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.
The woman said she was fearful of leaving him as he frequently threatened that if she did, she would be left destitute and “end up on the street”. On one such occasion, he threatened to “out-litigate” her and told her that he was “willing to spend millions on lawyers” to ensure that she did “not get a cent” from him.
Preller said many partners, predominantly women, were left destitute and without legal recourse when their life partnership terminated. “This issue affects a substantial number of South Africans, particularly vulnerable women, and some find themselves in permanent life partnerships not out of true choice.
The reality is that, as at 2016, 3.2 million South Africans were cohabiting outside of marriage and that number was reported to be increasing.” Preller said it was mainly unmarried, cohabiting women who were getting the short end of the stick.
The Women’s Legal Centre Trust entered the proceedings as a friend of the court and supported the common law application. Arguments are expected to proceed next month.