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Termination of a permanent life partnership and possible claims

There is a decreasing inclination towards marriage, as numerous couples are opting to cohabit as life partners instead of formalizing their commitment through marriage or a civil union. This prompts the frequent query regarding whether an individual involved in such a heterosexual partnership has the right to request financial support when the relationship comes to an end.

In a recent Western Cape High Court matter, in the case of  EW v VH (12272/2022) [2023] ZAWCHC 58 (17 March 2023),  the court had to determine if the applicant, a woman who used to be in a nine year relationship with the respondent, was entitled to maintenance from the respondent after their relationship ended.

The parties had a committed romantic relationship for a span of over nine years, during which they became parents to three minor children. The applicant argued that the respondent had been responsible for covering the financial needs of both herself and the children, rendering them reliant on the respondent's financial support.

The applicant contended that individuals in life partnerships often find themselves in a disadvantaged position when it comes to financial support following the termination of their relationships.

The applicant asked for an order which declared that the two parties were partners in a permanent life partnership, which the respondent ended, and had undertaken reciprocal duties of support.

She asked that the respondent pay maintenance for ten years, and, alternatively, the court should recognise that common law does not recognise the support for unmarried opposite-sex life partners and should develop a common law for support between life partners.

The court delved into the duty of support as follows:

  • Section 7 of the Divorce Act extends legislative protection to spouses in civil marriages, civil unions (including same-sex unions) sanctioned under the Civil Union Act, and customary marriages recognized by the Recognition of Customary Marriages Act;
  • In cases of spousal death, similar legislative relief is granted to the surviving partner through the Maintenance of Surviving Spouses Act;
  • Certain customary marriages encompass widows within the scope of the term "survivor." The Constitutional Court's ruling in Daniels v Campbell clarified that this definition also encompasses widows from monogamous Muslim marriages;
  • In the case of Bwanya v The Master of the High Court and Others, the court determined the exclusion of life partners from the purview of the Act to be unconstitutional. The court mandated the revision of the "survivor" definition to incorporate the "…surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate."
  • Consequently, the Bwanya verdict ruled out the legal validity of distinguishing between reciprocal support duties automatically arising from marriage and those agreed upon in the context of permanent life partnerships.

A permanent romantic relationship does not necessarily equate to a permanent life partnership, wherein both parties mutually undertake support obligations within a familial framework.

The applicant’s entitlement to maintenance hinges on common law principles. She must substantiate the existence of the support obligation within a familial context. Once proven, her right to legal safeguarding is established.

The court's ruling emphasized the absence of a valid differentiation between maintenance originating from a permanent life partnership and that stemming from a marriage.

The court's ultimate verdict asserts the need for equitable financial support for both married couples and individuals in enduring relationships. Central to this is the demonstration of a family-oriented support commitment, which is essential for legal protection. This ruling aligns with the evolving legal landscape that acknowledges the rights of individuals in non-marital relationships, ensuring their eligibility for financial assistance.

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