Life partnerships and the duty of support

What protection does the law offer to life partners?

South Africa post-1994 has a track record of progressive thinking regarding relationships and the law. We were one of the first countries in the world to recognise same-sex marriage. Couples who prefer to marry according to traditional cultural laws can do so with the full blessing of common law. More recently, changes to the Divorce Act ensure Muslim women married under Shariah law are not disadvantaged on the dissolution of the marriage. It would be reasonable to assume the same liberalism applies to life partners (those in permanent romantic relationships but not married) seeking support or inheritance rights after divorce or their partner’s death. However, while some court rulings have extended rights to life partners, such as the right to maintenance and inheritance, others have maintained that life partners do not have the same rights as married couples. The courts have debated whether a reciprocal duty of support exists for life partners, and recent judgments show some progress toward recognising these relationships, but legal opinion is inconsistent.

The legal challenges of support in life partnerships

Marriage, once the default social structure for adult heterosexuals, is becoming optional. Many couples, heterosexual or same-sex, choose to commit to each other without marrying. What are the rights and entitlements of surviving partners in life partnerships when one partner passes away or the partnership ends? 

Legal background: life partnership agreements

The legal framework for surviving partners in life partnerships is evolving but remains contentious. One of the first key cases involved a woman who lived with her partner for several years in a permanent life partnership. After her partner’s death, she claimed maintenance from his estate under the Maintenance of Surviving Spouses Act, arguing that their partnership was akin to a marriage. 

Initially, the court ruled in her favour, recognising that the exclusion of life partners from the Act violated the constitutional rights to equality and dignity. The court ordered that life partnerships with reciprocal duties of support should be included in the Act’s definition of “survivor.” However, this decision was overturned on appeal. The higher court held that since there was no legal obligation for the deceased to support the claimant during his lifetime, imposing such a duty after his death would be unjust. This distinction between married couples and life partners was not deemed discriminatory.

The shift toward recognising life partnerships

Another case highlights new developments in legal thought. A woman who had been engaged to her partner, and living in a stable, permanent relationship with him, sought maintenance and inheritance from his estate after his death. Her claims were rejected by the estate’s executor, as the relevant laws did not extend to life partners.

The court in this case took a more progressive stance, recognising life partnerships as legitimate family structures deserving of legal protection. The court ruled that the omission of life partners from the Maintenance of Surviving Spouses Act was unconstitutional. It held that partners in such relationships who had reciprocal duties of support should be entitled to the same rights as married couples, particularly regarding maintenance and inheritance.

This judgment marked a significant step toward the broader recognition of life partnerships in South African law, although the provisions are still limited.

The legal duty of support

A more recent case focused on the duty of support between life partners after the dissolution of a relationship. The applicant and respondent had been in a romantic relationship for nine years and had three children together. The applicant claimed that the respondent had supported her financially during their partnership and continued to do so even after the relationship ended.

The respondent denied there was any duty of support. The applicant argued that their life partnership created a reciprocal duty of support, similar to marriage. She sought interim financial relief, claiming that, without the respondent’s support, she and their children would be left destitute.

The court considered whether life partners, like spouses, should have a legal duty of support that can be enforced during or after the end of their relationship. One of the key arguments presented was that, unlike married couples, life partners currently have no legal remedy to claim interim financial support during a breakup. In cases of divorce, spouses can apply for interim relief, but this does not apply to life partners.

In determining the case, the court weighed the potential harm to the applicant (if she did not receive financial support) against the harm to the respondent (if he was required to pay interim support). Ultimately, the court found that, while there appeared to be a reciprocal duty of support during the relationship, the legal framework did not yet recognise life partnerships. As a result, the court dismissed the application for interim relief, emphasising that more legal development is needed in this area.

The development of the common law

The Constitution requires courts to ensure the common law evolves in line with constitutional values. This includes considering whether current laws are discriminatory or inconsistent with the Constitution. In the context of life partnerships, the courts have been tasked with examining whether the lack of legal protections for life partners, particularly concerning the duty of support, is constitutionally valid.

One judge argued that the current legal position, which fails to recognise a duty of support in life partnerships, constitutes unfair discrimination based on marital status. He suggested the common law be developed to acknowledge this duty in life partnerships, allowing partners to claim support both during and after their relationships, as married spouses can.

However, this view does yet prevail in the legal community. While some judgments have moved toward recognising life partnerships, significant gaps remain, particularly when it comes to providing interim relief or enforcing long-term maintenance obligations.

Remedies for life partners

At present, life partners seeking support or inheritance rights after divorce or the death of their partner face substantial legal challenges. Unlike married couples, they cannot rely on existing family law procedures to claim financial support. Instead, they must challenge the current legal framework or seek alternative remedies, such as developing the common law or invoking constitutional principles.

Life partners looking to claim relief may have to prove their relationship had all the characteristics of a marriage, particularly a reciprocal duty of support. This can be a complex and contentious process, requiring evidence of a conjugal relationship where both partners contributed to the household and supported one another financially and emotionally.

Mitigating strategies – cohabitation agreements and universal partnerships

Life partnerships are increasingly seen as legitimate family structures, but the legal framework does not fully recognise these relationships. As more cases come before the courts, the common law may continue to evolve. Meanwhile, there are two ways to formalise a life partnership to ensure greater certainty of rights when the partnership ends. One is a cohabitation agreement and the other is a universal partnership.

A cohabitation agreement is a relatively simple contract that includes details of a couple’s assets, property and the financial contributions each partner makes to the joint home. A cohabitation agreement, ratified by a legal professional, can provide certainty should the relationship fail, allowing each party to rely on their respective contractual rights and obligations for a fair and equitable distribution of assets. 

A universal partnership affords each partner in a life relationship a right to a share in the property acquired during the relationship. The following requirements must be met: both parties must contribute to the partnership, the partnership must make a profit, it must operate for the benefit of both parties, and the contract between the parties must be legitimate. In a universal partnership both parties agree to put their current and future property in common. If the partnership breaks down, each party can claim their share of the partnership’s assets. However, a universal partnership is difficult to prove. It is advisable to draft a written universal partnership agreement. Ultimately, a cohabitation agreement is a more conclusive option.

Seek professional advice

Simon Dippenaar and Associates Inc. are experts in family and divorce law, based in Cape Town, Johannesburg and Durban. We can help life partners draw up a cohabitation agreement, a universal partnership agreement, or a will. Call us on 086 099 5146 or email sdippenaar@sdlaw.co.za for a conversation in complete confidence.

Further reading:

• Universal partnership agreement. Not getting married? You will need one
• Court asked to permit unmarried couples in life partnerships to claim maintenance when separated
• Survivor in permanent life partnership can claim maintenance from deceased partner’s estate
• Unmarried South Africans and maintenance – what the law says
• Cohabiting couples – ensuring a (legally) supportive environment

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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