Court asked to permit unmarried couples in life partnerships to claim maintenance when separated


Reprinted from, by Zelda Venter – 2023-01-23

Pretoria – The Western Cape High Court is being asked to develop common law legislation to permit unmarried couples in life partnerships to claim maintenance from one another in the event of a separation.

As the law stands, the right is reserved only for heterosexual couples who are legally married.

The development sought is aimed at providing a remedy for maintenance upon the termination of a permanent life partnership, in circumstances where the parties had undertaken reciprocal duties to support one another during the existence of the partnership.

A woman, whose relationship with her partner and the father of her three children has broken down, is trying to claim maintenance from him.

As the law does not make provision for this, and in light of him refusing to financially maintain her, she has turned to court in a bid for the common law to allow for maintenance.

Her lawyer, leading family law expert Bertus Preller, explained that it was the same as a Rule 43 application where couples, pending the finalisation of a divorce, ask for interim maintenance.

The application was sparked by his client (the woman), who is asking that pending the final determination of an action in which she claims against the respondent (her former partner) for the provision of her reasonable maintenance needs.

The first step before she can do this, however, is to ask the court to declare that common law recognises the existence of a duty of support between partners in unmarried, opposite sex partnerships, where the relationship has broken down.

Once she has overcome the hurdle, the woman (who cannot be identified as there are children involved), will ask that her former partner contribute towards her maintenance as well as her legal costs in the pending action.

The parties were involved in a romantic relationship for more than nine years before the man eventually left the family home. Three children were born from the relationship. The parties cohabited from 2015, following the birth of their first child, and the man took care of her.

The woman explained in an affidavit before court that they had met at a gym while the man was married. They fell in love and he eventually left his wife and moved in with her.

She worked at the time, but following the birth of their first child and later, their twin boys, the man, an affluent businessman, convinced her not to work, but to take care of the children.

He subsequently paid for everything and they lived a financially comfortable life. The woman received about R100  000 a month from him.

The relationship, however, finally broke down last year and the man eventually moved out. While he is paying an amount for the upkeep of the children, he refused to pay her maintenance.

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