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Family and Divorce law in South Africa - A Comprehensive Guide
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Interim maintenance for unmarried partners

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. 

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Contact Details

​MAURICE PHILLIPS WISENBERG
20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115
Email: familylaw(@)mpw.co.za​


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Email: familylaw@mpw.co.za
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  • Home
  • Divorce
    • The Reasons for Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Divorcing a Narcistic Spouse
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities