Unmarried maintenance – no change to common law

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No need to develop common law for unmarried couples to claim maintenance in separation, say judges

Reprinted from iol.com, by Zelda Venter – 2023-03-20

Pretoria – A woman who asked the Western Cape High Court to develop the common law to permit unmarried couples in life partnerships to claim maintenance from one another in the event of separation has lost this leg of her application.

The applicant argued that the lack of legal recourse for life partners to claim maintenance from one another following the termination of their partnership is constitutionally unacceptable since it discriminates on the basis of marital status and gender and constitutes unequal protection before the law.

They said they were not persuaded, given the approach adopted by the applicant in this matter, that they were in a position to make a properly informed decision about whether the common law development she sought was required. “We are not persuaded that development of the common law in the manner proposed by her is necessary or appropriate,” they said.

Judge Cloete, who wrote the judgment, said there were other remedies available to the applicant. “The applicant already has a common law remedy, and her entitlement or otherwise to maintenance rests squarely on that remedy. She must first prove facts establishing that the duty of support existed and that it existed in a familial setting. If proven, her right to legal protection will be established.”

SD Law can help

Simon Dippenaar and Associates Inc. are experts in family and divorce law. We can help unmarried couples in a life partnership draw up a cohabitation agreement or a will. Call us on 086 099 5146 or email sdippenaar@sdlaw.co.za.

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