnings, following the termination of their permanent opposite-sex life-partnership (“the pending action”), the Respondent be ordered to maintain the Applicant in the temporary and to make an initial contribution towards her legal costs in the pending action.
Every married spouse have mutual support duties, the existence of which are an invariable effect of marriage that arise by automatic operation of law. Our Courts have in the past held that the law does not impose a similar automatic reciprocal support duty on unmarried partners in life-partnerships, but that this position has transformed in the light of current legal developments.
In the case of Paixao v Road Accident Fund 2012 (6) SA 377 (SCA), the Supreme Court of Appeal found that the common law “dependent's action”, which allows a claimant to claim for maintenance and loss of support suffered as a result of a breadwinner’s death, had been expanded to a claim by a surviving partner of a permanent opposite-sex life partnership in which the partner had performed reciprocal duties of support with the deceased, regardless of such reciprocal duties of support not having been assumed by express agreement between the parties. The Supreme Court of Appeal held that the deceased had indeed had a legally enforceable duty to support the claimant even though the parties were in an unmarried life-partnership. The enforceable duty arose from a tacit contract for reciprocal support, which the court inferred from the couple’s conduct and associated circumstances.
In the latest case of Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC), the Constitutional Court found that Paixao was not essentially based on a implied contract for reciprocal support, but instead that the core of the Supreme Court of Appeal’s decision was the court’s view that “[t]he proper question to ask is whether the facts confirm a legally enforceable duty of support arising out of a relationship akin to marriage”.
These factors can be summarised as follows:
(a) the duration of the partnership;
(b) whether the partners had children together;
(c) whether the partners took part in a ceremony manifesting their intention to enter into a permanent partnership, what the nature of that ceremony was and who attended it; how the partnership is viewed by the relations and friends of the partners;
(d) whether the partners share a common abode; whether and to what extent the partners share responsibility for living expenses and the upkeep of the joint home;
(e) whether and to what extent one partner provides financial support for the other; whether and to what extent the partners have made provision for one another in relation to medical, pension and related benefits; and,
(f) whether one partner is financially dependent on the other.
The recognition of these factors by our Courts is indicative of the existence of an ex lege duty of support, quite apart from the traditional contractual basis.
It will be argued in this application that the common law recognises the existence of a duty of support between partners in unmarried opposite-sex permanent life-partnerships, and, on account of the duty of support that existed during the subsistence of the life-partnership, such partners are entitled, in terms of the common law, to claim maintenance from one another, insofar as they are not able to provide therefor from their own means and earnings, following the termination of the said life-partnership. Alternatively, should the Court find that the common law does not currently recognise such a claim, it will be contended that such lack of recognition is constitutionally unacceptable as it discriminates on the basis of, inter alia, marital status and sexual orientation, and further that the common law should be developed in a manner that promotes the spirit, purport and objects of the Bill of Rights to recognise such a claim for partners in unmarried opposite-sex permanent life-partnerships.
It will be interesting to see what the outcome of this landmark application will be, since, if the Applicant is successful, it will be the first time in the history of South African law that an unmarried partner in a life-long partnership will become entitled to interim maintenance pending an action for maintenance.
Attorneys for the Applicant Bertus Preller at Maurice Phillips Wisenberg in Cape Town. Counsel for the Applicant in this matter will be Adv. Brian Pincus SC with Adv Adri Thiart.
Attorneys for the Respondent Rudolf Britz Honey and Partners Bloemfontein Counsel for the Respondent Adv Barbara Gassner SC.
Read more about the case here.
Every married spouse have mutual support duties, the existence of which are an invariable effect of marriage that arise by automatic operation of law. Our Courts have in the past held that the law does not impose a similar automatic reciprocal support duty on unmarried partners in life-partnerships, but that this position has transformed in the light of current legal developments.
In the case of Paixao v Road Accident Fund 2012 (6) SA 377 (SCA), the Supreme Court of Appeal found that the common law “dependent's action”, which allows a claimant to claim for maintenance and loss of support suffered as a result of a breadwinner’s death, had been expanded to a claim by a surviving partner of a permanent opposite-sex life partnership in which the partner had performed reciprocal duties of support with the deceased, regardless of such reciprocal duties of support not having been assumed by express agreement between the parties. The Supreme Court of Appeal held that the deceased had indeed had a legally enforceable duty to support the claimant even though the parties were in an unmarried life-partnership. The enforceable duty arose from a tacit contract for reciprocal support, which the court inferred from the couple’s conduct and associated circumstances.
In the latest case of Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC), the Constitutional Court found that Paixao was not essentially based on a implied contract for reciprocal support, but instead that the core of the Supreme Court of Appeal’s decision was the court’s view that “[t]he proper question to ask is whether the facts confirm a legally enforceable duty of support arising out of a relationship akin to marriage”.
These factors can be summarised as follows:
(a) the duration of the partnership;
(b) whether the partners had children together;
(c) whether the partners took part in a ceremony manifesting their intention to enter into a permanent partnership, what the nature of that ceremony was and who attended it; how the partnership is viewed by the relations and friends of the partners;
(d) whether the partners share a common abode; whether and to what extent the partners share responsibility for living expenses and the upkeep of the joint home;
(e) whether and to what extent one partner provides financial support for the other; whether and to what extent the partners have made provision for one another in relation to medical, pension and related benefits; and,
(f) whether one partner is financially dependent on the other.
The recognition of these factors by our Courts is indicative of the existence of an ex lege duty of support, quite apart from the traditional contractual basis.
It will be argued in this application that the common law recognises the existence of a duty of support between partners in unmarried opposite-sex permanent life-partnerships, and, on account of the duty of support that existed during the subsistence of the life-partnership, such partners are entitled, in terms of the common law, to claim maintenance from one another, insofar as they are not able to provide therefor from their own means and earnings, following the termination of the said life-partnership. Alternatively, should the Court find that the common law does not currently recognise such a claim, it will be contended that such lack of recognition is constitutionally unacceptable as it discriminates on the basis of, inter alia, marital status and sexual orientation, and further that the common law should be developed in a manner that promotes the spirit, purport and objects of the Bill of Rights to recognise such a claim for partners in unmarried opposite-sex permanent life-partnerships.
It will be interesting to see what the outcome of this landmark application will be, since, if the Applicant is successful, it will be the first time in the history of South African law that an unmarried partner in a life-long partnership will become entitled to interim maintenance pending an action for maintenance.
Attorneys for the Applicant Bertus Preller at Maurice Phillips Wisenberg in Cape Town. Counsel for the Applicant in this matter will be Adv. Brian Pincus SC with Adv Adri Thiart.
Attorneys for the Respondent Rudolf Britz Honey and Partners Bloemfontein Counsel for the Respondent Adv Barbara Gassner SC.
Read more about the case here.