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[2005] ZACC 2
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Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC) (21 February 2005)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
12/04
RICHARD GORDON VOLKS
NO Appellant
versus
ETHEL ROBINSON First
Respondent
WOMEN’S LEGAL CENTRE
TRUST Second Respondent
MINISTER FOR JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT Third
Respondent
THE MASTER OF THE HIGH
COURT Fourth Respondent
Together with
CENTRE FOR APPLIED
LEGAL STUDIES Amicus Curiae
Heard on : 20 May 2004
Decided on : 21
February 2005
JUDGMENT
SKWEYIYA J:
Introduction
This
appeal and confirmatory proceedings concern the interpretation and
constitutionality of section 2(1), read with section 1
of the
Maintenance of Surviving Spouses Act 27 of 1990 (the Act) which, in
substance, confers on surviving spouses the right
to claim
maintenance from the estates of their deceased spouses if they are
not able to support themselves. The first respondent
(Mrs
Robinson) contends that the survivor of a stable permanent
relationship between two persons of the opposite sex who had
not
been married to each other during their lifetime, but nevertheless
lived a life akin to that of husband and wife, should
be afforded
the same protection that is afforded to the survivor of a marriage
under the provisions of section 2(1) of the Act.
The
central question for consideration in this matter is whether the
protection which the Act affords to a “survivor”
1
should be withheld from survivors of permanent life partnerships.
The High Court (Cape Provincial Division) found that the exclusion
of the surviving partner of a permanent life partnership from the
ambit of the Act was unconstitutional.
2
The present proceedings follow from that order.
Factual
background
Mrs Robinson
was in a permanent life partnership with the late Mr Shandling, an
attorney and senior partner at CK Friedlander
Shandling Volks (the
law firm), from 1985 until the latter’s death in 2001. They were
never married and no children were born
of their relationship.
During the lifetime of the deceased, they had jointly occupied a
flat situated in Cape Town on a continuous
basis from early 1989
until the deceased’s death. She remained in occupation of the
flat until the end of December 2002.
The deceased
had previously been married to Edith Freedman (Mrs Shandling), in
1950. Three children were born of their marriage,
two sons, Martin
and Adrian, and a daughter, Lauren. Mrs Shandling passed away on
27 January 1981 due to lung cancer. The couple’s
children, now
majors, have established families of their own in the United States
of America.
The
description by Mrs Robinson of their relationship is, in broad
terms, accepted by the appellant (Mr Volks). She states that
to a
large extent the deceased had supported her financially. He gave
her R5000 per month in order to cover household necessities
and
would deposit money into her account whenever she needed it. He
also provided her with petrol money from the law firm’s
account
and paid for her car maintenance. She was accepted as a dependant
on his medical aid scheme from January 2000. During
the
relationship she worked intermittently as a freelance journalist
and artist. This employment brought in some small income
which she
used on general living expenses, gifts for the deceased and
personal expenses. She also worked on a voluntary basis
at Fine
Music Radio as a newsreader, programme compiler and presenter.
Once a year,
the deceased would travel to the United States to visit his three
major children and grandchildren and on one occasion
she
accompanied him. Whenever there were social functions at the law
firm or at the radio station they would accompany each
other. They
were accepted as a couple and had many mutual friends. The
deceased suffered from bi-polar disorder/manic depression,
and over
the years she had nursed him through illness and taken him to
hospital.
In terms of
the deceased’s will, Mr Volks, a partner in the law firm, was
appointed as the executor of the deceased estate.
The balance in
the estate for distribution to Mrs Robinson, his three children,
his domestic worker, and three staff members
of the law firm, was
R413 665.37. The bequest to Mrs Robinson constituted a Toyota
motor vehicle, the contents of the flat which
they occupied in Cape
Town, other than those items that were chosen by and reserved for
his three children, and a sum of R100
000. In terms of the will,
Mrs Robinson was entitled to remain in the house for a period not
exceeding nine months.
In April 2002
Mrs Robinson sought legal advice from the Women’s Legal Centre
(the Centre) about her rights to claim maintenance
from the
deceased estate. After consulting with Mr Volks in his capacity as
the executor, the Centre advised her that the residue
in the estate
was minimal and that she should not pursue her claim. In June 2003
she received a copy of the Final Liquidation
and Distribution
Account, which reflected a residue of R248 533.87. In accordance
with the deceased’s will, the residue would
devolve upon his
three children.
During August
2003 the Centre wrote letters to Mr Volks and to the fourth
respondent, the Master of the High Court (the Master),
advising
them of their client’s claim. The appellant’s attorneys
rejected the claim on the basis that Mrs Robinson was not
a
“spouse” for the purposes of the Act.
3
After this
response, Mrs Robinson launched a two-part application in the High
Court. Part A sought an urgent interdict preventing
Mr Volks from
winding up and distributing the assets in the estate, pending the
determination of the constitutional challenge
to the Act, which
relief was sought in Part B of the application. The application
for the interdict was not opposed and was
granted by the High
Court.
The
application relating to the constitutional challenge was set down
for a later date subject to the filing of an amended notice
of
motion, further papers and heads of argument. The Women’s Legal
Centre Trust (the Trust) filed an application to intervene
in this
application. That application was not opposed and the Trust was
admitted as the second applicant in the proceedings.
Both Mrs
Robinson and the Trust relied upon the provisions of section 38 of
the Constitution for standing. They alleged that
they were acting
in their own interests; on behalf of partners in permanent life
partnerships; and in the public interest.
4
The contentions
of the parties in the High Court
In an amended
notice of motion, Mrs Robinson and the Trust sought an order
declaring that she was the “survivor” of the late
Mr Shandling
for the purposes of the Act, and therefore entitled to lodge a
claim for maintenance under the Act. In the event
that it was
found that she did not qualify as a “survivor”
for the
purposes of the Act by virtue of not being “the surviving spouse
in a marriage dissolved by death”, they sought an
order declaring
that the exclusion of the survivor of permanent life partnerships
from the provisions of the Act was unconstitutional.
They
contended that this exclusion violated the provisions of sections
9(3)
5
and 10
6
of the Constitution, in that it discriminated unfairly on the
ground of marital status, and infringed her right to dignity.
In
this regard they submitted that the definition of the words
“survivor”, “spouse” and “marriage” in the Act should
include a reference to survivors of permanent life partnerships.
In relation to
the declaration of invalidity sought, Mr Volks argued that the
reading-in of words to the Act was unacceptable.
He argued that
the entire structure of the Act was premised on the concept of
marriage and protects surviving spouses of such
a marriage. Thus
reading-in, in the form sought, did not deal properly with these
provisions, nor did they fit in with the structure
of the Act.
Mr Volks
argued that in the event that the court found that the Act was
inconsistent with the Constitution and invalid, it would
not be
just and equitable for an order to apply to permanent life
partnerships in respect of which the partner had already died.
He
argued for an order which would only have prospective effect. He
argued that a retrospective order would not sufficiently
protect
the freedom and dignity of the deceased. He also argued that the
relief sought by Mrs Robinson and the Trust may affect
other
legislation like the Administration of Estates Act.
7
He argued
further that Mrs Robinson chose to live with Mr Shandling without
entering into a marriage although there was no legal
or other
impediment to marrying. There was therefore no reason in law or in
principle why the laws of marriage should be imposed
upon the
deceased, his estate, and his heirs. He argued that it would
constitute an infringement of the deceased’s freedom
and dignity
to have the consequences of marriage imposed in circumstances where
there was a clear choice not to enter into a
marriage relationship.
As evidence of this choice on the part of the deceased, he
referred to a statement that Mr Shandling
made to him that “if he
were ever single again he would not marry”. Mr Volks also relied
on the fact that he referred to
Mrs Robinson as “my friend” in
his will, whereas he referred to his deceased wife, Mrs Shandling,
as “my wife”.
Mr Volks also
contended that Mr Shandling, in terms of his will, had made a
choice as to how his assets would be disposed of.
He did this with
an understanding that the laws of marriage would not apply to his
estate. His freedom and dignity would be
violated if his choice as
to how to dispose of his assets were to be overridden by a court
permitting a claim for maintenance
against his estate. Indeed his
right not to be arbitrarily deprived of property in terms of
section 25(1) of the Constitution
would be infringed.
In short, he
argued that the deceased’s freedom and dignity would be violated
if his fundamental life choices, not to marry
and to dispose of his
property as he wanted, were to be overridden by a court permitting
a maintenance claim against his estate.
He submitted that
different considerations may have applied if the deceased had died
intestate, but that this was not the case.
For these reasons, he
urged that even if the Act were thought to involve discrimination,
the discrimination was not unfair.
Alternatively, the
discrimination, if unfair, would be justifiable under section 36(1)
of the Constitution.
In response,
Mrs Robinson submitted that for all intents and purposes they had
lived their lives as a married couple, and that
she was at all
times prepared to marry Mr Shandling. In any event, she went on to
state that the fact that they were not married
is not a material
consideration which a court should have regard to in determining
whether she was entitled to maintenance under
the Act. In
determining this question she argued for the court to consider the
nature of their relationship, and cited the following
criteria:
“
a) our commitment to a
shared household;
b) the financial and other
dependence between us;
c) the duration of our
relationship;
d) the roles we played in our
relationship in relation to each other.”
In reply to
the argument on choice in relation to property disposition, she
argued that if they were married and he had disinherited
her or had
left insufficient means for her maintenance, she would have been
entitled to claim maintenance under the Act. She
also contended
that the Act was intended to provide for vulnerable widows or
persons in her position where testators did not
properly provide
for their dependants.
The decision of
the High Court
The High Court
noted that there are significant differences between a marriage and
a permanent life partnership. In this regard
the court stated:
“
Apart from the profound
religious significance attached to the institution of marriage,
there are important definitional differences.
For example, upon the
conclusion of a marriage ceremony, the relationship between the two
parties has immediate legal significance.
In the case of a domestic
life partnership, the determination of the nature of the
relationship can only take place after a lengthy
period of time,
only after the lapse of which period, the criteria enunciated above
by both Goldblatt
[2003 (120)
SALJ
610
at 625] and
L’Heureux-Dubé J [
Nova Scotia (Attorney General) v Walsh
2002 SCC 83
at paras 126-36] can be shown to exist. In this case,
the enquiry requires the benefit of evidence which illustrates that
the
relationship is of a permanent nature, at which stage, it can be
concluded that the parties are involved in a domestic life
partnership.”
8
(references inserted)
Based on the
nature of the relationship between Mrs Robinson and the late Mr
Shandling, the High Court concluded that it was clear
“
that, well before Mr
Shandling’s death, a life partnership existed between the two and
that they regarded themselves as being
involved in a permanent and
intimate life partnership.”
9
Adopting the
equality test formulated in
Harksen v Lane NO and Others
,
10
the High Court found that the Act differentiated between married
spouses and unmarried cohabitants on the listed ground of marital
status and therefore unfair discrimination was presumed. It held
that there were no justificatory grounds for the unfair
discrimination,
and concluded that Mrs Robinson’s right to
equality had been unfairly eroded.
The High Court
stated that it was trite that one of the core commitments of our
constitutional society was the recognition of
the dignity of
difference, which accords respect to the existence of domestic
partnerships and those who live in them. The court
stated that:
“
If there were clear evidence
that parties expressly, by choice, decided to eschew any possible
financial benefits which flowed from
a marriage and, for this reason
(or notwithstanding this position), chose to live within the context
of a domestic life partnership,
there may be an argument, . . . that
a surviving partner such as [Mrs Robinson] could not successfully
launch a constitutional
challenge to the Act.”
11
The court concluded that, in this case
“
there is little beyond the
speculation of [Mr Volks] that a conscious choice was made by [Mr
Shandling] and [Mrs Robinson] to live
in terms of a relationship in
which none of the benefits of marriage now sought were to apply.”
12
Relying on
certain factual information in an article by Goldblatt
13
to the effect that for a range of reasons domestic partnerships
were a significant part of South African family life, Davis J
stated:
“
To ignore the arrangement
and impose a particular religious view on their world is to
undermine the dignity of difference and to
render the guarantee of
equality somewhat illusory insofar as a significant percentage of
the population is concerned.”
14
He therefore held
that the breach of both the rights to equality and dignity could
not be justified.
The High Court
made an order in the following terms:
“
1. It is declared that: The
omission from the definition of ‘survivor’ in [section] 1 of the
Maintenance of Surviving Spouses
Act 27 of 1990 of the words ‘and
includes the surviving partner of a life partnership’ at the end
of the existing definition
is unconstitutional and invalid.
2. The definition of ‘survivor’
in [section] 1 of the Maintenance of Surviving Spouses Act 27 of
1990 is to be read as if it
included the following words after the
words ‘dissolved by death’: ‘and includes the surviving
partner of a life partnership’.
3. The omission from the
definition in [section] 1 of the Maintenance of Surviving Spouses
Act 27 of 1990 of the following, at the
end of the existing
definitions, is unconstitutional and invalid:
‘ “
Spouse” for the
purposes of this Act shall include a person in a permanent life
partnership’;
‘ “
Marriage” for the
purposes of this Act shall include a permanent life partnership.’
4. Section 1 of the Maintenance
of Surviving Spouses Act 27 of 1990 is to be read as though it
included the following at the end
of the existing definition:
‘ “
Spouse” for the
purposes of this Act shall include a person in a permanent life
partnership’;
‘ “
Marriage” for the
purposes of this Act shall include a permanent life partnership.’
5. The order in paras 1, 2, 3
and 4 above shall have no effect on the validity of any acts
performed in respect of the administration
of a deceased estate that
has finally been wound up by the date of this order.”
15
Proceedings
before this Court
At the hearing
counsel for Mr Volks informed the Court that they had decided,
after consultation with him, to withdraw the appeal
and opposition
to the confirmation proceeding in so far as this related to the
equality challenge. In other words, Mr Volks
conceded the
correctness of the unconstitutionality of the provision in issue,
as found by the High Court. It is unfortunate
that the Court was
not informed of this before the date of hearing. It is also
regrettable that we were not able to hear full
argument from any
party supporting the constitutionality of the provision. It would
also seem that the heirs have not been informed
of this decision.
However it is
incumbent upon this Court to fully consider the question of
constitutionality, despite the abandonment of the appeal.
Mrs Robinson
and the Trust, in their heads of argument, sought confirmation of
the order in its entirety. However, in oral argument
counsel
indicated that they were of the view that if words were to be
read-in, they would require that the Act be extended to
cover
partners only where there was a reciprocal duty of support present,
not dissimilar from the reading-in remedy ordered by
this Court in
Satchwell
.
16
The third
respondent, the Minister of Justice and Constitutional Development
(the Minister), and the Master had issued a notice
of intention to
abide the decision of the High Court. Yet, in this Court they
submitted heads of argument and made oral submissions
challenging
the confirmation of the remedy given in the High Court. They
argued for judicial restraint in light of the current
law reform
process being explored in this area by the South African Law Reform
Commission (the Commission). They also argued
that the order
should not be retrospective or, if it were to be, that it should be
limited so as to alleviate what may amount
to an insurmountable
administrative burden on the Master, given that it is the Master’s
office which is tasked in most instances
with the administration,
winding up and distribution of deceased estates.
The Centre for
Applied Legal Studies (CALS) argued in favour of confirmation.
Much of their argument was directed at the vulnerability
of women
in cohabitation relationships. They also argued for a remedy which
would extend the Act to cover polygynous cohabitation
relationships, where for instance the male partner was still
married during the duration of his cohabitation with another.
Further
evidence
CALS seeks to
persuade us to accept certain additional evidence aimed largely at
demonstrating the vulnerability of women in existing
relationships
between unmarried cohabitants, and of the fact that few women have
the choice about whether they should marry.
The admission of
additional evidence is regulated by the provisions of rule 31 of
the rules of this Court.
17
Subsection 1 provides as follows:
“
(1) Any party to any
proceedings before the Court and an amicus curiae properly admitted
by the Court in any proceedings shall be
entitled, in documents
lodged with the Registrar in terms of these rules, to canvass
factual material that is relevant to the determination
of the issues
before the Court and that does not specifically appear on the
record: Provided that such facts -
(a) are common cause or
otherwise incontrovertible; or
(b) are of an official,
scientific, technical or statistical nature capable of easy
verification.”
In the case of
In Re Certain Amicus Curiae Applications: Minister of Health and
Others v Treatment Action Campaign and Others,
18
the Court considered the predecessor to rule 31
19
and held:
“
That Rule permits a duly
admitted amicus ‘to canvass factual material which is relevant to
the determination of the issues before
the Court and which do not
specifically appear on the record’. However, this is subject to
the condition that such facts ‘are
common cause or otherwise
incontrovertible’ or ‘are of an official, scientific, technical
or statistical nature, capable of
easy verification’. This Rule
has no application where the facts sought to be canvassed are
disputed. A dispute as to the facts
may and, if genuine, usually
will demonstrate that they are not ‘incontrovertible’ or
‘capable of easy verification’.
Where this is so, the material
will be inadmissible.”
20
(footnote omitted)
The whole of
the report tendered by the amicus cannot be considered to consist
merely of evidence of a statistical or incontrovertible
nature, or
which is common cause. It is apparent that the conclusions and
solutions offered are not incontrovertible.
21
Furthermore, Mr Volks does not accept that the evidence sought to
be introduced is necessarily incontrovertible or uncontroversial.

Indeed the report in its own words notes:
“
As is evident from our
methodology, our findings are
not representative
but simply
indicate trends which confirm our
general assumptions about
cohabitation
.”
22
(my emphasis)
In the executive
summary the study was defined as “qualitative primary research
amongst poor ‘African’ and ‘Coloured’
communities”.
23
Moreover, the
entire study consisted of interviews with only 68 people in eight
sites. This non-representative sampling, which
was not
quantitative but qualitative and was conducted in only eight poor
communities, cannot be said to be statistical or scientific
evidence capable of easy verification, nor can it be said to be
incontrovertible. A more representative study might well lead
to
different conclusions.
The evidence
is not directly relevant to the issue before us. That issue is
whether the protection afforded to survivors of marriage
under
section 2(1) of the Act should be extended to the survivors of
permanent life partnerships. The admission of the evidence
would
impermissibly broaden the case before us. It cannot be admitted.
The history and
purpose of the Maintenance of Surviving Spouses Act 27 of 1990
This Act has
its own unique history which is relevant to its goal or object. In
Glazer v Glazer, NO
24
the Appellate Division refused to extend the principle applied in
Carelse v Estate De Vries
,
25
that a father’s estate was liable to support his children, to
cases of a spouse requiring support to enable her to claim
maintenance
from her deceased husband’s estate.
26
The Act
emanates from the recommendations of the Commission’s report:
“Review of the Law of Succession: The introduction of
a
legitimate portion or the granting of a right to maintenance to the
surviving spouse” (Project 22), submitted in August 1987.
The
Commission was of the view that the institution of a legitimate
portion would not be the appropriate solution to the problem,
and
recommended instead that a claim for maintenance be given by
operation of the law. It is regrettable that it took as many
as
three years before the recommendations of the report were given
effect to.
In terms of
section 2(1) of the Act a surviving spouse will, in so far as he is
not able to provide therefor from his own means
and earnings, have
a claim against the deceased spouse’s estate “for the provision
of his reasonable maintenance needs until
his death or remarriage.”
“Own means” of the surviving spouse includes
“
any money or property or
other financial benefit accruing to the survivor in terms of the
matrimonial property law or the law of
succession or otherwise at
the death of the deceased spouse”.
27
The
claim by the surviving spouse will be dealt with in accordance with
the Administration of Estates Act.
28
The purpose of
the provision is plain. The challenged law is intended to provide
for the reasonable maintenance needs of parties
to a marriage that
is dissolved by the death of one of them. The aim is to extend an
invariable consequence of marriage beyond
the death of one of the
parties. The legislation is intended to deal with the perceived
unfairness arising from the fact that
maintenance obligations of
parties to a marriage cease upon death. The challenged provision
is aimed at eliminating this perceived
unfairness and no more. The
obligation to maintain that exists during marriage passes to the
estate. The provision does not
confer a benefit on the parties in
the sense of a benefit that either of them would acquire from the
state or a third party on
the death of the other. It seeks to
regulate the consequences of marriage and speaks predominantly to
those who wish to be married.
It says to them: “If you get
married your obligation to maintain each other is no longer limited
until one of you dies. From
now on, the estate of that partner who
has the misfortune to predecease the survivor will continue to have
maintenance obligations.”
Interpretation
Before
evaluating the constitutional challenge, it is necessary to
interpret the relevant provisions of the Act in the light of
its
history. Section 2(1) of the Act provides:
“
If a
marriage
is
dissolved by death after the commencement of this Act the survivor
shall have a claim against the estate of the deceased spouse
for the
provision of his reasonable maintenance needs until his death or
remarriage
in so far as he is not able to provide therefor
from his own means and earnings.” (my emphasis)
Mrs Robinson and
the Trust argued both in the High Court and in this Court that the
Act could be interpreted so as to include heterosexual
cohabitants.
However, for the reasons considered below, I agree with the
conclusion of the High Court that the Act is not reasonably
capable
of being so interpreted.
It is patent
from the definition in the Act that, “survivor” means “the
surviving spouse in a marriage dissolved by death.”
It would
seem that the only possible meaning for “marriage” when viewed
in the context of the Act is one recognised either
by the law or by
a religion.
29
This is evident both from the use of the words “spouse” and
“marriage” dissolved by death.
Furthermore,
in
Satchwell
30
this Court was very definitive in its interpretation of the term
“surviving spouse” in the Judges Remuneration and Conditions
of
Employment Act,
31
and stated:
“
There is no definition of
the word ‘spouse’ in the provisions under attack. In the
circumstances the ordinary wording of the
provisions must be taken
to refer to a party to a marriage that is recognised as valid in law
and not beyond that. . . . The context
in which ‘spouse’ is used
in the impugned provisions does not suggest a wider meaning, nor do
I know of one. Accordingly,
a number of relationships are excluded,
such as same-sex partnerships and
permanent life partnerships
between unmarried heterosexual cohabitants.
”
32
(my emphasis)
In addition,
section 2(1) refers to the provision of maintenance until “death
or remarriage”. This would be illogical if
the phrase “surviving
spouse” included survivors of permanent life partnerships, who
generally may not have been previously
married and could therefore
not get remarried.
As noted by
this Court in the
Hyundai
33
case:
“
On the one hand, it is the
duty of a judicial officer to interpret legislation in conformity
with the Constitution so far as this
is reasonably possible. On the
other hand, the Legislature is under a duty to pass legislation that
is reasonably clear and precise,
enabling citizens and officials to
understand what is expected of them. A balance will often have to
be struck as to how this
tension is to be resolved when considering
the constitutionality of legislation. There will be occasions when
a judicial officer
will find that the legislation, though open to a
meaning which would be unconstitutional, is reasonably capable of
being read ‘in
conformity with the Constitution’. Such an
interpretation should not, however, be unduly strained.”
34
(footnotes omitted)
I find that an
interpretation of the Act that would include permanent life
partnerships would be “unduly strained” and manifestly
inconsistent with the context and structure of the text. The Act
is incapable of being interpreted so as to include permanent
life
partners.
Equality
challenge
The basis of
the High Court’s finding of unconstitutionality is that the Act
excludes permanent life partners from its protection
and thereby
violates the anti-discrimination provision in section 9(3) of the
Constitution.
Section 9
provides:
“
(1) Everyone is equal before
the law and has the right to equal protection and benefit of the
law.
(2) Equality includes the full
and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may
be taken.
(3) The state may not unfairly
discriminate directly or indirectly against anyone on one or more
grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
culture, language and
birth.
(4) No person may unfairly
discriminate directly or indirectly against anyone on one
or more grounds in terms of
subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination.
(5) Discrimination on one or
more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination
is fair.”
In the
Harksen
35
case this Court laid out the general approach to equality
analysis and said:
“
(a) Does the provision
differentiate between people or categories of people? If so, does
the differentiation bear a rational connection
to a legitimate
government purpose? If it does not then there is a violation of
[section] 8(1).
36
Even if it does bear a rational connection, it might nevertheless
amount to discrimination.
(b) Does the differentiation
amount to unfair discrimination? This requires a two-stage
analysis:
(i) Firstly, does the
differentiation amount to ‘discrimination’? If it is on a
specified ground, then discrimination will
have been established.
If it is not on a specified ground, then whether or not there is
discrimination will depend upon whether,
objectively, the ground is
based on attributes and characteristics which have the potential to
impair the fundamental human dignity
of persons as human beings or
to affect them adversely in a comparably serious manner.
(ii) If the differentiation
amounts to ‘discrimination’, does it amount to ‘unfair
discrimination’? If it has been found
to have been on a specified
ground, then unfairness will be presumed. If on an unspecified
ground, unfairness will have to be
established by the complainant.
The test of unfairness focuses primarily on the impact of the
discrimination on the complainant
and others in his or her
situation.
If, at the end of this stage of
the enquiry, the differentiation is found not to be unfair, then
there will be no violation of [section]
8(2).
37
(c) If the discrimination is
found to be unfair then a determination will have to be made as to
whether the provision can be justified
under the limitations clause
(section 33 of the interim Constitution).”
38
The question
for determination in this case is whether the exclusion of
survivors of permanent life partnerships from the protection
of the
Act constitutes unfair discrimination. The Act draws a distinction
between married people and unmarried people by including
only the
former. We are not concerned with the exclusion of survivors of
gay and lesbian relationships, nor are we concerned
with survivors
of polygynous relationships.
Although it is
arguable whether the distinction or differentiation amounts to
discrimination, I am prepared to accept that it
amounts to
discrimination based on marital status. That being the case, the
discrimination is presumed to be unfair in terms
of section 9(5) of
the Constitution. The question however is whether it is indeed
unfair discrimination.
In determining
whether discrimination is unfair one must consider the differences
between the two groups. Although there is no
right to marry and to
found a family contained in Chapter 2 of the Constitution marriage
as an institution is recognised therein.
This is clear from the
provisions of section 15(3)(a)(i) of the Constitution.
39
The constitutional recognition of marriage is an important
starting point for determining the question presented in this case.
Marriage and
family are important social institutions in our society. Marriage
has a central and special place, and forms one
of the important
bases for family life in our society.
40
In this regard O’Regan J notes in
Dawood
41
that:
“
Marriage and the family are
social institutions of vital importance. Entering into and
sustaining a marriage is a matter of intense
private significance to
the parties to that marriage for they make a promise to one another
to establish and maintain an intimate
relationship for the rest of
their lives which they acknowledge obliges them to support one
another, to live together and to be
faithful to one another. Such
relationships are of profound significance to the individuals
concerned. But such relationships
have more than personal
significance, at least in part because human beings are social
beings whose humanity is expressed through
their relationships with
others. Entering into marriage therefore is to enter into a
relationship that has public significance
as well.
The institutions of marriage
and the family are important social institutions that provide for
the security, support and companionship
of members of our society
and bear an important role in the rearing of children. The
celebration of a marriage gives rise to moral
and legal obligations,
particularly the reciprocal duty of support placed upon spouses and
their joint responsibility for supporting
and raising children born
of the marriage. These legal obligations perform an important
social function. This importance is symbolically
acknowledged in
part by the fact that marriage is celebrated generally in a public
ceremony, often before family and close friends.”
42
(footnotes omitted)
Marriage is
also an internationally recognised social institution.
43
From this
recognition, it follows that the law may distinguish between
married people and unmarried people. Indeed, this Court
in
Fraser
44
noted:
“
In the context of certain
laws there would often be some historical and logical justification
for discriminating between married
and unmarried persons and the
protection of the institution of marriage is a legitimate area for
the law to concern itself with.”
45
The
law may in appropriate circumstances accord benefits to married
people which it
does
not accord to unmarried people.
Mrs Robinson
never married the late Mr Shandling. There is a fundamental
difference between her position and spouses or survivors
who are
predeceased by their husbands. Her relationship with Mr Shandling
is one in which each was free to continue or not,
and from which
each was free to withdraw at will, without obligation and without
legal or other formalities. There are a wide
range of legal
privileges and obligations that are triggered by the contract of
marriage. In a marriage the spouses’ rights
are largely fixed by
law and not by agreement, unlike in the case of parties who cohabit
without being married.
The
distinction between married and unmarried people cannot be said to
be unfair when considered in the larger context of the
rights and
obligations uniquely attached to marriage. Whilst there is a
reciprocal duty of support between married persons,
no duty of
support arises by operation of law in the case of unmarried
cohabitants. The maintenance benefit in section 2(1)
of the Act
falls within the scope of the maintenance support obligation
attached to marriage. The Act applies to persons in
respect of
whom the deceased person (spouse) would have remained legally
liable for maintenance, by operation of law, had he
or she not
died.
It must be
borne in mind that the legislature, by enacting the law, in fact
qualified the right to freedom of testation. It said
that freedom
of testation would be limited to the extent that where marriage
obliged the parties to it to maintain each other,
freedom of
testation ought not to result in the termination of the obligation
upon death. The question we have to answer is
whether it was
unfair for the legislature not to qualify freedom of testation
further, by creating a posthumous duty to maintain
on cohabitants.
In his
judgment Sachs J envisages two categories of people within this
broad class of unmarried cohabitants against whom the disputed
law
is unfairly discriminatory.
46
The first category is the people who by written instrument or by
necessary implication agree to live together, to maintain each
other and to give each other support of every kind. It is
contended that for the law not to oblige survivors of relationships
in this category to be maintained entails unfair discrimination
against the survivor simply because the survivor does not have
the
piece of paper which is the marriage certificate.
47
That is an over-simplification. Marriage is not merely a piece of
paper. Couples who choose to marry enter the agreement fully
cognisant of the legal obligations which arise by operation of law
upon the conclusion of the marriage. These obligations arise
as
soon as the marriage is concluded, without the need for any further
agreement. They include obligations that extend beyond
the
termination of marriage and even after death. To the extent that
any obligations arise between cohabitants during the subsistence
of
their relationship, these arise by agreement and only to the extent
of that agreement. The Constitution does not require
the
imposition of an obligation on the estate of a deceased person, in
circumstances where the law attaches no such obligation
during the
deceased’s lifetime, and there is no intention on the part of the
deceased to undertake such an obligation.
The second
category referred to by Sachs J is the relationship in which the
deceased male partner refused to marry the woman who
cared for him,
put everything into the relationship and gave her heart and soul to
it, bringing up a number of children born
of the relationship
between them in the process.
48
I have sympathy for surviving partners who fall within this
category. The conduct of the male partner is unconscionable in
these cases. There is a strong argument that partners ought to be
obliged to maintain each other during their lifetime in certain
circumstances.
I conclude
that it is not unfair to make a distinction between survivors of a
marriage on the one hand, and survivors of a heterosexual
cohabitation relationship on the other. In the context of the
provision for maintenance of the survivor of a marriage by the
estate of the deceased, it is entirely appropriate not to impose a
duty upon the estate where none arose by operation of law
during
the lifetime of the deceased. Such an imposition would be
incongruous, unfair, irrational and untenable.
The right to
dignity
It was also
contended that the failure to make provision for the people in the
class to which Mrs Robinson belongs offends the
dignity of members
of that class. Section 10 of the Constitution provides:
“
Everyone has inherent
dignity and the right to have their dignity respected and
protected.”
I do not agree
that the right to dignity has been infringed. Mrs Robinson is not
being told that her dignity is worth less than
that of someone who
is married. She is simply told that there is a fundamental
difference between her relationship and a marriage
relationship in
relation to maintenance. It is that people in a marriage are
obliged to maintain each other by operation of
law and without
further agreement or formalities. People in the class of
relationships to which she belongs are not in that
position. In
the circumstances, it is not appropriate that an obligation that
did not exist before death be posthumously imposed.
Vulnerability
and economic dependence
Structural
dependence of women in marriage and in relationships of
heterosexual unmarried couples is a reality in our country
and in
other countries.
49
Many women become economically dependent on men and are left
destitute and suffer hardships on the death of their male partners.
Much of the argument and many of the passages of the judgment of
Sachs J express concern for the plight of vulnerable women in
cohabitation relationships. This concern arises because women
remain generally less powerful in these relationships. They often
wish to be married, but the nature of the power relations within
the relationship makes a translation of that wish into reality
difficult. This is because the more powerful participants in the
relationship would not agree to be bound by marriage. The
consequences are that women are taken advantage of and the
essential contributions by women to a joint household through
labour
and emotional support is not compensated for.
I agree that
the women in this category suffer considerably. But it is not the
under-inclusiveness of section 2(1) which is the
cause of their
misery. The plight of a woman who is the survivor in a
cohabitation relationship is the result of the absence
of any law
that places rights and obligations on people who are partners
within relationships of this kind during their lifetimes.
I accept
that laws aimed at regulating these relationships in order to
ensure that a vulnerable partner within the relationship
is not
unfairly taken advantage of are appropriate.
In the case of
the very poor and the illiterate the effects of vulnerability are
more pronounced. The vulnerability of this group
of women is, in
my view, part of a broader societal reality that must be corrected
through the empowerment of women and social
policies by the
legislature. It is a widespread problem that needs more than just
implementation of what, in their case, would
be no more than
palliative measures. It needs more than the extension of benefits
under section 2(1) to survivors who are predeceased
by their
partners. Unfortunately the reality is that maintenance claims in
a poverty situation are unlikely to alleviate vulnerability
in any
meaningful way.
Both
dissenting judgments make it plain that there are many ways in
which these relationships can be regulated. It is not for
us to
decide how this should be done. In any event, this case is not
concerned with the provision that should be made to ensure
that
partners in relationships other than marriage treat each other
fairly during their lifetime. That does not mean, however,
that
fairness in the case of people who are married will be the same as
fairness between parties to a permanent life partnership.
It is up
to the legislature to make provision for this.
As I have
already said, it is not unfair not to impose a duty upon the estate
of a deceased where no duty of that kind arose by
operation of law
during the lifetime of that person. I have a genuine concern for
vulnerable women who cannot marry despite
the fact that they wish
to and who become the victims of cohabitation relationships. I do
not think however that their cause
is truly assisted by an
extension of section 2(1) of the Act or that vulnerable women would
be unfairly discriminated against
if this were not done. The
answer lies in legal provisions that will make a real difference to
vulnerable women at a time when
both partners to the relationship
are still alive. Once provision is made for this, the legal
context in which section 2(1)
falls to be evaluated will change
drastically.
Costs
Neither Mr
Volks nor Mrs Robinson and the Trust sought costs in this Court.
However, Mrs Robinson and the Trust argued that the
Minister and
the Master, who had originally abided the decision of the High
Court, but who at a very late stage sought to tender
evidence and
argument in this Court, should be ordered to pay the costs of the
appellant on a punitive scale. They argued that
the effect of
their late intervention would have caused additional costs to Mr
Volks which would inevitably be drawn from the
estate. However, Mr
Volks abides the decision of this Court in regard to this latter
issue and does not seek a costs order against
the Minister and the
Master. There can be no doubt that it is regrettable that they did
not intervene in the proceedings earlier.
However, no postponement
was occasioned by their late intervention, and generally it is
helpful to the Court for the state’s
attitude to constitutional
challenges to legislation to be before it. Although the
desirability of having that information before
the Court cannot
excuse non-compliance with its rules, I am of the view that in this
case it would be inappropriate to make the
costs order sought by
Mrs Robinson and the Trust against the Minister and the Master. In
the circumstances, I conclude that
no order should be made as to
costs in this matter.
Order
I make the
following order:
The order
of the High Court declaring section 1 of the Maintenance of
Surviving Spouses Act 27 of 1990 inconsistent with
the
Constitution is not confirmed.
The appeal
is upheld.
Chaskalson CJ,
Langa DCJ, Moseneke J, Ngcobo J, Van der Westhuizen J and Yacoob J
concur in the judgment of Skweyiya J.
NGCOBO J:
Section 2(1)
read with section 1 of the Maintenance of Surviving Spouses Act, 27
of 1990 (the Act), confers on surviving spouses
the right to claim
maintenance from the estates of their deceased spouses if they are
unable to support themselves. The question
presented in this case
is whether this right should also be conferred upon survivors of
permanent life partnerships between two
persons of the opposite sex
who were not married to each other but nevertheless lived a life
that was akin to that of husband
and wife. The High Court (Cape of
Good Hope Division) took the view that it should. It therefore
concluded that the exclusion
of survivors of such partnerships from
the protection of the Act is unconstitutional. The present
proceedings are a sequel.
Mrs Robinson,
the first respondent, is a survivor of a permanent life
partnership. Her deceased partner is Mr Shandling, who
was a
senior partner at a Cape Town law firm. Mrs Robinson took the view
that survivors of such a relationship are entitled
to the
protection afforded to surviving spouses by the Act. She lodged a
claim for maintenance under the Act against the estate
of the
deceased. The executor of the estate of the deceased, the
appellant, rejected the claim, taking the view that such survivors
do not fall within the ambit of the protection afforded by the Act.
The rejection of the claim prompted, amongst other things,
a
constitutional challenge directed at the provisions of the Act.
The High Court
found that the provisions of the Act are incapable of being
construed in a manner that would bring survivors of
permanent life
partnerships within the ambit of the Act. The problem, the High
Court appears to have found, lay in the definition
of the word
“survivor” in section 1 of the Act, which did not include
persons involved in permanent life partnerships. This
exclusion,
the court found, unfairly discriminated against survivors of
permanent life partnerships on the basis of marital status.
It
therefore concluded that section 2(1) read with the definition of
“survivor” in section 1 of the Act is unconstitutional
in that
it contravenes sections 9 and 10 of the Constitution. It is this
conclusion that is now in issue before this Court.
Section 9 of
the Constitution provides:
“
(1) Everyone is equal before
the law and has the right to equal protection and benefit of the
law.
(2) Equality includes the full
and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may
be taken.
(3) The state may not unfairly
discriminate directly or indirectly against anyone on one or more
grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
culture, language and
birth.
(4) No person may unfairly
discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3).
National legislation must be
enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or
more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination
is fair.”
And section 10 of the
Constitution provides: “Everyone has inherent dignity and the
right to have their dignity respected and
protected.”
That the Act
differentiates between survivors of marriages and survivors of
permanent life partnerships is patent. The provisions
of the Act
are aimed at providing maintenance and support for survivors of
marriages. The legitimacy of this governmental purpose
cannot be
gainsaid. Nor can it be doubted that the differentiation that the
Act makes is rationally connected to that purpose.
The next
question is whether the differentiation between survivors of
marriages and survivors of permanent life partnerships
constitutes
unfair discrimination.
For the
purposes of this judgment, I am prepared to accept that the
differentiation involved here constitutes discrimination.
The
differentiation is on the ground of marital status, a ground listed
in subsection 9(3) of the Constitution. That being
the case, the
discrimination is presumed to be unfair under subsection 9(5). The
ultimate question for determination therefore
is whether the
provisions of section 2(1) read with section 1 of the Act do in
fact discriminate unfairly against survivors of
permanent life
partnerships.
The proper approach to the equality analysis is that set out in the
President of the Republic of South Africa and Another v Hugo
50
and
Harksen v Lane NO and Others
51
cases.
The nature of
unfairness contemplated by the provisions of section 9 of the
Constitution has been considered by this Court, albeit
in the
context of section 8 of the interim Constitution, the predecessor
to section 9. In the
Hugo
case, this Court held that:
“
The prohibition on unfair
discrimination in the interim Constitution seeks not only to avoid
discrimination against people who are
members of disadvantaged
groups. It seeks more than that. At the heart of the prohibition
of unfair discrimination lies a recognition
that the purpose of our
new constitutional and democratic order is the establishment of a
society in which all human beings will
be accorded equal dignity and
respect regardless of their membership of particular groups.”
52
Dignity is an underlying consideration in the determination of
unfairness. Thus in the
Harksen
case, this Court held that
“[t]he prohibition of unfair discrimination in the Constitution
provides a bulwark against invasions
which impair human dignity or
which affect people adversely in a comparably serious manner.”
53
While legislation may make distinctions, those “distinctions
that treat certain people as second-class citizens, that demean
them, that treat them as less capable for no good reason, or that
otherwise offend fundamental human dignity”
54
cannot be tolerated. In the
final analysis, it is the
impact of discrimination on the survivors of permanent life
partnerships that is the determining factor
regarding the
unfairness of the discrimination in this case.
55
The starting
point in determining the fairness or otherwise of the
discrimination involved in this case is the Constitution itself.

Although our Constitution contains no express provision protecting
the institution of marriage, it nevertheless recognises the
right
freely to marry and to raise a family. In
Dawood and Another v
Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and
Another v Minister of Home
Affairs and Others
, this Court commented as follows on the
absence of an express provision protecting the right to family life
or the right of spouses
to cohabit:
“
The omission of such a right
from the Constitution was challenged during the first certification
proceedings on the basis that such
a right constituted a
‘universally accepted fundamental right’ which in terms of
Constitutional Principle II had to be entrenched
in the
Constitution. The Court observed from its survey of international
instruments that States are obliged in terms of international
human
rights law to protect the rights of persons freely to marry and
raise a family. However, it also observed that these obligations
are achieved in a great variety of ways in different human rights
instruments.
. . .
The Court therefore concluded
that the new constitutional text, although it contained no express
clause protecting the right to
family life, nevertheless met the
obligations imposed by international human rights law to protect the
rights of persons freely
to marry and to raise a family.”
56
(footnotes omitted)
There can be no doubt that our Constitution recognises the
institution of marriage. This much is apparent from section
15(3)(a)(i)
of the Constitution which in substance makes provision
for the recognition of “marriages concluded under any tradition,
or
a system of religious, personal or family law.” This Court
too has recognised the importance of marriage as an institution.

One need only refer to the
Dawood
case, where this Court
said the following concerning the institution of marriage:
“
Marriage and the family are
social institutions of vital importance. Entering into and
sustaining a marriage is a matter of intense
private significance to
the parties to that marriage for they make a promise to one another
to establish and maintain an intimate
relationship for the rest of
their lives which they acknowledge obliges them to support one
another, to live together and to be
faithful to one another. Such
relationships are of profound significance to the individuals
concerned. But such relationships
have more than personal
significance, at least in part because human beings are social
beings whose humanity is expressed through
their relationships with
others. Entering into marriage therefore is to enter into a
relationship that has public significance
as well.
The institutions of marriage
and the family are important social institutions that provide for
the security, support and companionship
of members of our society
and bear an important role in the rearing of children. The
celebration of a marriage gives rise to moral
and legal obligations,
particularly the reciprocal duty of support placed upon spouses and
their joint responsibility for supporting
and raising children born
of the marriage. These legal obligations perform an important
social function. This importance is symbolically
acknowledged in
part by the fact that marriage is celebrated generally in a public
ceremony, often before family and close friends.”
57
(footnotes omitted)
The
constitutional recognition of the right freely to marry and the
institution of marriage is consistent with the obligations
imposed
on our country by international and regional human rights
instruments which impose obligations upon states to respect
and
protect marriage. The African [Banjul] Charter on Human and
Peoples’ Rights, 1981
58
recognises the importance of marriage and the family. Article
18(1) provides that the “family shall be the natural unit and
basis of society.” The relevant part of
article
18 provides that:
“
1. The family shall be the
natural unit and basis of society. It shall be protected by the
State which shall take care of its physical
and moral health.
2. The State shall have the
duty to assist the family which is the custodian of morals and
traditional values recognized by the
community.”
59
Under article
23(4) of the International Covenant on Civil and Political Rights,
1966 (ICCPR),
60
States Parties are required to “take appropriate steps to ensure
equality of rights and responsibilities of spouses as to marriage,
during marriage and at its dissolution.” Article 23 of the ICCPR
provides that:
“
1. The family is the natural
and fundamental group unit of society and is entitled to protection
by society and the State.
2. The right of men and women
of marriageable age to marry and to found a family shall be
recognized.
3. No marriage shall be entered
into without the free and full consent of the intending spouses.
4. States Parties to the
present Covenant shall take appropriate steps to ensure equality of
rights and responsibilities of spouses
as to marriage, during
marriage and at its dissolution. In the case of dissolution,
provision shall be made for the necessary
protection of any
children.”
So too does
article 16 of the Universal Declaration of Human Rights, 1948
61
provide that:
“
(1) Men and women of full
age, without any limitation due to race, nationality or religion,
have the right to marry and to found
a family. They are entitled to
equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered
into only with the free and full consent of the intending spouses.
(3) The family is the natural
and fundamental group unit of society and is entitled to protection
by society and the State.”
These regional
and international instruments underscore the importance of marriage
as an institution and the right freely to marry.
They underscore
the duty of states like ours, which are signatories to these
instruments, to “take appropriate steps to ensure
equality of
rights and responsibilities of spouses as to marriage, during
marriage
and at its dissolution
.”
62
Therefore, both the Constitution and international instruments
impose an obligation on our country to protect the institution
of
marriage.
It seems to me
to follow from this recognition of the institution of marriage that
the law may, in appropriate circumstances,
distinguish between
married people and unmarried people. This much was recognised by
this Court in
Fraser v Children’s Court, Pretoria North, and
Others
,
63
where the Court observed:
“
In the context of certain
laws there would often be some historical and logical justification
for discriminating between married
and unmarried persons and the
protection of the institution of marriage is a legitimate area for
the law to concern itself with.”
64
Once it is
accepted that marriage is a constitutionally recognised institution
in our constitutional democracy, it follows that
the law may
legitimately afford protection to marriage. And in appropriate
circumstances the law may afford protection to married
people which
it does not accord to unmarried people. This seems to me to be the
logical consequence of the recognition of the
institution of
marriage. But there are other considerations that are relevant to
the determination of the fairness or otherwise
of the
discrimination involved in this case.
One of the
factors that is relevant to the determination of unfairness is the
purpose sought to be achieved by the impugned provisions.
The
purpose of the provisions of the Act is manifestly not directed at
impairing the dignity of the survivors of permanent life
partnerships. It is primarily directed at ensuring that surviving
spouses who are in need of maintenance and who are unable
to
support themselves, do get maintenance. One of the invariable
consequences of marriage is a reciprocal duty of support.
During
the subsistence of the marriage, the deceased spouse is under a
duty to support and maintain the surviving spouse. What
the
provisions of the Act merely do is to ensure that this duty
continues after the death of one of the spouses. It does this
by
transferring this duty to the estate of a deceased spouse.
It is not
without significance that indigenous law, which is part of our law,
also protects widows. Under indigenous law, the
duty to maintain
and support the widow survives the death of the husband. Thus upon
the death of a husband, the duty to maintain
and support the widow
falls upon
indlalifa
. This duty remains with
indlalifa
regardless of whether the deceased husband left enough assets from
which to maintain and support the widow. Recently, I had
occasion
to observe that:
“
The perpetuation and
preservation of the family unit and succession to the position and
status of the deceased therefore lie at
the heart of succession in
indigenous law. Like his predecessor,
indlalifa
becomes the
nominal owner of the family property, and is required to administer
it on behalf of and for the benefit of the family.
Indlalifa
acquires the duty to maintain and support the widow and minor
children. In dealing with family property,
indlalifa
has to
consult the widow who had the right to restrain him from
dissipating family assets. When there are insufficient assets
to
maintain the family,
indlalifa
had to use his own resources
to provide maintenance.”
65
(footnotes omitted)
It is
therefore plain that the impact of the provisions of the Act on
surviving spouses is to protect their right to receive maintenance
and support from the deceased spouse by transferring the duty to
support and maintain onto the estate of a deceased spouse.
It is
true that surviving partners of permanent life partnerships are not
afforded this protection. But, although this may constitute
a
disadvantage, it does not take away the right of a surviving
partner of a permanent life partnership from receiving a sum of
money from the estate of a deceased partner. Indeed, the
provisions of the Act do not prevent partners in a permanent life

partnership from leaving sums of money to each other in their
respective wills, which can be used for maintenance. We know for
example that the deceased in this case left Mrs Robinson a sum of
money in his will.
There is a
further consideration that is equally relevant. The law places no
legal impediment to heterosexual couples involved
in permanent life
partnerships from getting married. All that the law does is to put
in place a legal regime that regulates
the rights and obligations
of those heterosexual couples who have chosen marriage as their
preferred institution to govern their
intimate relationship. Their
entitlement to protection under the Act, therefore, depends on
their decision whether to marry
or not. The decision to enter into
a marriage relationship and to sustain such a relationship
signifies a willingness to accept
the moral and legal obligations,
in particular, the reciprocal duty of support placed upon spouses
and other invariable consequences
of a marriage relationship. This
would include the acceptance that the duty to support survives the
death of one of the spouses.
The Act does
not say who may enter into a marriage relationship. The Act simply
attaches certain legal consequences to people
who choose marriage
as their contract. There is a choice at the entry level. The law
expects those heterosexual couples who
desire the consequences
ascribed to this type of relationship to signify their acceptance
of those consequences by entering into
a marriage relationship.
Those who do not wish such consequences to flow from their
relationship remain free to enter into some
other form of
relationship and decide what consequences should flow from their
relationships.
The other
consideration is that marriage is a matter of choice. Marriage is
a manifestation of that choice and more importantly,
the acceptance
of the consequences of a marriage. It is more than a piece of
paper. As this Court observed in the
Dawood
case:
“
The celebration of a
marriage gives rise to moral and legal obligations, particularly the
reciprocal duty of support placed upon
spouses and their joint
responsibility for supporting and raising children born of the
marriage. These legal obligations perform
an important social
function. This importance is symbolically acknowledged in part by
the fact that marriage is celebrated generally
in a public ceremony,
often before family and close friends.”
66
People
involved in a relationship may choose not to marry for a whole
variety of reasons, including the fact that they do not
wish the
legal consequences of a marriage to follow from their relationship.
It is also true that they may not marry because
one of the parties
does not want to get married. Should the law then step in and
impose the legal consequences of marriage in
these circumstances?
To do so in my view would undermine the right freely to marry and
the nature of the agreement inherent
in a marriage. Indeed it
would amount to the imposition of the will of one party upon the
other. This is equally unacceptable.
Another
consideration that is relevant is the difficulty of establishing
the existence of a permanent life partnership. The point
at which
such partnerships come into existence is not determinable in
advance. In addition, the consequences of such partnerships
are
determined by agreement between the parties. Unless these have
been expressly agreed upon, they have to be inferred from
the
conduct of the parties. What happens at the dissolution of such
partnerships is far from clear. All of this points to the
need to
regulate permanent life partnerships. This does not mean that a
law designed to regulate marriages is unconstitutional
simply
because it does not regulate permanent life partnerships.
The provisions
of the Act may have denied the surviving partners of permanent life
partnerships the protection it affords to surviving
spouses, but it
cannot be said that it fundamentally impairs their rights of
dignity or sense of equal worth. The impact of
the discrimination
upon the surviving partners is, therefore, in all the circumstances
not unfair. It follows that the provisions
of the Act are not
inconsistent with sections 9 and 10 of the Constitution. In the
event, the order of invalidity made by the
High Court cannot be
confirmed.
For these
reasons I concur in the order proposed in the judgment of Skweyiya
J.
Chaskalson CJ,
Langa DCJ, Moseneke J, Van der Westhuizen J and Yacoob J concur in
the judgment of Ngcobo J.
MOKGORO AND O’REGAN
JJ:
We have had
the opportunity of reading the judgments in this matter prepared by
Skweyiya J and Sachs J. We are unable to agree
with the order
proposed by Skweyiya J. We agree with the conclusion reached by
Sachs J but for different reasons which we set
out in this
judgment.
The crisp
constitutional issue we have to decide is whether section 2(1) of
the Maintenance of Surviving Spouses Act, 27 of 1990
(the Act) read
with the definition of “survivor” in section 1 of that Act
constitutes unfair discrimination and is inconsistent
with the
Constitution as found by the Cape High Court (the High Court).
67
Section 2(1) provides that:
“
If a
marriage is dissolved by death after the commencement of this Act
the survivor shall have a claim against the estate of the
deceased
spouse for the provision of his reasonable maintenance needs until
his death or remarriage in so far as he is not able
to provide
therefor from his own means and earnings.”
The word “survivor”
is defined in section 1 of the Act as “the surviving spouse in a
marriage dissolved by death”. The
High Court found that this
narrow definition of “survivor” rendered the provision
discriminatory to the extent that it did
not afford a maintenance
claim to the surviving partner of a permanent life partnership. The
High Court accordingly made an order
reading in the following words
to the definition of survivor in section 1 – “and includes the
surviving partner of a life partnership”
as well as two further
orders reading in definitions of “spouse” and “marriage”.
68
We must decide whether to confirm that order.
The facts of
the case have been set out in the judgments of both Skweyiya J and
Sachs J. To recap in brief, Mrs Robinson and
Mr Shandling (the
deceased), who had both been previously married, formed a
relationship in which they lived together from 1985
until his death
in November 2001. The relationship thus lasted sixteen years.
They did not marry although there was no legal
impediment to
marriage. For the last twelve years of Mr Shandling’s life, they
lived in a flat owned by a Shandling family
trust. Their
relationship was monogamous and Mrs Robinson characterised the
relationship as a “permanent life or domestic
partnership”.
The applicant in this Court, Mr Volks, the executor of Mr
Shandling’s deceased estate (the executor) did not
dispute the
characterisation of the relationship as a “permanent life
partnership”.
In his will,
Mr Shandling referred to Mrs Robinson as his “friend”. He also
mentioned his former wife whom he referred to
as “my wife Edith
Rose”. He bequeathed certain of his assets, totalling
approximately one third of his estate, to Mrs Robinson.
The
residue of his estate was left to his three children in different
proportions. In addition to the bequests made in her
favour, Mrs
Robinson applied to the executor for her to be treated as a
surviving spouse for the purposes of section 2(1) of
the Act, which
would entitle her to maintenance. That application was refused by
the executor on the grounds that she did not
fall within the terms
of section 2(1) as she had not been married to Mr Shandling.
Mr Shandling
was a senior partner in a firm of attorneys in Cape Town while Mrs
Robinson worked intermittently as a freelance
journalist and
artist. Mrs Robinson averred that Mr Shandling supported her
financially during the subsistence of their relationship
and paid
all household expenses. Mrs Robinson was also added as a dependant
to Mr Shandling’s medical aid from 2000.
Mrs Robinson
states that Mr Shandling had been diagnosed as suffering from
bi-polar disorder before their relationship commenced
and that she
nursed him through the mood swings that are characteristic of this
disorder. She also nursed him in his final illness.
It is quite
clear from the evidence given by Mrs Robinson, and not disputed by
the executor, that Mr Shandling and Mrs Robinson
lived together for
sixteen years, supporting one another both financially and
emotionally and that both considered the relationship
to be a
permanent one. The High Court found on the facts that Mr Shandling
and Mrs Robinson had entered into a permanent and
intimate life
partnership.
In deciding
whether this finding is correct, we consider the following factors
to be determinative in this case: the length of
the period of
cohabitation which was sixteen years, the fact that Mr Shandling
paid Mrs Robinson an allowance to cover household
expenses and was
generally responsible for the payment of all the costs of running
the household, the fact that Mr Shandling
had declared Mrs Robinson
to be his dependant for the purposes of medical aid, the undisputed
close and intimate relationship
between them, and the fact that Mrs
Robinson nursed Mr Shandling through bouts of ill-health. In our
view, these facts make
it plain that both Mr Shandling and Mrs
Robinson considered themselves to constitute a permanent life
partnership in which they
undertook duties of mutual support and
care for one another. It is also clear, however, that they chose
not to marry. We must
assume that it was Mr Shandling who chose
not to marry as Mrs Robinson says that she was at all times willing
to be married.
We cannot ascertain Mr Shandling’s reasons for
not marrying from the affidavits before us. In our view, however,
the fact
that they did not marry does not mean that they had not
established a permanent life partnership.
Section 9(3)
of our Constitution prohibits discrimination on the grounds of
marital status. It provides:
“
The state may not unfairly
discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex,
pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
culture, language and
birth.”
The
institution of marriage is an important social institution which
has extensive legal consequences under the two legal regimes
which
regulate marriage in South Africa, the common law and African
customary law. The social importance of marriage has been
recognised by this Court in several cases. In
Dawood and
Another v Minister of Home Affairs and Others; Shalabi and Another
v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
,
69
for example, this Court held:
“
The institutions of marriage
and the family are important social institutions that provide for
the security, support and companionship
of members of our society
and bear an important role in the rearing of children. The
celebration of a marriage gives rise to moral
and legal obligations,
particularly the reciprocal duty of support placed upon spouses and
their joint responsibility for supporting
and raising children born
of the marriage. These legal obligations perform an important
social function. This importance is symbolically
acknowledged in
part by the fact that marriage is celebrated generally in a public
ceremony, often before family and close friends.”
70
The celebration of
a marriage thus confers extensive legal duties and rights upon the
parties to the marriage as a matter of law.
As a matter of social
relations, it often results in the founding of a family which
provides essential human companionship, mutual
support and security
to the members of that family. However, not every family is founded
on a marriage recognised as such in law.
Yet members of such
families often play the same roles as in families which are founded
on marriage and provide companionship,
support and security to one
another.
The law has
tended to privilege those families which are founded on marriages
recognised by the common law. Historically, marriages
solemnised
according to the principles of African customary law were not
afforded recognition equal to the recognition afforded
to common
law marriages,
71
though this has begun to change.
72
Similarly, marriages solemnised in accordance with the principles
of Islam or Hinduism were also not recognised as lawful marriages
73
though this too is now altering.
74
The prohibition of discrimination on the ground of marital status
was adopted in the light of our history in which only certain
marriages were recognised as deserving of legal regulation and
protection. It is thus a constitutional prescript that families
that are established outside of civilly recognised marriages should
not be subjected to unfair discrimination.
Where
relationships which are socially and functionally similar to
marriage are not regulated in the same way as marriage,
discrimination
on the grounds of marital status will arise. In
this case, we have concluded that the cohabitation relationship of
Mrs Robinson
and Mr Shandling was a relationship that constituted a
permanent life partnership in which the parties had undertaken
mutually
to support one another, both financially and otherwise.
We concluded, therefore, that their relationship was socially and
functionally
similar to marriage. To the extent that the law
regulates its consequences differently from that of marriage, the
law will be
prima facie discriminatory. The question that then
arises is whether that discrimination is unfair. In each case
where it is
shown that a relationship that is socially and
functionally similar to marriage is treated differently from
marriage, a careful
contextual analysis will be necessary to
determine whether the discrimination is indeed unfair.
It will be
helpful to start by considering the legal rules governing marriage.
Before we do so, however, it is important to note
that the rules
governing marriage both under common law and under African
customary law have been the subject of intense debate
in the last
few decades. The focus of that debate has been a realisation that
many of the rules of marriage in both systems
were discriminatory
on the grounds of gender and sex. Some of the rules were expressly
and obviously discriminatory, such as
the rule of common law which
provided that a woman married in community of property had limited
contractual capacity and that
her husband, the bearer of the
marital power, was entitled to manage their common estate on his
own without referring to her
at all.
75
Or the rule of customary law which provided that women may
ordinarily not inherit property.
76
Other rules
regulating marriage were discriminatory against women, not
expressly, but in effect. In particular these rules often
failed
to acknowledge the division of labour within the household, in
terms of which women bore primary and often sole responsibility
for
the maintenance of the household and caring for children and
elderly members of the family. The responsibilities so often
borne
by women across all South African communities, whether wealthy or
poor, and regardless of colour, meant that women were
less likely
to be able to participate in the labour market as successfully as
men. (Indeed practices in the labour market as
well were often
discriminatory, further hampering women’s ability to
participate.) The effect of the unequal division of labour
in the
household, and discriminatory practices in the labour market, meant
that at the termination of a marriage, whether by
death or divorce,
women were often more materially vulnerable than men. This was
caused by the fact that during the marriage
women were often less
able than men to accumulate property, and were also less able to
compete in the labour market.
The
Legislature has sought to remedy this inequality over the last
twenty years with a range of legislative enactments governing
the
regulation of matrimonial property both during the subsistence of
the marriage and upon its termination,
77
as well as provisions extending the duty of support that arises on
marriage to after the death of one of the spouses (the provision
in
question in this case),
78
and seeking to improve the procedures whereby the duty of support
may be enforced.
79
This brief account of recent developments in the law of marriage
makes it plain that marriage itself is an institution which
is
legally evolving. That evolution reflects and responds to changes
in the broader community. The discussion of the rights
of marriage
that follows is based largely, but not exclusively, on the current
common law rules regulating marriage.
Marriage, as
presently constructed in common law,
80
constitutes a contract between a man and a woman in which the
parties undertake to live together,
81
and to support one another.
82
Marriage is voluntarily undertaken by the parties, but it must be
undertaken in a public and formal way and once concluded it
must be
registered. Formalities for the celebration of a marriage are set
out in the Marriage Act.
83
A marriage must be conducted by a marriage officer,
84
to whom objections may be directed. If objections to the marriage
are lodged, the marriage officer must satisfy herself or himself
that there are no legal obstacles to the marriage.
85
Those wishing to get married must produce copies of their identity
documents, or alternatively make affidavits in the prescribed
form.
86
Marriages must take place in a church or other religious building,
or in a public office or home, and the doors must be open.
87
Both parties must be present
88
as well as at least two competent witnesses.
89
A particular formula for the ceremony is provided in the Marriage
Act,
90
but other formulae, such as religious rites, may be approved by the
Minister.
91
Once the marriage has been solemnised, both spouses, at least two
competent witnesses, and the marriage officer must sign the
marriage register.
92
A copy of the register must then be transmitted to the Department
of Home Affairs to be officially recorded.
93
These formalities make certain that it is known to the broader
community precisely who gets married and when they get married.

Certainty is important for the broader community in the light of
the wide range of legal implications that marriage creates,
as we
shall now describe.
One of the
most important invariable consequences of marriage is the
reciprocal duty of support. It is an integral part of the
marriage
contract and has immense value not only to the partners themselves
but to their families and also to the broader community.
The duty
of support gives rise to the special rule that spouses, even those
married out of community of property, can bind one
another to third
parties in relation to the provision of household necessaries which
include food, clothing, medical and dental
services.
94
The law sees the spouses as life partners and jointly and
severally responsible for the maintenance of their common home.

This obligation may not be excluded by antenuptial contract.
Another
invariable legal consequence of the marriage is the right of both
parties to occupy the joint matrimonial home. This
obligation is
clearly based on the premise that spouses will live together. The
party who owns the home may not exclude or evict
the other party
from the home. Limited exceptions to this rule have been created
under the Domestic Violence Act.
95
The way in
which the marriage affects the property regime of the parties to
the marriage is variable at common law. The ordinary
common law
regime is one of community of property including profit and loss in
terms of which the parties to a marriage share
one joint estate
which they manage jointly. Historically, of course, our common law
provided that the power to manage the estate
(“the marital
power”) vested in the husband. This rule was altered by
statutory intervention in 1984.
96
Major transactions affecting the joint estate must now be carried
out with the concurrence of both parties.
97
Marriage also
produces certain invariable consequences in relation to children.
Children born during a marriage are presumed
to be children of the
father. Both parents have an ineluctable duty to support their
children (and children have a reciprocal
duty to support their
parents). The duty to support children arises whether the children
are born of parents who are married
or not.
Because of the
social importance of marriage in our community, the law also
attaches a range of other consequences to marriage
– for example,
insolvency law provides that where one spouse is sequestrated, the
estate of the other spouse also vests in
the Master in certain
circumstances,
98
the law of evidence creates certain rules relating to evidence by
spouses against or for one another,
99
and the law of delict recognises damages claims based on the duty
of support.
100
The rules that govern marriage have developed over a long period
of time. More recently, as pointed out in the judgment of
Sachs J,
Acts of Parliament which attach benefits to marriage, also confer
them upon cohabitants who are not married, variously
referred to in
legislation as “life partners”, “partners” and
“cohabitants”.
101
From the
above, it is clear that marriage is an institution of great legal
significance. This significance arises both from the
important
social role that marriage plays in our society and from its public
and formal character which make it a reliable criterion
for the
conferral of obligations and rights. We are unable to agree with
Skweyiya J to the extent that he suggests that in determining
whether discrimination on the grounds of marital status is unfair
or not, one can take the view that it is not unfair to discriminate
between relationships to which the law attaches the obligations of
support and cohabitation and those relationships to which
the law
does not attach such consequences. In our view, this approach
defeats the important constitutional purpose played by
the
prohibition on discrimination on the grounds of marital status.
For if it does not constitute unfair discrimination to regulate
marriage differently from other relationships in which the same
legal obligations are not imposed upon the partners to that

relationship by the law, marriage will inevitably remain
privileged. We do not consider this would serve the constitutional

purpose of section 9(3), and its prohibition of unfair
discrimination on the grounds of marital status.
It has become
apparent that more and more people in South Africa live together
without being married.
102
In the 2001 Census, 2.3 million people described themselves as
“living together like married partners” although they were
not
married. This constitutes approximately 8% of the adult
population. However, although cohabitating partners have received
some piecemeal attention by Parliament over the last ten years,
103
no comprehensive legislative regulation of the consequences of
cohabitation has yet taken place. The South African Law Reform
Commission, however, has been engaged in researching the matter and
has prepared a comprehensive discussion paper on it.
104
Of course, the
circumstances of cohabitants can vary significantly. Some may be
living together with no intention of permanence
at all, others may
be living together because there is a legal or religious bar to
their marriage, others may be living together
on the firm and joint
understanding that they do not wish their relationship to attract
legal consequences, and still others
may be living together with
the firm and shared intention of being permanent life partners.
Moreover, one cohabiting relationship
may change its joint
character and purpose so that partners who may originally not
intend to be living together as permanent
life partners may over
time alter that intention and intend to live together as permanent
life partners.
Often
cohabitation will be a long-term arrangement between two people.
Because such relationships are similar to marriage, and
because
they will be based on many of the same social practices that
underpin marriage, many of the gender inequalities that
are
attendant upon marriage, and described above,
105
will also be attendant upon these relationships. It is quite
likely that after a long period of cohabitation, in which the

parties have lived together, and even raised children jointly, the
person in the relationship, often, but not necessarily the
woman,
who has been responsible for the maintenance of the household and
caring for children will be more vulnerable in relation
to material
and financial matters than the other partner. The termination of
the cohabitation relationship whether by death
or separation will
often prejudice that person in the absence of any equitable
regulation of the property affairs of the partners
upon
termination.
Some
cohabitation relationships, such as that between Mrs Robinson and
Mr Shandling, play a role very similar to marriage in our
society.
However, because they are not formally celebrated in a manner that
is capable of easy proof or ascertainment, attaching
legal
consequences automatically to such relationships may be less
practicable. To resolve this problem some societies have
provided
for the registration of cohabitation relationships in a manner
similar to marriage.
106
There are thus
differences between marriage and cohabitation even where
cohabitation plays a similar social function to marriage.
These
differences mean that the mere fact that the law regulates marriage
relationships differently from cohabitation relationships
does not
mean that the law, to the extent that it discriminates on the
grounds of marital status, will constitute
unfair
discrimination. To determine whether the law does constitute
unfair discrimination requires us to follow the approach to
unfairness
established by this Court in a series of cases.
107
Three things need to be considered: (a) the position of
complainants in society and whether they have previously suffered

from patterns of disadvantage; (b) the nature of the provision and
the purpose sought to be achieved by it; and (c) the extent
to
which the discrimination has affected the rights or interests of
the complainants and whether it has led to an impairment
of their
fundamental human dignity or has caused them some other harm of a
comparably serious nature.
Although
discrimination against cohabiting partners has not been equal to
the discrimination relating to race and gender, cohabiting
partners
have been excluded from legal recognition as we have described
above. Moreover, cohabiting partners have been and still
are the
subject of stigma and disapproval in our community, though this
stigma is on the wane in some sectors of our society.
A further
important factor in this case is that the group of cohabiting
partners under consideration are those who, upon the
death of their
partner, are unable to provide for their own reasonable maintenance
needs from their own resources. We are, by
definition therefore,
concerned with survivors of a cohabitation relationship in
financial need. We conclude for these reasons
that the cohabiting
partners under consideration in this case are a vulnerable group.
We turn now to consider the circumstances
of cohabiting partners
under our law at present.
At present our
law makes no express provision for the regulation of the affairs of
cohabiting partners upon termination of their
relationship. In
several other jurisdictions, the law of implied or constructive
trusts has been used to re-allocate property
rights between
partners at the termination of a cohabitation relationship to
achieve equity.
108
This remedy is not available in our law, given the different legal
basis of the law of trusts in South African law.
109
However, the common law rules governing universal partnership may
in some circumstances assist the partners at termination.
A
universal partnership is a contract in which the parties agree to
put in common all their property, both that which they presently
own and that which they are to acquire in the future.
110
In
Ally v Dinath
,
111
the court held that a universal partnership like other contracts
could be tacitly concluded. Establishing that a contract has
been
concluded tacitly is of course not straightforward.
112
Another legal
remedy that may be available to assist a cohabiting partner on the
termination of the relationship arises from the
law governing
unjustified enrichment.
113
One partner may be able to show that the other partner has been
enriched during the existence of the relationship by tangible
improvements made to the property of the one partner by the other.
114
It might even be that the enrichment action could be developed to
accommodate other forms of contributions made by partners
to one
another during the subsistence of their relationship. However, the
law has not yet developed in this direction. The
scope of the law
of unjustified enrichment need not be further considered.
Accordingly,
at present, there are only a few common law rules which may have
the potential to regulate the rights of parties
upon the
termination of a cohabitation relationship, no matter how
longstanding that relationship. These remedies do not as
presently
recognised provide a comprehensive, certain and coherent set of
principles to protect cohabitants. Moreover, there
are no express
statutory provisions at all to regulate the affairs of cohabitants
upon termination of their relationship by the
death of one party.
Accordingly, at termination by the death of one of the parties, the
surviving partner is left without effective
legal recourse, unless
she or he can formulate a claim based on the principles of the
common law described above. This situation
arises, despite the
fact that it is clear that the relationship of cohabitation was one
in which the parties had undertaken mutual
duties of support and
one in which patterns of vulnerability and dependence had been
established, such that the death of one
party may put the other in
great difficulty.
The
determination whether the discrimination caused by section 2(1)
affects cohabiting partners unfairly needs to be understood
in the
context of the fact that there are no comprehensive, certain or
clear legal remedies that can ameliorate the circumstances
of the
surviving cohabitant upon termination of the relationship by the
death of one of the cohabitants. The absence of any
other legal
remedy coupled with the discriminatory impact of section 2(1) will
mean that often surviving cohabiting partners
will be left
vulnerable and unprotected upon the termination of their
cohabitation arrangements by the death of their partner,
even where
their relationship had subsisted for a long period of time.
Upon
termination of a marriage by death, on the other hand, there are a
range of rules which govern the rights of the parties.
When one
spouse dies intestate, the other spouse is entitled to inherit the
entire estate if the deceased spouse is not survived
by any
descendants.
115
If the deceased spouse is survived by a descendant, then the
spouse is entitled to inherit either a child’s portion of that
spouse’s estate
116
or a minimum amount established by the Minister for Justice and
Constitutional Development from time to time.
117
The amount is currently set at R125 000.
118
Of course, the provisions of the Intestate Succession Act apply
only if the deceased spouse does not make a will.
In addition to
the provisions regulating succession, section 2(1) of the Act
provides that a spouse in financial need may claim
maintenance from
the estate of his or her deceased spouse until his or her death or
remarriage. As both Sachs J and Skweyiya
J note in their
judgments, this provision was enacted in 1990 to amend the
situation then prevailing under the common law. At
that time, the
common law held that the duty of support between spouses did not
survive the death of one spouse. Accordingly,
a spouse had no
claim against the estate of his or her deceased spouse, even when
in dire financial need, and if the estate would
have been able to
provide maintenance.
119
There is a
significant difference, therefore, between the way in which the law
regulates the rights of spouses who survive a marriage,
and the
manner in which it regulates the rights of partners who survive a
cohabitation relationship. There can be no doubt that
there is a
range of ways in which the rights of partners surviving
cohabitation relationships could be regulated. There are
many
different examples to be found in other legal systems.
120
In particular, the Legislature may be minded to regulate different
forms of cohabitation differently. For example, it may conclude
that registered cohabitation relationships will be more
comprehensively regulated than other forms of cohabitation. The
various
possibilities are canvassed extensively in the Law Reform
Commission report referred to earlier.
121
It is unnecessary and premature in our view to consider the full
range of forms of regulation that may be considered by the
Legislature and to consider their constitutionality for as yet
there is no statutory regulation.
From the
foregoing it becomes plain that cohabiting partners are a
vulnerable group, and that in the absence of any other forms
of
legal regulation, the fact that they are excluded from the
provisions of section 2(1) can have a grave impact on the interests
of cohabiting partners. That impact will be particularly grave
where the partnership is a permanent life partnership in which
partners have undertaken reciprocal duties of support, where the
surviving partner is in need, and there has been no equitable
distribution to the surviving partner from the estate of the
deceased partner. It is our conclusion that, in the absence of
any
regulation in such circumstances, the effect of limiting the scope
of section 2(1) to married spouses only will constitute
unfair
discrimination within the meaning of section 9(3) of the
Constitution.
Were there
some regulation to provide equitable protection to cohabitants who
have been in relationships which can be said to
perform a similar
social function to marriage, the provisions of section 2(1) may not
have constituted unfair discrimination.
Given however that there
is no regulation to ensure some equitable protection for
cohabitants, particularly those who have been
in long-term
relationships where patterns of dependence have been established,
the failure of section 2(1) to apply to such relationships
constitutes, in our view, unfair discrimination.
It should be
emphasised that this conclusion does not mean that the Legislature
is required to regulate cohabitation relationships
in the same way
that it regulates marriage. In particular, the Legislature need
not extend the provisions of section 2(1) to
all cohabitation
relationships. As indicated earlier, marriage is a particular form
of relationship, concluded formally and
publicly with specified and
clear consequences. Many people who choose to cohabit may do so
specifically to avoid those consequences.
In our view, the
Legislature is entitled to take this into account when it regulates
cohabitation relationships. However, cohabitation
relationships
that endure for a long time can produce patterns of dependence and
vulnerability which in the light of the substantial
and increasing
number of people in cohabitation relationships cannot be ignored by
the Legislature without offending the constitutional
prohibition on
unfair discrimination on the grounds of marital status.
The unfairness
of the discrimination in this case lies not primarily in the fact
that cohabiting partners are not afforded equivalent
rights to
marriage as stipulated in section 2(1) of the Act, but in the fact
that neither section 2(1) nor any other legal rule
regulates the
rights of surviving partners to cohabitation relationships which
were socially and functionally similar to marriage,
when those
relationships are terminated by death and where that surviving
partner is in financial need. In our view, given that
section 2(1)
of the Act and other legal provisions extensively regulate the
rights of spouses in the event of the termination
of a marriage by
death, but there are no statutory provisions at all regulating the
rights of cohabitants upon the termination
of their relationships
by death, the law discriminates against surviving partners of
cohabitation relationships who are in financial
need.
We have
concluded that the discrimination is unfair. The next question
that arises is whether that unfair discrimination can
be said to be
reasonable and justifiable within the contemplation of section 36
of the Constitution.
122
The purpose of the legislation is to alter the common law rules
governing marriage to protect the surviving spouse from penury
upon
the death of the other spouse. In our view, this is an important
purpose. However, that purpose can be achieved without
excluding
surviving partners of cohabitation relationships in which duties of
support had been mutually undertaken, whether tacitly
or expressly,
and where those surviving partners are in financial need, from
similar protection. It is not clear why marriage
only need be
protected. The need to provide protection to such surviving
partners is all the more acute in the light of the
prevailing
common law principle that provides that such partners would not be
able to enter into legally enforceable contractual
obligations to
support one another after the termination of their partnership by
the death of one of them. The law prohibits
contracts between
individuals which seek to regulate their affairs or relationships
posthumously.
123
To the extent that the purpose of providing legal protection to a
surviving spouse but not to a surviving cohabitant might be
to
preserve the religious attributes of marriage, this cannot be an
acceptable purpose in terms of our Constitution. While marriage
plays an important role in our society, and most religions cherish
it, the Constitution does not permit rights to be limited
solely to
advance a particular religious perspective. We conclude therefore
that the unfair discrimination is not justifiable
within the terms
of section 36.
Remedy
It is
necessary to consider the appropriate remedy. Section 172(1)(a) of
the Constitution requires a court when deciding a constitutional
matter to declare any law or conduct that is inconsistent with the
Constitution to be invalid to the extent of its inconsistency.
124
Section 172(1)(b) also permits a court to make an order that is
just and equitable. The difficulty we face in this case is
that,
for the reasons given earlier in this judgment, the discrimination
we have found may be cured by the Legislature in a variety
of ways
and that those ways need not be identical to the manner in which
marriages are currently regulated. To cure the unfairness
of the
discrimination identified in this case the Legislature should make
provision to ensure that on the termination of a longstanding
cohabitation relationship by death, an equitable arrangement is
reached in relation to the financial position of the survivor
so
that the dependence or vulnerability of the survivor which has
arisen through the relationship of cohabitation is appropriately
redressed. This equitable arrangement could be achieved, either by
an equitable distribution of the property of the cohabitants,
125
or by rules relating to maintenance. The Legislature is in the
best position to determine the precise nature of that regulation.

We accordingly consider that the order of constitutional invalidity
should be suspended to give the Legislature an opportunity
to cure
the constitutional defect.
All this may
be so, yet section 172(1) nevertheless obliges us to capture the
scope of the unconstitutionality as precisely as
we can. It may be
that if the context were to change, what would constitute “unfair
discrimination” may also change. We
are, however,
constitutionally obliged to formulate an order of invalidity as
precisely as we can in the light of the circumstances
that
currently obtain. If the Legislature were not to take steps to
cure the defect within the time stipulated and also not
seek an
extension of the suspension of the order, the order of invalidity
would come into effect. It is important for this reason
too that
the scope of the unconstitutionality be as carefully drawn as
possible.
In the light
of the reasoning on the merits above, we consider that the
unconstitutionality in section 2(1) lies in the definition
given to
“spouse” in section 1 of the Act. In our view, were that
definition to be read to include “and includes the surviving
partner of a permanent heterosexual 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”, the unconstitutionality would be cured. It should be
emphasised that, were this order to come into operation, a partner
would only be able to claim maintenance in the circumstances
contemplated by section 2(1). The surviving partner would have
to
show that he or she was not able to provide for his or her
reasonable maintenance needs from his or her own means and
earnings.
It should be
noted that this definition limits the scope of the relief to a
narrow class of cohabitation relationships only –
those that are
permanent heterosexual life partnerships in which the parties have
undertaken reciprocal duties of support.
126
It was argued by the respondents and the amicus in this Court that
basing the relief only on parties who have expressly or tacitly
undertaken duties of support, which was also the approach adopted
by this Court in
Satchwell
’s case,
127
was not correct because family law should not be governed by
contractual principles and the common law should instead be
developed
to give rise to an automatic legal duty of support
between the parties to permanent life partnerships. The difficulty
with this
submission is that the development of the common law as
proposed by the amicus was not relief sought in this litigation.
The
relief sought in this case was a declaration of constitutional
invalidity in respect of section 2(1) of the Act. Developing the
common law as proposed by the amicus is quite different relief
which it would be inappropriate to grant on appeal, in
circumstances
where it is has not been considered by any other
court. Accordingly, the submission made by the amicus must fail.
In our view,
the proposed order identifies the relationships which perform most
closely a similar social function to marriage
and the relief should
not extend beyond them, though of course it is open to the
Legislature to regulate other cohabitation relationships.

Moreover, we limit the relief to circumstances in which a partner
in such a relationship has not been afforded any equitable
distribution from his or her partner’s estate. We do this
because we consider that even where a life partnership performs
a
similar social function to marriage, it is not constitutionally
necessary for the Legislature to regulate that partnership
in the
same way as it regulates a marriage. The key issue for the
Constitution is to ensure that some provision is made equitably
to
regulate the circumstances of a cohabiting partner upon the death
of the other partner. In the circumstances of this matter,
it is
prudent to leave the Legislature as free as constitutionally
possible to determine the appropriate form of regulation.
In this case,
as it happens, Mrs Robinson was provided for in Mr Shandling’s
will. That will recognised her contribution to
the partnership and
her potential financial vulnerability upon the death of Mr
Shandling by leaving to her approximately one
third of his estate.
In our view, this constitutes an adequate equitable division of the
property of Mr Shandling, such as not
to entitle Mrs Robinson to
any further relief within the terms of the order we propose. In
these circumstances, we do not consider
it appropriate to make an
order for interim relief. In our view, this is an area which
should best be regulated by the Legislature
and it would be
difficult and perhaps inadvisable to seek to provide an interim
regime pending the Legislature’s intervention.
We would
therefore agree with Sachs J, though for different reasons, that
the applicants have established that section 2(1) of
the Act is
unfairly discriminatory in that neither it nor any other provision
of the law regulates the rights of surviving partners
of
cohabitation relationships. We would put the Legislature on terms
to resolve this. Given the complexity of the task, we
consider
that two years is an appropriate period to give the Legislature to
cure the defect in the current legislation.
Neither the
applicant nor the respondents sought costs against one another.
The respondents did seek costs against the Minister
for Justice and
Constitutional Development on an attorney and client basis in the
light of the fact that she abided the outcome
of the litigation in
the High Court and then sought to lodge evidence in this Court and
oppose the relief. Given that this judgment
is not supported by a
majority of the members of this Court who heard the matter, it is
not necessary for us to consider whether
it would be appropriate to
award costs on the basis sought by the respondents.
We have had an
opportunity, since writing this judgment, to read the judgment
prepared by Ngcobo J. We cannot agree with it.
In our view, the
approach he adopts privileges marriage relationships in a manner
that cannot be consistent with the express
constitutional
prohibition of unfair discrimination on the grounds of marital
status. For these reasons, we propose the following
order, which
confirms in substance the order of the High Court, but subjects the
order to a period of two years’ suspension.
The Order
1. It is declared
that the omission from the definition of “survivor” in section
1 of the Maintenance of Surviving Spouses
Act, 27 of 1990 of the
words “and includes the surviving partner of a permanent
heterosexual 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”
at the end of the existing definition is unconstitutional
and
invalid.
2. The definition
of “survivor” in section 1 of the Maintenance of Surviving
Spouses Act, 27 of 1990, is to be read as if
it included the
following words after the words “dissolved by death” –
“and includes
the surviving partner of a permanent heterosexual 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.”
3. The omission
from the definition in section 1 of the Maintenance of Surviving
Spouses Act, 27 of 1990 of the following, at
the end of the
existing definitions, is unconstitutional and invalid –
“Spouse” for
the purposes of this Act shall include a person in a permanent
heterosexual life partnership;
“Marriage” for
the purposes of this Act shall include a permanent heterosexual
life partnership.
4. Section 1 of
the Maintenance of Surviving Spouses Act, 27 of 1990 is to be read
as though it included the following at the
end of the existing
definition –
“Spouse” for
the purposes of this Act shall include a person in a permanent
heterosexual life partnership;
“Marriage” for
the purposes of this Act shall include a permanent heterosexual
life partnership.
5. The orders
contained in paragraphs 1, 2, 3 and 4 are suspended for a period of
2 years from the date of this order to enable
the Legislature to
take steps to cure the constitutional defects identified in this
judgment.
6. Any party may
approach this Court, on notice to all other parties, for an
extension of the period of suspension provided for
in paragraph 5
of this order before the period of suspension elapses.
7. Should the
Legislature choose not to enact legislation as contemplated in
paragraph 5, the order of invalidity that shall
come into operation
two years after the date of this order shall have no effect on the
validity of any acts performed in respect
of the administration of
a deceased estate that has finally been wound up by the date upon
which the order of invalidity comes
into effect.
SACHS J:
Introduction
This case
raises complex social and legal questions about the interaction
between freedom of choice and equality in intimate relationships.
The problem
does not lie in defining the technical legal question to be
answered: does the fact that the Constitution prohibits
unfair
discrimination on the ground of marital status, mean that the
exclusion of the survivor of a committed, permanent and
intimate
life partner from the benefits of the Maintenance of Surviving
Spouses Act
128
(the Act) amounts to unfair discrimination against her?
Similarly, it
is not difficult to illustrate the practical issues involved: to
take a not unusual situation, should a person who
has shared her
home and life with her deceased partner, borne and raised children
with him, cared for him in health and in sickness,
and dedicated
her life to support the family they created together, be treated as
a legal stranger to his estate, with no claim
for subsistence
because they were never married? Should marriage be the exclusive
touchstone of a survivor’s legal entitlement
as against the
rights of legatees and heirs?
The source of
the complexity appears to lie elsewhere. In my view this is one of
those cases in which however forceful the reasoned
text might be,
it is the largely unstated subtext which will be determinative of
the outcome. The formal legal issue before
us is embedded in an
elusive, evolving and resilient matrix made up of varied
historical, social, moral and cultural ingredients.
At times these
emerge and enter explicitly into the legal discourse. More often
they exercise a subterranean influence, all
the more powerful for
being submerged in deep and largely unarticulated philosophical
positions.
Thus the
judgment of Skweyiya J, which has majority support, holds that the
issue is whether it amounts to unfair discrimination
to impose a
duty upon the deceased estate to maintain a surviving spouse on the
one hand, and not, on the other to impose that
duty upon the
deceased estate where the deceased bore no such duty by operation
of law during his or her lifetime to maintain
the partner in a
heterosexual partnership. The answer, the judgment decides, is
that such discrimination is not unfair.
I find myself
in disagreement with the judgment both as to the approach utilised
and to the conclusion reached, and totally so.
This is not because
I would challenge the legal logic used, which appears to be
impeccable within the framework adopted. It
is because I would
locate the issue in a completely different legal landscape. I do
not accept that it is appropriate to examine
the entitlements of
the surviving cohabitant in the context of what the common law
would provide during the lifetime of the parties.
To do so is to
employ a process of definitional reasoning which presupposes and
eliminates the very issue which needs to be
determined, namely,
whether for the limited socially remedial purposes intended to be
served by the Act, unmarried survivors
could have a legally
cognisable interest which founds a constitutional right to equal
benefit of the law.
In my view,
the question of the fairness of excluding such survivors from such
benefits falls to be assessed not in the narrow
confines of the
rules established by matrimonial law, but rather within the broader
and more situation-sensitive framework of
the principles of family
law, principles that are evolving rapidly in our new constitutional
era. By its very nature, the quality
of fairness, like that of
mercy and justice, is not strained. The enquiry as to what is fair
in our new constitutional democracy
accordingly does not pass
easily through the eye of the needle of black-letter law. Judicial
dispassion does not exclude judicial
compassion; the question of
fairness must be rigorously dealt with, but in a people-centred and
not a rule-centred way.
The issues
raised are novel. A wide range of jurisprudential perspectives are
implicated. Because I differ fundamentally with
the majority with
regard to the point of departure and the context of the enquiry I
have found it necessary to set out my views
at some length. The
first part of this judgment seeks to delineate and establish the
jurisprudential setting in which I believe
the issues should be
located. The second part sets out my reasons for holding that the
Act does in fact discriminate unfairly
against survivors of
committed life partnerships.
PART ONE
ESTABLISHING THE
LEGAL LANDSCAPE
(i)
The philosophical context: freedom of choice and equality
Respect for
human autonomy undoubtedly implies that the law must honour the
choices that people make, including the decision whether
or not to
marry. A central argument advanced in the appellant’s written
submissions, and, I believe, the philosophical premise
underlying
the majority judgment (as well as the basis for the judgment of
Ngcobo J, which I have had the opportunity to read),
is as follows:
By opting not to marry, thereby not accepting the legal
responsibilities and entitlements that go with marriage,
a person
cannot complain if she is denied the legal benefits she would have
had if she had married. Having chosen cohabitation
rather than
marriage, she must bear the consequences. Just as the choice to
marry is one of life’s defining moments, so, it
is contended, the
choice not to marry must be a determinative feature of one’s
life. These are powerful considerations.
Sinclair
129
indicates her respect for such an argument, which implies that
freedom of choice demands that cohabitation be preserved as an
alternative to marriage and not simply become a different type of
marriage. She goes on, however, to negate this contention.
On the
premise that two people set up a home together, live in a stable,
permanent, affective relationship that emulates marriage,
and
intend to deal fairly with one another, the law’s objective, she
states, should be to achieve equity between the parties.
130
This, she adds, should be accomplished both during the currency of
the partnership and after the death of one of the partners.
She
cites Rhode who points out that a balance must be struck
“
between liberty and equality
in intimate associations, between flexibility and certainty in legal
rules, and between tolerance for
diversity and encouragement of
stability in family life . . . . The tradeoff between liberty and
equality becomes less stark if
liberty is defined not as freedom to
do what we want when we want, but rather as freedom to form
relationships of mutual trust
and commitment, relationships that
presuppose some obligations of honesty and fair dealing.
Flexibility and certainty are more
readily reconciled if we do not
demand a single framework for all intimate associations, but rather
search for legal guidelines
that will distinguish casual from
committed relationships. In the absence of explicit agreements,
criteria such as the duration
of the relationship, the degree of the
parties’ financial interdependence, and, most importantly, the
presence of children, could
help provide some consistency across
cases.”
131
In my view
this balanced, flexible and nuanced approach accords well with the
multi-faceted character of our new constitutional
order.
Respecting autonomy means giving legal credence not only to a
decision to marry but to choices that people make about
alternative
lifestyles. Such choices may be freely undertaken, either
expressly or tacitly. Alternatively, they might be imposed
by the
unwillingness of one of the parties to marry the other. Yet if the
resulting relationships involve clearly acknowledged
commitments to
provide mutual support and to promote respect for stable family
life, then the law should not be astute to penalise
or ignore them
because they are unconventional. It should certainly not refuse
them recognition because of any moral prejudice,
whether open or
unconscious, against them.
It is
instructive to look at the manner in which the Canadian Supreme
Court has grappled with the relevance of choice in relation
to
cohabitation. In
Miron
132
the majority
133
found that, while in theory the individual is free to choose to
marry or not to marry, in practice the reality may be otherwise.

It noted further that since the object of the legislation in
question was to sustain families when one of their members was
injured in an accident, this should be the focus of the issue,
rather than what the marital status of the claimant was.
134
The court stated that:
“
If the issue had been viewed
as a matter of defining who should receive benefits on a basis that
is relevant to the goal or functional
values underlying the
legislation, rather than marriage equivalence, alternatives
substantially less invasive of
Charter
rights might have been
found.”
135
Accordingly, the
exclusion of unmarried partners from an accident benefit which was
available to married partners, violated the
Charter. In the
result, the definition of ‘spouse’ had to be read so as to
include cohabiting partners. Writing as part
of the majority in
that case ĽHeureux-Dubé J challenged the assumption that
most unmarried persons living in a relationship
of some
interdependence and duration are indeed exercising a ‘free
choice’.
“
This silent and
oft-forgotten group constitutes couples in which one person wishes
to be in a relationship of publicly acknowledged
permanence and
interdependence and the other does not . . . . It is small
consolation, indeed, to be told that one has been denied
equal
protection under the
Charter
by virtue of the fact that one’s
partner had a choice.”
136
By way of
contrast, in the more recent case of
Walsh
137
the court decided
138
that merely choosing to cohabit was insufficiently indicative of an
intention by cohabitants to share and contribute to each
other’s
assets and liabilities,
139
and therefore the exclusion of cohabiting partners from sharing in
the division of matrimonial property by the Nova Scotia Matrimonial
Property Act did not violate the Charter.
The judgment
of Bastarache J emphasises how context-related the significance of
choice will be. Because of its relevance to the
matter before us I
quote extensively from it:
“
This Court has recognized
both the historical disadvantage suffered by unmarried cohabiting
couples as well as the recent social
acceptance of this family form.
As McLachlin J noted in
Miron . . .
‘
There is ample evidence that
unmarried partners have often suffered social disadvantage and
prejudice. Historically in our society,
the unmarried partner has
been regarded as less worthy than the married partner. The
disadvantages inflicted on the unmarried
partner have ranged from
social ostracism through denial of status and benefits. In recent
years, the disadvantage experienced
by persons living in
illegitimate relationships has greatly diminished. Those living
together out of wedlock no longer are made
to carry the scarlet
letter. Nevertheless, the historical disadvantage associated with
this group cannot be denied.’
Since
Miron, . . .
significant legislative change has taken place at both the
federal and provincial levels. Numerous statutes that confer
benefits
on married persons have been amended so as to include
within their ambit unmarried cohabitants. Nevertheless, social
prejudices
directed at unmarried partners may still linger, despite
these significant reforms. In light of those social prejudices,
this
Court recognized in
Miron,
that one’s ability to
access insurance benefits was not reducible to simply a matter of
choice. L‘Heureux-Dubé J.,
in her concurring judgment,
reasoned as follows, at para.102:
‘
To recapitulate, the
decision of whether or not to marry is most definitely capable of
being a very fundamental and personal choice.
The importance
actually ascribed to the decision to marry or, alternatively,
not
to marry, depends entirely on the individuals concerned. For a
significant number of persons in so-called “non-traditional”
relationships, however, I dare say that notions of “choice” may
be illusory. It is inappropriate, in my respectful view, to
condense the forces underlying the adoption of one type of family
unit over another into a simple dichotomy between “choice”
or
“no choice”. Family means different things to different people,
and the failure to adopt the traditional family form of
marriage may
stem from a multiplicity of reasons — all of them equally valid
and all of them equally worthy of concern, respect,
consideration,
and protection under the law.’ [Emphasis in original.]
Where the legislation has the
effect of dramatically altering the legal obligations of partners,
as between themselves, choice must
be paramount. The decision to
marry or not is intensely personal and engages a complex interplay
of social, political, religious
and financial considerations by the
individual. While it remains true that unmarried spouses have
suffered from historical disadvantage
and stereotyping, it
simultaneously cannot be ignored that many persons in circumstances
similar to those of the parties, that
is, opposite sex individuals
in conjugal relationships of some permanence, have chosen to avoid
the institution of marriage and
the legal consequences that flow
from it.
To ignore [the] differences
among cohabiting couples presumes a commonality of intention and
understanding that simply does not
exist. This effectively
nullifies the individual’s freedom to choose alternative family
forms and to have that choice respected
and legitimated by the
state. Examination of the context in which the discrimination claim
arises . . . involves a consideration
of the relationship between
the grounds and the claimant’s characteristics or circumstances.”
140
[Reference omitted.]
The point is
made even more explicitly in
Walsh
by Gonthier J, who draws
a sharp distinction between re-arrangement of property relations,
on the one hand, and providing spousal
support, on the other.
Referring to the Maintenance and Custody Act which provides for
maintenance, and is dependent on the
need of the applicants and
their capacity to provide for themselves and each other, he states
that:
“
It is true that in
M.v.H
.,
[1999] 2 S.C.R. 3
, at para. 177, I recognized that there is ‘a
growing political recognition that cohabiting opposite-sex couples
should be subject
to the spousal support regime that applies to
married couples because they have come to fill a similar social
role.’ However,
I want to underline the fundamental difference
between spousal support, based on the needs of the applicant, and
the division of
matrimonial assets. While spousal support is based
on need and dependency, the division of matrimonial assets
distributes assets
acquired during marriage without regard to need.
. . . .
The division of matrimonial
assets and spousal support have different objectives. One aims to
divide assets according to a property
regime chosen by the parties,
either directly by contract or indirectly by the fact of marriage,
while the other seeks to fulfil
a social objective: meeting the
needs of spouses and their children.”
141
It is relevant
that the distinction drawn by Gonthier J was not based on whether
payment of a benefit to an unmarried cohabitant
was to be made by
the state or to come out of the deceased’s estate, and thereby
possibly affect the entitlement of heirs.
It focused on the
special importance to be attributed to need and spousal support
after a life-long conjugal relationship with
the deceased has come
to an end. As a result, on his approach claims for spousal support
could legitimately compete with inheritance
rights. No general
marriage equivalence is required to establish the specific right to
spousal support. What matters is the
functional value of the
legislation based on acknowledgment of a similar social role to
that served by marriage.
The
jurisprudential importance of context in deciding whether a
distinction between married and unmarried persons can fairly be
made, has also been underlined by this Court. In
Fraser,
142
which dealt with a provision that excluded unmarried fathers from
the category of persons whose consent had to be sought for
adoption, Mohamed DP stated:
“
In the context of certain
laws there would often be some historical and logical justification
for discriminating between married
and unmarried persons and the
protection of the institution of marriage is a legitimate area for
the law to concern itself with.
But in the context of an
adoption statute where the real concern of the law is whether an
order for the adoption of the child is
justified, a right to veto
the adoption based on the marital status of the parent could lead to
very unfair anomalies.
. . . .
It is . . . evident that not
all unmarried fathers are indifferent to the welfare of their
children and that in modern society stable
relationships between
unmarried parents are no longer exceptional
.”
143
[My emphasis.]
By analogy, I believe that a
de-contextualised approach to the status of unmarried survivors of
intimate life partnerships inevitably
leads to very unfair
anomalies. The survivor of an empty shell marriage will have a
claim while the survivor of a caring and committed
life partnership
that produced a real family, would be left destitute.
(ii)The
socio-legal context: patriarchy and poverty
In
Fraser
this Court stressed the need for a nuanced and balanced
consideration of our society in which the demographic picture will
often
be quite different from that on which ‘first world’
western societies are premised. As Mohamed DP pointed out:
“
The socio-economic and
historical factors which give rise to gender inequality in South
Africa are not always the same as those
in many of the ‘first-world’
countries described.”
144
[Footnote omitted.]
This Court has on
numerous occasions stressed the importance of recognising patterns
of systematic disadvantage in our society
when endeavouring to
achieve substantive and not just formal equality.
145
The need to take account of this context is as important in the
area of gender as it is in connection with race,
146
and it is frequently more difficult to do so because of its hidden
nature. For all the subtle masks that racism may don, it
can
usually be exposed more easily than sexism and patriarchy, which
are so ancient, all-pervasive and incorporated into the
practices
of daily life as to appear socially and culturally normal and
legally invisible. The constitutional quest for the
achievement of
substantive equality therefore requires that patterns of gender
inequality reinforced by the law be not viewed
simply as part of an
unfortunate yet legally neutral background. They are intrinsic,
not extraneous, to the interpretive enquiry.
It should be
remembered that many of the permanent life partnerships dissolved
by death today would have been established in past
decades, when
conditions were even harsher than they are now, and people had far
less choice concerning their life circumstances.
Thus, in respect
of most of the significant transactions potentially affecting
present-day claims for maintenance, the social
reality would have
been that in a considerable number of families the man would have
regarded himself as the head of the household
with the right to
take all major decisions concerning the family. It would have been
he who effectively decided whether he and
his partner should
register their relationship in terms of the law. If she refused to
do what he wanted, he could have been
the one to threaten violence
or expulsion, with little chance of the law intervening.
147
Because he would in many cases have been the party to go out to
work while she stayed at home to look after the children and
attend
to his needs, it would have been he who accumulated assets, and he
who had the proprietary right to determine how they
were to be
disposed of after his death.
It
should be remembered too that the migrant labour system had a
profoundly negative effect on family life. An essential ingredient
of segregation and apartheid, it involved the deliberate and
targeted destruction of settled and sustainable African family life
in rural areas so as to provide a flow of cheap labour to the mines
and the towns.
148
The chaotic, unstable and oppressive legal universe in which the
majority of the population were as a consequence compelled
by law
and policy to live had a severe impact on the way many families
were constituted and functioned. Repeal of the racist
laws which
sustained the system, and entry into the new constitutional era,
opened the way to fuller lives for those whose dignity
had been
assailed, and gave them renewed opportunity to take responsibility
for their lives. Yet it did not in itself correct
the imbalances
inside the family or eliminate the desperate poverty that is still
so prevalent.
Sinclair
states that because there is exiguous welfare to protect the
victims of breakdown of intimate relationships, neither
public law
nor private law, on its own, is adequate, and a combination of
responses from both is called for.
149
Dealing specifically with the failure of the state to provide
protection for the vulnerable parties in cohabiting families,
she
concludes:
“
[T]here are no easy
solutions to the problem of poverty. Both intervention to regulate
and refraining from doing so manifest choices
made by the state
about the plight of its people. Not intervening, in the context of
cohabitation, manifests a choice to allow
substantial suffering to
continue unalleviated. Far from a liberal, enlightened stance, this
choice would permit the strong to
remain strong and the weak and
vulnerable to be removed from the consciousness of the law in the
name of respect for individual
autonomy.”
150
[Footnote omitted.]
(iii) The
historical and jurisprudential context: from matrimonial law to
family law
In a case like
the present it is vital to draw a distinction between matrimonial
law and family law. The difference between the
two is helpfully
analysed in a Discussion Paper recently issued on the question of
domestic partnerships by the South African
Law Reform Commission
151
(the SALRC Paper). The SALRC Paper points out that many of the
features of marriage which are assumed to have been present from
time immemorial are actually of more recent origin. What is clear,
however, is that marriage in its many forms has enjoyed a
uniquely
privileged status, while domestic partnerships have been virtually
unrecognised.
152
The SALRC Paper observes that opposite-sex partners were a largely
invisible group as far as the legal system was concerned:
any
acknowledgment of their existence tended to be characterised by
scathing references to their attempts to ‘masquerade as
husband
and wife’. They were excluded from the rights and obligations
which attached automatically to marriage, and it was
not even clear
whether any agreements which they entered into in order to create
parallel rights and obligations, were legally
enforceable.
153
The SALRC
Paper notes that over the years, however, there has been an
increasing focus on the rights of opposite and same-sex
partners,
and domestic partnerships have come to be perceived as functionally
if not formally similar to marriage. It observes
that the
increased recognition of intimate relationships outside of marriage
started in South African law with the imposition
of support
obligations created in domestic partnership agreements and
continued with the use of principles of unjust enrichment
to
provide property rights and to extend statutorily defined benefits
similar to partnerships.
154
The SALRC
Paper comments that initially the extension was rather grudging and
seemed primarily designed to ‘pass the buck’
from the welfare
authorities to the family,
155
and goes on to state:
“
Given South Africa’s
conservative and Calvinistic background, it is not surprising that
acceptance of domestic partnerships occurred
at a slower and more
reluctant rate than in countries like Canada, Sweden, England and
the United States of America. There is,
however, mounting
dissatisfaction with the failure of the law to adapt to changing
patterns of domestic partnership.”
156
[Footnote omitted.]
. . . .
“
[L]aw and social policy
reforms should aim to provide for both cohabiting couples in general
as well as . . . new family types.
This must be done whilst
acknowledging gender inequality and serious levels of violence
against women.”
157
[Footnote omitted.]
The SALRC
Paper concludes that legal regulation is needed since the existing
law contains inadequate mechanisms to address disputes
arising from
cohabitation relationships. The significant numbers involved mean
that the Napoleonic adage that “cohabitants
ignore the law and
the law ignores them” is no longer acceptable.
158
Where a domestic partnership has created responsibilities for, and
expectations of, the parties, the law should play a role
in
enforcing the responsibilities and realising the expectations of
the parties that are in conflict.
159
Academic
opinion also strongly favours recognition by the law of domestic
partnerships.
160
Thus Goldblatt states that families need to be understood in terms
of the functions that they perform rather than in terms of
traditional categories. If we move away from defining
relationships in terms of marriage, we can look at the actual
functions
that they perform in society.
161
She contends that the purpose of family law is to protect
vulnerable members of families and to ensure fairness between the
parties in family disputes. Women and children are vulnerable
groups in our society and often become poorer when families break
down. The lack of legal protection afforded to domestic
partnerships increases the vulnerability of these groups living
within
such arrangements. She concludes that a domestic
partnership is but one amongst many different types of family and
should be
included within the definition of family for the purposes
of family law.
162
The new way of
looking at family law represents an emphatic shift from what the
SALRC Paper refers to as a definitional approach
to conjugal rights
and responsibilities, towards a functional one. (I believe that it
is this shift that lies at the centre
of my divergence from the
majority judgment). According to the definitional argument, only
those who comply with the current
definition of marriage are
entitled to the rights and obligations attached to marriage, and
only a legally valid marriage can
create a family worthy of legal
protection.
163
The SALRC Paper offers its own reply. Against this argument, it
states, one may put what has been referred to as the functional
response, which emanates from the argument that marriage changes
over time and that the time has come for marriage to be redefined.
164
The SALRC
Paper goes on to say that supporters of the functional argument
advocate the definition of marriage according to the
function that
it serves and argue that other relationships can also fulfil the
functions that are traditionally conceived to
be attributes of
marriage only.
165
Such an approach looks beyond biology and the legal requirement of
marriage by considering the way in which a group of people
function.
As a result it has
been said that
“
[w]hen supporters of the
definitional argument assume that couples who have made a public
commitment by way of marriage are the
only ones who have a legal
responsibility to each other, and would be more likely to provide a
child with stability and security,
they are under a wrong
impression. . . . [E]ven married relationships are not guaranteed
for life and do end with inevitable accompanying
negative
consequences.”
166
It is also
submitted that it is an
“
unjustified generalisation
to contend that unmarried couples . . . are not committed to their
relationships . . . . Therefore, to
regard marriage as a guarantee
that the family created thereby would have certain characteristics
is a misrepresentation [as these]
characteristics could also be
present in other relationships.”
167
The SALRC
Paper suggests that conditions in South Africa today require a
shift from a purely definitional approach to marriage
to a
functional approach to the family
“
[b]ecause the exclusive
nature of the common-law definition of marriage does not reflect
social reality, [and it has thus] become
necessary under certain
legislation to adopt a functional approach to defining family
status, with the result that couples who
do not fit the traditional
family model may be deemed spouse of one another.”
168
According to the
SALRC Paper, the South African courts (and the legislator) should
determine whether or not to extend common law
and other legal
protections to family members on this basis. It asserts
furthermore that such an approach will lead to greater
fairness,
will bring law in line with reality and is more likely to harmonise
the law with the values underlying the Constitution.
169
(iv) The
legislative context
Recent
legislation has given extensive, if ad hoc, recognition to conjugal
relationships outside of marriage. The acknowledgment
of domestic
partnerships can be traced in the pre-constitutional era to the
Insolvency Act of 1936
. It is noteworthy that the Constitution
itself accepted this type of family unit by providing that a
detained person, including
a sentenced prisoner, has the right to
communicate with, and be visited by, that person’s spouse or
partner.
170
Since 1994 a flurry of statutes has recognised domestic
partnerships. These include the
Medical Schemes Act of 1998
, the
Prevention of
Domestic Violence Act of 1998
, the
Housing Act of
1997
, the Compensation for Occupational Injuries and Diseases Act
of 1997 and the
Basic Conditions of Employment Act of 1997
.
171
Of special
importance are the Employment Equity Act of 1998 (the Employment
Act) and the Promotion of Equality and Prevention
of Unfair
Discrimination Act of 2000 (the Equality Act). These were adopted
by Parliament to give legislative expression to
the need to achieve
equality in South Africa. Covering as they do a wide range of
activities and situations, they represent
particularly strong
legislative acknowledgment of the status of domestic partnerships.
Thus, the Employment Act provides in
section 1 that the definition
of “family responsibility” includes “responsibility of the
employees in relation to their
spouse or partner, their dependent
children or other members of their immediate family who need their
care or support.”
Similarly the
Equality Act provides in its definition section that “family
responsibility” means “responsibility in relation
to a
complainant’s spouse, partner, dependant, child or other members
of his or her family in respect of whom the member is
liable for
care and support.” The Act goes on to state that “‘marital
status’ includes the status or condition of being
single,
married, divorced, widowed or in a relationship, whether with a
person of the same or the opposite sex, involving a commitment
to
reciprocal support in a relationship.” A key element of this
definition is the acknowledgment of a relationship involving
a
commitment to reciprocal support. Though one does not use
legislation to interpret the Constitution, the existence of express
legislative purposes aimed at extending the ameliorative reach of
the law, must be a factor to be considered in terms of evolving
notions as to what is fair and unfair.
The fact that
many if not all statutes adopted in recent times dealing with the
rights of conjugal partners expressly include
non-married partners
within their ambit, is indicative of a new legislative approach
consistent with new values, and as the SALRC
Paper suggests, with
the spirit, purport and object of the Constitution. As was said in
Daniels
:
172
“
The fact that many statutes
adopted in recent times dealing with married persons expressly
include parties to Muslim unions under
their provisions is
indicative of a new approach consistent with constitutional values.
The existence of such provisions in other
statutes does not imply
that their absence in the Acts before us has special significance.
The Intestate Succession Act and the
Maintenance of Surviving
Spouses Act were both last amended before the era of constitutional
democracy arrived. The fact that
the new democratic Parliament has
not as yet included Muslim marriages expressly within the purview of
the protection granted by
the Acts, accordingly, cannot be
interpreted so as to exclude them contrary to the spirit, purport
and objects of the Constitution.”
173
The increased
legislative recognition being given to cohabitation suggests that
cohabitation has achieved a particular status
of its own. This
status gives it something of a marriage-like character, without
equating it for all purposes to marriage.
Unlike marriage, the
legal response to cohabitation is not dictated by general laws. In
practice it will depend upon the qualitative
and quantitative
nature of the cohabitation and the particular legal purpose for
which it is being claimed, or denied, that a
couple is cohabiting.
A distinction will usually be drawn, for example, between
short-term and long-term cohabitation, between
the casual affair
and the stable relationship, between relationships which have
resulted in the birth of children and those which
have not, and
between couples who live together and couples who do not. Marriage
law in this respect is different: you are either
married with all
the legal consequences that follow, or you are not. Your life
circumstances are irrelevant. The consequences
are to that extent
invariable. By way of contrast, Parry
174
observes it is not perhaps surprising that the legal response to
relationships outside marriage has been as variable as the

relationships themselves.
175
Finally,
government policy is clearly committed towards dealing with
families in functional rather than definitional terms. Thus
the
Department of Population and Welfare Development defines family as
follows:
“
Family: Individuals who
either by contract or agreement choose to live together intimately
and function as a unit in a social and
economic system. The family
is the primary social unit which ideally provides care, nurturing
and socialisation for its members.
It seeks to provide them with
physical, economic, emotional, social, cultural and spiritual
security.”
176
Conclusion
The SALRC
Paper, the thrust of legislation and academic opinion all point in
the same direction. It is towards establishing a
new legal
landscape consistent with the values of diversity, tolerance of
difference and the concern for human dignity expressed
in the
Constitution. The emphasis shifts from locating conjugal rights
and responsibilities exclusively within the tight framework
of
formalised marriages, towards embracing a wider canvass of rights
and responsibilities so as to include all marriage-like,
intimate
and permanent family relationships. The problem at the heart of
this case is that although the law has advanced rapidly
in granting
recognition to cohabitants in relation to public life and in
respect of third parties, it has done little, if anything,
to
regulate relationships amongst themselves.
One further
introductory point needs to be made. At the hearing of the present
matter none of the parties argued in principle
against granting
recognition to maintenance claims by cohabitant survivors. The
intervention by the state was limited to seeking
to ensure that the
remedy does not have the effect of pre-empting comprehensive and
thought-through legislative reform in the
area.
PART TWO
FRAMING AND
RESOLVING THE LEGAL QUESTION
(i) The origin and
purpose of the Act
It is in the
above context that I turn to the question of whether the exclusion
of non-married members of intimate life partnerships
from the
benefits of the Act constitutes unfair discrimination against them.
It is convenient to begin the enquiry by examining
the
circumstances in which the Act was passed. Its genesis explains
its object, which was to overcome a perceived source of
injustice
stemming from limitations of the common law.
The decision
of the Appellate Division in
Glazer v Glazer N.O.
177
established that under the common law (as interpreted in 1963) no
duty to support a disinherited surviving spouse rested on the
deceased spouse’s estate. In the course of his judgment, Steyn
CJ said:
“
It is one thing to hold a
divorced guilty husband liable for the maintenance of an innocent
wife. To grant a needy widow a share
in her husband’s deceased
estate or maintenance out of the assets in his estate, merely
because she is indigent and without regard
to other circumstances
which may have influenced him in deliberately making no provision
for her, is a somewhat different matter.
The recognition of the
obligation in the one case would not tend to prove the existence of
a right in the other case.”
178
Pleas were long
made for legislative intervention to overcome the harsh effects of
implacably subordinating a widow’s rights to
her deceased
husband’s freedom of testation. They finally bore fruit in the
form of the Act. The Act emanated from the recommendations
of the
South African Law Commission
179
to the effect that the institution of a legitimate portion
180
would not be the appropriate solution to the problem, and that a
claim for maintenance should be given to the surviving spouse
by
operation of law. Rejecting the notion that the testator would not
have disinherited the widow without good reason and that
considerations of morality should play a role, the Commission
stressed that the only consideration should be that of need.
181
It is
convenient to set out once again the provisions of section 2(1) of
the Act. They read:
“
If a marriage is dissolved
by death after the commencement of this Act the survivor shall have
a claim against the estate of the
deceased spouse for the provision
of his reasonable maintenance needs until his death or remarriage in
so far as he is not able
to provide therefor from his own means and
earnings.”
In terms of section
1 of the Act “survivor” is defined as “the surviving spouse in
a marriage dissolved by death.”
In
Daniels
this Court recently observed that although linguistically
gender-neutral, in substantive terms the Act
182
benefited mainly widows rather than widowers. The Court went on to
say:
“
The value of non-sexism is
foundational to our Constitution and requires a hard look at the
reality of the lives that women have
been compelled to lead by law
and legally-backed social practices. This, in turn, necessitates
acknowledging the constitutional
goal of achieving substantive
equality between men and women. The reality has been and still in
large measure continues to be
that in our patriarchal culture men
find it easier than women to receive income and acquire property.”
183
[Footnotes omitted.]
The Court stressed
that the Act be seen as a measure intended primarily to rescue
widows from possible penury. I would add that
the survivor’s need
for maintenance is particularly acute if she finds herself penniless
at a time of emotional bereavement accompanied
by a dramatic change
in life circumstances. To the extent, then, that the widow has a
claim against the estate at least for her
basic needs to be
satisfied, the choice by the deceased not to provide for her by will
(or simply the consequences of his failure
to make a will) is to be
overridden or disregarded.
(ii)
The
nature of the constitutional enquiry
It is against
this particular legal background, and within the broad legal
landscape delineated in Part One of this judgment,
that the
question in this matter must be asked: given the manifest remedial
purposes of the Act and the constitutional requirement
of ensuring
equal protection and benefit of the law, must the Act’s ambit be
extended to cover survivors of permanent life
partnerships that
have not been consecrated by marriage?
In what the
SALRC Paper referred to as the Calvinistic and conservative
atmosphere of the pre-constitutional era, the answer to
this
question would have been simple. People living in extra-marital
unions would have been condemned at worst as living in
sin, and at
best as being irresponsible. They would have been disentitled from
claiming any benefit whatsoever under the law.
Today, however, we
are not bound by the original intent of the legislators. We are
living in an open and democratic society
in which pluralism and
diversity are acknowledged,
184
different forms of family life are tolerated by society and
recognised by the law, and the right to equality is listed before
any other right in our Constitution.
Section 9(1)
of the Constitution states that:
“
Everyone is equal before the
law and has the right to equal protection and benefit of the law.”
This provision is
given further texture by section 9(3) which provides:
“
The state may not unfairly
discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex,
pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
culture, language and
birth.”
Section 9(5) goes
on to say that:
“
Discrimination on one or
more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination
is fair.”
The Constitution
accordingly declares that everyone has the right to equal protection
and benefit of the law, and expressly forbids
unfair discrimination
on the ground of marital status. So the legal issue before us is
whether the non-inclusion of unmarried
cohabitants under the Act
violates their constitutional right not to be discriminated against
on the ground of marital status.
The
restriction of the benefit to married survivors only, clearly
differentiates them from unmarried survivors who share with
them
the status of bereavement and need after the death of their
intimate life partner. All that distinguishes them is their
marital status: the one group was married, and the other was not.
This Court has held that once there is differentiation on
one of
the listed grounds, there is discrimination.
185
The only issue remaining, then, is whether the discrimination is
fair.
(iii) The
framework of the enquiry
In considering
the fairness of the Act it becomes vital to decide what the
framework of the enquiry should be. In my view, the
very nature of
the equality enquiry requires a framework of reference that goes
beyond the classificatory landscape established
by the impugned
measure itself. As Wilson J pointed out in the Canadian case of
R
v Turpin
:
“
[I]t is important to look
not only at the impugned legislation which has created a distinction
that violates the right to equality
but also the larger social,
political and legal context . . . . A finding that there is
discrimination will, I think, in most but
perhaps not all cases,
necessarily entail a search for disadvantage that exists apart from
and independent of the particular legal
distinction being
challenged.”
186
The larger
socio-legal context has already been described. I will now examine
the larger constitutional and legal context. In
particular, I will
give the reasons why I believe that the context for the analysis
should be that of family law, and not just
that of matrimonial law.
The point of
identifying differentiation on the grounds of marital status is to
save from unfair treatment those families that
cannot invoke the
protections provided by matrimonial law. By implication, the
enquiry must shift from the relatively precise,
circumscribed and
rule-governed terrain of matrimonial law to the wider and evolving
fields of family law. It is important to
note that the present
case does not involve any attack on the rules and principles of
matrimonial law. Indeed, the challenge
is not to any malevolence
in the Act, but to the limits of its beneficence.
Supporting the
need for enlarging the scope of family law, Goldblatt underlines in
a helpful analysis that families need to be
understood on the basis
of the functions that they perform, rather than in terms of
traditional categories. If we move away
from defining
relationships in terms of marriage, we can look at the actual
functions that they perform in society.
187
The question asked is: where a domestic partnership has created
responsibilities for, and expectations of, the parties, should
the
law play a role in enforcing the responsibilities and realising the
expectations of the parties that are in conflict?
188
Goldblatt
states further that the purpose of family law is to protect
vulnerable members of families and to ensure fairness between
the
parties in family disputes. Women and children are vulnerable
groups in our society and often become poorer when families
break
down.
189
A domestic partnership is but one amongst many different types of
family and should be included within the definition of family
for
the purpose of family law. These relationships produce a sense of
responsibility and commitment and create dependence between
the
parties. It also implies that the partners intend the relationship
to be stable and enduring.
190
Goldblatt
notes that more than a million South Africans are in non-marital
relationships with their intimate partners. These
‘domestic
partnerships’ play a crucial role in meeting the financial,
emotional, reproductive and other needs of their members.
There
are many reasons why people, often across race and class divides,
cohabit without marrying. One of the main reasons for
the
prevalence of such relationships in South Africa is the extent of
migrancy in our country.
191
She observes that many men marry in the rural areas and form
domestic partnerships in the urban areas which are often lengthy
and committed.
192
The issue in
the present matter, then, is not whether it is fair for the state
to single out married partners for claims of maintenance,
as
opposed, say, to siblings or parents or life-long friends of the
deceased. Nor is it to decide whether widows are entitled
to
special consideration not accorded to other persons who might be
alone, elderly and in need. It is, first, to examine the
specific
purpose that the Act is intended to serve in the context of the
overall objectives of family law. Then it is to determine
whether
in substantive terms the committed life partner of the deceased
bears the same relationship to the deceased in every
respect as a
married partner, save for not having gone through the formalities
of marriage. Finally, it is to decide if such
person in such
circumstances can fairly be excluded from that benefit.
(iv)
Marital status as a ground of unfair discrimination
In considering
the question of fairness I do not believe that a mechanical
application of the presumption of unfairness provided
by section
9(5) of the Constitution takes the matter very far. Rather,
analysis should begin with identification of the specific
kinds of
marginalisation and exclusion which led to the identification of
marital status as a constitutionally outlawed ground
of unfair
discrimination.
These would
include the directly discriminatory practices of the past, such as
penalising women for being married (e.g. women
teachers and civil
servants who automatically lost their employment on marriage on the
basis that they could not hold down a
job and look after their
husbands and children at the same time); or penalising women for
not being married (e.g. for bringing
disgrace on an institution,
neighbourhood, building or workplace by having a child ‘out of
wedlock’); or treating married
women as losing the autonomy they
formerly had as single women, because from marriage onwards they
required their husband’s
consent for various legal transactions.
Alternatively, certain posts, such as ambassadorships, were as a
matter of practice
reserved for married people only. In addition,
there were indirect forms of disadvantage affecting people not
living as a married
couple. Thus single parents, widows and
widowers could be denied housing, or suffer from tax or social
security disadvantages
or be refused mortgages because they did not
fit the format of the married and male-headed-couple household.
Two points
need to be noted. First, it is women rather than men who in
general suffered disadvantage because of their status
of being
married or not married. Any investigation of unfairness resulting
from marital status would accordingly have to take
account of the
manner in which patriarchy resulted in elements of structured
advantage and disadvantage being associated with
the status of
being and not being married.
The second is
that by the time the Constitution was adopted, legal disabilities
associated with being married had been eliminated
from the common
law. Nevertheless, marital status was expressly identified in
section 9(3) as one of the grounds of potential
discrimination.
This would seem to suggest that it was included precisely to
protect the rights of people who were vulnerable
not because they
were married, but because they were not married. It is not easy to
see why, if it was not regarded as a prototypical
source of unfair
discrimination in our society, marital status was itemised in
section 9(3) in the first place. By implication
its inclusion
problematises the vulnerability of the unmarried, and directs
constitutional attention to the specific difficulties
they face.
The obvious classes of people requiring protection against unfair
discrimination in this category would be single
parents, divorcees,
widows, gay and lesbian couples and cohabitants.
Once more it
will be instructive to look at the manner in which the Canadian
Supreme Court has approached the question. In
Miron,
193
where the applicants challenged an accident compensation statute on
the grounds that it provided for the needs of married dependents
only, McLachlin J held as follows:
“
Exclusion of unmarried
partners from accident benefits available to married partners under
the policy violates s. 15(1) of the
Charter
. Denial of equal
benefit on the basis of marital status is established in this case,
and marital status is an analogous ground
of discrimination for
purposes of s. 15(1). First, discrimination on that basis touches
the essential dignity and worth of the
individual in the same way as
other recognized grounds of discrimination violative of fundamental
human rights norms. Second,
marital status possesses
characteristics often associated with recognized grounds of
discrimination under s. 15(1). Persons involved
in an unmarried
relationship constitute an historically disadvantaged group, even
though the disadvantage has greatly diminished
in recent years. A
third characteristic sometimes associated with analogous grounds,
namely distinctions founded on personal,
immutable characteristics,
is also present, albeit in attenuated form. While in theory, the
individual is free to choose whether
to marry or not to marry, in
practice the reality may be otherwise. Since the essential elements
necessary to engage the overarching
purpose of s. 15(1) —
violation of dignity and freedom, an historical group disadvantage,
and the danger of stereotypical group-based
decision-making — are
present, discrimination is made out.”
194
The point was
reinforced in the same matter by L’Heureux-Dubé J, who
stated that the question whether or not persons
in relationships
analogous to marriage have typically suffered historical
disadvantage is not clear-cut, partly because the modern
phenomenon
of common law cohabitation as an alternative to marriage is a
comparatively recent one. She went on to observe that
the
subgroups within the ground of marital status that have typically
suffered the most historical disadvantage and marginalisation
are
individuals who are single parents, or are divorced or separated.
The mere fact that the common law spouses are not in the
first
group that comes to mind when considering historical disadvantage
does not mean, however, that such relationships have
escaped
completely from societal opprobrium.
195
She concluded that in fact
“
non-traditional
relationships outside of marriage have in the past generally been
frowned upon and considered undesirable by large
portions of
society. Only recently have they come to be increasingly accepted.
That they have become more accepted does not mean,
however, that
they are now accepted without reservation into the mainstream of
society.
. . . .
I therefore have no difficulty
concluding that persons in opposite-sex relationships analogous to
marriage have suffered, and continue
to suffer, some disadvantage,
disapproval and marginalization in society, and are therefore
somewhat sensitive to legislative distinctions
having prejudicial
effects.”
196
South African
society has indeed become far more tolerant than it once was
towards different ways of creating families, including
cohabitation
not formalised in marriage. Yet there can be no doubt that many
prejudices of the past linger on, particularly
against women who
are seen as not conducting their lives in a manner befitting their
culture or religion. A certain degree of
conventional disdain
coupled with moral disapproval is still directed at unmarried
couples. By the very nature of their unconventional
relationship
they are regarded as either immoral, irresponsible or defiant.
This will be irrespective of the actual degree of
commitment,
seriousness and stability of their family relationships.
It is
important to stress at this point that the issue is not whether
members of religious or cultural communities should as a
matter of
faith be free to regard marriage as a sacred contract which
constitutes the only acceptable gateway to legitimate sexual
intimacy and cohabitation. Nor is it to query the corollary right
of such believers to condemn those who are guilty of what
they may
regard as fornication and adultery. Clearly their entitlement as
part of their religious belief to criticise what they
regard as
misconduct remains unchallenged. The question, rather, is whether
the state should be bound by such concerns. Going
further, it is
whether the state is required or entitled by these, or by more
secular considerations, to give exclusive recognition
for purposes
of spousal maintenance to married survivors only. In seeking to
answer this question, I will consider why the state
gives
pre-eminence to the institution of marriage, examine the
constitutional values that marriage both embodies and promotes,
and
then ask whether these require that marriage be given absolute
status under the Act.
(v) The
institution of marriage
In
Satchwell
197
this Court acknowledged the role of marriage in society in the
following terms:
“
In terms of our common law,
marriage creates a physical, moral and spiritual community of law
which imposes reciprocal duties of
cohabitation and support. The
formation of such relationships is a matter of profound importance
to the parties, and indeed to
their families and is of great social
value and significance.”
198
As the SALRC Paper
comments, the rights and obligations associated with marriage are
vast. Besides the religious and social importance
of marriage,
marriage as an institution was (at the time the SALRC Paper was
produced) the only source of socio-economic benefits
such as the
right to inheritance, medical insurance coverage, adoption, access
to wrongful death claims, spousal benefits, bereavement
leave, tax
advantages and post-divorce rights.
199
The SALRC Paper adds that marriage is also important in regulating
the legitimacy of children and the financial relationship
between
the parties on breakdown of the relationship.
200
As this Court
said in
Dawood
,
201
“[t]he decision to enter into a marriage relationship and to
sustain such a relationship is a matter of defining significance
for many if not most, people . . . .” I would add that our
painful history provides additional reasons why the institution
of
marriage should receive support. In the pre-democratic era the
racist policies of the state involved disgraceful use of the
law in
ways that showed profound disrespect for the marriages of the
majority. Thus the migrant labour system, administered
under
racist laws and enforced by racist courts, deliberately targeted
the self-sufficiency and autonomy of rural African families,
forcing married men to live in what were called bachelor quarters
in the towns. Prohibitions on inter-racial marriage and the
refusal of the law to recognise Hindu and Muslim marriages
prevented people from marrying persons of their choice and from

receiving recognition of the marriage rites and ceremonies
appropriate to their beliefs. A host of laws permitted gross
intrusion
by police and state officials into the intimate lives of
the majority, who as a result were compelled to live in chaotic
social
and legal circumstances. Special support for marriage today
accordingly helps heal the ravages of the past. It promotes social
stability and supports dignity by giving state recognition to
fundamental choices people make about their lives.
Formalisation
of marriages provides for valuable public documentation. The
parties are identified, the dates of celebration and
dissolution
are stipulated, and all the multifarious and socially important
steps which the public administration is required
to make in
connection with children and property, are facilitated.
Furthermore, the commitment of the parties to fulfil their
responsibilities is solemnly and publicly undertaken. This is
particularly important in imposing clear legal duties on the party
who is in the stronger position economically. And, since the
economically advantaged party is usually the man, the result in
general terms is that the solemnisation of marriage tends to favour
gender equality rather than the reverse.
There can
accordingly be no doubt that the institution of marriage is
entitled to very special recognition and protection by the
law.
The issue, however, is not whether marriage should in many respects
be privileged. Clearly it has to be. The question
is whether it
must be exclusive.
For
convenience, I will refer to the principle of restricting claims
under the Act to married survivors only, as the ‘exclusivity
principle’. The first constitutional issue, then, is whether the
exclusivity principle is compatible with the prohibition
of unfair
discrimination on the grounds of marital status. If it is held to
be unfair, the next matter for decision is whether
such unfairness
is justifiable under section 36 of the Constitution.
202
It is not easy to separate the question of fairness from that of
justification, since each involves elements of proportionate
balancing, and inevitably there will be overlap between them.
Nevertheless I will deal with each in turn, on the basis that
the
focus of fairness is on the impact on the interests of those
affected, while the emphasis in the case of justification is
on the
public interest.
(vi) The
fairness of limiting the benefits of the Act to married persons
only
Any
consideration of the fairness of the exclusivity principle must
take account of this Court’s emphasis on the need to recognise
diversity of family formations in South Africa. In the
First
Certification
case
203
the Court stated that:
“
Families are constituted,
function and are dissolved in such a variety of ways, and the
possible outcomes of constitutionalising
family rights are so
uncertain, that constitution-makers appear frequently to prefer not
to regard the right to marry or to pursue
family life as a
fundamental right that is appropriate for definition in
constitutionalised terms.”
204
In
Dawood
205
O’Regan J said that:
“
[F]amilies come in many
shapes and sizes. The definition of the family also changes as
social practices and traditions change.
In recognising the
importance of the family, we must take care not to entrench
particular forms of family at the expense of other
forms.”[Footnote
omitted.]
Ackermann J made
similar statements in
National Coalition (2)
,
206
dealing with the rights of same-sex life partners:
“
It is important to emphasise
that over the past decades an accelerating process of transformation
has taken place in family relationships,
as well as in societal and
legal concepts regarding the family and what it comprises.
Sinclair
and Heaton
, after alluding to the profound transformations of
the legal relationships between family members that have taken place
in the
past, comment as follows on the present:
‘
But the current period of
rapid change seems to ‘strike at the most basic assumptions’
underlying marriage and the family.
. . .
Itself a country
where considerable political and socio-economic movement has been
and is taking place, South Africa occupies a
distinctive position in
the context of developments in the legal relationship between family
members and between the State and
the family. Its heterogeneous
society is “fissured by differences of language, religion, race,
cultural habit, historical experience
and self-definition” and,
consequently, reflects widely varying expectations about marriage,
family life and the position of
women in society.’” [Reference
omitted.]
Similarly, Skweyiya
J in
Du Toit
207
emphasised:
“
[F]amily life as
contemplated by the Constitution can be provided in different ways
and that legal conceptions of the family and
what constitutes family
life should change as social practices and traditions
change.”[Reference omitted.]
In each of the
above matters there was a specific legal issue which prompted a
general observation about the need to adopt a flexible
and
evolutionary approach to family life.
208
I do not think it is appropriate to cherry-pick statements from
the above cases simply on the basis that they appear to be

favourable to any particular outcome in the present matter. Though
all highlight the importance of the courts not being bound
by
traditional views of how families should properly be constituted,
none deals expressly and directly with the issue of the
rights of
unmarried heterosexual life partners. Indeed, each case underlines
how important its specific social, historical and
legal context
is.
209
The one
unifying theme lurking in the evolving approach to all the
different forms of family units being created is that the general
purpose of family law is to promote stability, responsibility and
equity in intimate family relations. In this context it is
significant that the specific objective of the Act is to furnish a
preferred claim to a survivor who is not otherwise provided
for and
finds herself in need. In the present matter, hardship on its own,
even if associated with the status of not being married,
would not
in itself be sufficient to establish unfairness. The Constitution
does not seek to take to its bosom and respond to
all the
inequities to be found in our society. Not every unfairness in
life becomes unfairness in law. In order for unfairness
in a
constitutional sense to be established, there must be a specific
link between the survivor’s intimate relationship with
the
deceased, her state of need, the overall appropriateness in the
circumstances of debarring her from being able to claim

maintenance, and the resulting impact on her dignity of
re-inforcing the negative type-casting of her as an unworthy person

because she was not married.
The critical
question accordingly must be: is there a familial nexus of such
proximity and intensity between the survivor and
the deceased as to
render it manifestly unfair to deny her the right to claim
maintenance from the estate on the same basis as
she would have had
if she and the deceased had been married? I believe that there are
in fact at least two circumstances in
which, applying this test, it
would be unfair to exclude permanent, non-married life partners
from the benefits of the Act.
The first
would be where the parties have freely and seriously committed
themselves to a life of interdependence marked by express
or tacit
undertakings to provide each other with emotional and material
support. The unfairness of the exclusion would be particularly
evident if the undertakings had been expressed in the form of a
legal document. Such a document would satisfy the need to have
certainty, at least inasmuch as it establishes a clear commitment
to provide mutual support within their respective means and
according to their particular needs. Like a marriage certificate,
the document would thus both prove the seriousness of the
commitment and at the same time satisfy the need for certainty.
What should be
central, however, is the serious content of the mutual commitment
and not the particular form in which it is expressed.
Thus the
undertaking could be inferred from conduct that clearly established
a relationship acknowledging a mutual duty of support.
In
Satchwell
210
Madala J pointed out that:
“
[H]istorically our law has
only recognised marriages between heterosexual spouses. This
narrowness of focus has excluded many relationships
which create
similar obligations and have a similar social value.
. . . .
The law attaches a duty of
support to various family relationships, for example, husband and
wife, and parent and child. In a society
where the range of family
formations has widened, such a duty of support may be inferred as a
matter of fact in certain cases of
persons involved in permanent,
same-sex life partnerships. Whether such a duty exists or not will
depend on the circumstances
of each case.”
211
These sentiments
were directed specifically at the situation of same-sex couples. I
believe that a similar approach would be apposite
in the case of
cohabitants. What
Satchwell
establishes is that one can
infer as a matter of fact whether a duty exists, not from any
principle of the common law, but from
the actual life circumstances
of the parties in each case.
Unless the
purpose of the Maintenance Act is to stigmatise unmarried life
partners as being beyond the pale, I can see little
reason in
fairness why the responsibility for maintenance should not survive
the death of a partner where either by express or
by tacit
agreement, each has undertaken as part of their relationship to
support the other within his or her means. If anything,
the
element of voluntarism and autonomy is particularly strong in these
circumstances. Resistant to acknowledging the need to
respect such
undertakings are notions in society of ‘living in sin’ and
‘bohemianism’, reminiscent of stereotypical notions
imposed by
the intransigent ‘Calvinist and conservative’ public morality
of yesteryear. Whether consciously expressed or
unconsciously
held, these are inappropriate for an open and democratic society
that acknowledges diversity of lifestyle and bases
itself on
respect for human dignity, equality and freedom.
In considering
the claims of manifestly meritorious survivors any eagerness to
uphold mainstream respectability must accordingly
cede to the need
to acknowledge the reality of committed, if heterodox, family
relationships. The issue should not be seen exclusively
as one of
the sanctity of marriage, or simply of the important social purpose
that marriage serves, but as one of the integrity
of the family
relationship. Conventional condemnation of such relationships,
though less powerful than it used to be, is a dangerous
backcloth
against which to consider fundamental rights. The danger lies
precisely in the apparently natural and commonsensical
character of
regarding marriage as normal and anything outside of it as deviant,
thoughtless, bizarre or objectionable.
Secondly, I am
of the view that responsibility for maintenance can arise not only
from express or tacit agreement but directly
from the nature of the
particular life partnership itself. The critical factor will be
whether the relationship was such as
to produce dependency for the
party who, in material terms at least, was the weaker and more
vulnerable one (and who, in all
probability, would have been unable
to insist that the deceased enter into formal marriage). The
reciprocity would be based
on care and concern rather than on
providing equal support in material or financial terms.
One thinks of
the woman who bore children fathered by the deceased, looked after
them in infancy, saw them through school, cared
for the home,
attended to the needs of the deceased and nursed him through
sickness and the infirmities of old age. While he
earned and
accumulated assets, she nurtured the family and remained penniless.
Because of the way in which our patriarchal society
has allocated
roles and responsibilities, it will not have been unusual for the
deceased to have accumulated assets and paid
towards the upkeep of
the home, while the survivor contributed what she had to offer,
namely, her care and sweat equity. The
deceased might in fact have
resisted requests by her that they get married in terms of their
religion or before a magistrate.
Yet whether or not she can show
that she sought marriage and he did not, the crucial fact remains
that there is a direct relationship
between her present need and
her past relationship with the deceased. In the words of the
Equality Act, what matters is whether
in the relationship there was
a commitment to reciprocal support.
In the not
uncommon circumstances mentioned above the nexus between the
survivor and the estate is so strong that I do not think
any
meaningful distinction can be drawn between what is legally unfair
and what is socially and morally unfair. It must be borne
in mind
that the claim is not being brought to establish unfairness under
the common law, or even to show that the common law
itself is
unfair. The issue is whether the statute, interpreted in the light
of the common law as it stands, impacts unfairly
on a class of
persons because of their marital status. Had the purpose of the
Act been primarily to promote marriage as an institution,
it might
not have been unfair to exclude unmarried people from its reach.
The purpose of the Act, however, was to provide a
statutory claim
against the estate for recently bereaved widows in need. The key
ingredients are the familial relationship,
intimacy and need.
Taking them in combination, in the circumstances of the very
typical example given above, I conclude that
to exclude the
survivor simply because she has no marriage certificate, is not
only socially harsh, it is legally unfair.
Maintenance by
its nature is concerned with survival. Relegation to poverty,
coupled with the imputation of having been a lawless
interloper in
the life of the deceased, severely affronts the dignity of the
survivor. The indignity is all the greater where
the relationship
with the deceased was marked by intense mutuality of concern and
freely given reciprocal support.
212
Where legal formulae function in a stereotypical manner that is
impertinent to those affected, serious equality issues are engaged.
As so often happens in cases where prejudice is habitual and
mainstream, the hurt to those affected is not even comprehended
by
those who cause it, and passes unnoticed by members of the
mainstream.
I should add
that while it is true that caring for one’s family is one of
life’s great joys, and as such calls for no extra
reward,
fairness does not inevitably translate into sacrifice. As this
Court said in
Baloyi,
213
the purpose of constitutional law is to convert misfortune to be
endured into injustice to be remedied.
214
It would indeed be a perverse interpretation of family law that
obliged one to disregard the fact that the circumstances of
need in
which a typical survivor might find herself, were produced
precisely by her selfless devotion to the deceased and their
family
during his lifetime. I believe it is socially unrealistic, unduly
moralistic and hence constitutionally unfair, for the
Act to
discriminate against the powerless and economically dependent
party, now threatened with destitution, on the basis that
she
should either have insisted on marriage or else withdrawn from the
relationship.
The
issues are not simple. There is a great social need to promote
marriage as an institution which provides stability, security
and
predictability for intimate family relations. By so doing our
society stresses the importance of people taking responsibility
for
their lives, and showing respect for the fact that they are members
of a law-governed and interdependent community. It encourages
self-reliance and self empowerment; helps people escape from a
world made up of victimisers and victims into one consisting of
free and equal people; and induces the previously disadvantaged and
subordinated to advance in life by calling on their inner
strengths
rather than allowing themselves to fall into dependence on external
support.
At
the same time it is necessary to acknowledge and respond in a
sensitive and practical manner to the fact that people have had
to
accommodate themselves to harsh and diverse life circumstances over
which they may have had little control. Many have been
obliged to
shoulder burdens heavier than any notion of fairness would
tolerate. All measures aimed at redistribution of such
uneven
loads, whether through family law or welfare law, risk being
criticised as being calculated to undermine self-reliance.
Yet,
while over-paternalism can be disempowering and negate the very
objective of achieving equality, what has disparagingly
been called
the concept of judicial tough love
215
can be unduly insensitive to the actual and overwhelming problems
people have had to face in life. The knowledge that the law
will
intervene to provide basic justice will in fact assist such people
to overcome a sense of helplessness and fatalism. That,
indeed, is
why courts intervene to protect fundamental rights. In so doing
they enhance rather than undermine dignity and self-respect.
The reality
against which the Act must be interpreted is that many recently
bereaved, elderly, and poor women find themselves
with no assets or
savings other than their clothing and cooking utensils, little
chance of employment and only the prospect of
a state old-age
pension to keep them from penury. Thus, while it is necessary to
emphasise the importance of people taking responsibility
for their
lives, and to acknowledge the extraordinary self-reliance shown by
many women in the face of extreme hardship, the
law cannot ignore
the fact that lack of resources has left many women with harsh
options only. Their choice has been between
destitution,
prostitution and loneliness, on the one hand, and continuing
cohabitation with a person who was unwilling or unable
to marry
them on the other. Any consideration of the fairness or otherwise
of excluding from maintenance claims people who chose
the latter
path, must take account of this.
It follows
from the above that the exclusivity principle operates unfairly in
at least two broadly defined sets of circumstance,
neither of which
is so far-fetched, hypothetical or unusual as to escape the net of
constitutional concern. In each case the
unfairness operates both
directly and indirectly. In direct terms it treats the unmarried
claimants in a way that disrespects
the actual commitment they have
shown to their families through a lifetime of endeavour, while
excluding them from being potential
beneficiaries under the Act.
Furthermore, it tells the world that there is something unworthy
and not respectable about them
because they had a family without
getting married. Indirectly, it impacts on all persons living in
permanent intimate life partnerships
outside of marriage. It
reinforces the stereotype that, irrespective of the actual
character of their relationship and the reality
of their commitment
to each other, they are all irresponsible and unconcerned about the
need to live in a good family relationship
that is infused with
love, concern and mutual support.
There might
well be other circumstances in which it would be unfair to
stigmatise a surviving cohabitant as being unworthy of
claiming
spousal maintenance. The two examples given, however, are
sufficient to establish that the Act is invalid for
under-inclusivity.
I conclude therefore that the blanket nature of
the exclusivity principle results in unfair discrimination in
conflict with
section 9(3) of the Constitution.
Justifiability
There appear
to be two possible arguments based on public interest which could
be advanced in favour of justifying retention of
the exclusivity
principle, in spite of the fact that it operates unfairly.
The first is
connected with problems of proof. The argument is that the absence
of a marriage certificate makes it difficult
to determine whether
the life partnership ever existed or whether it continued until the
death of the deceased. There are undoubtedly
great advantages in
terms of certainty that flow from the registration of marriages,
and concomitant disadvantages related to
difficulties of proof
which would result from the proposed recognition for certain
purposes of non-formalised cohabitation.
It needs to be
remembered, however, that the claim for maintenance stems from the
social regard to be given to commitment, intimacy,
interdependency
and stability in the family. In the case of a married survivor
these will be presumed to have existed as a matter
of law. However
brief, unstable and non-intimate the marriage might have been, the
certificate alone would suffice to grant
a claim. In the case of
the unmarried survivor, on the other hand, the partnership
relationship would have to be proved as a
matter of fact.
As the SALRC
Paper makes clear, the problems of proof are far from insuperable.
216
The many statutes that have encompassed the rights of cohabitants
since the achievement of democracy presuppose that appropriate
proof can be found. The SALRC Paper shows
217
that there is rich international experience
218
that can be drawn on. In addition it is possible to build on and
adapt the factors already enunciated by this Court in relation
to
problems of proof concerning same-sex committed life partnerships.
219
In my view,
then, such difficulties of proof as exist might be of relevance to
the remedy that should be crafted. They do not
justify the
continuation of unfair treatment to manifestly meritorious
survivors who find themselves in need after a lifetime
of devotion
to the family relationship.
The second and
more substantial contention put forward to justify the exclusivity
principle is that any departure from it would
undermine the
institution of marriage, which must be supported at all costs. As
this judgment has indicated, the institution
of marriage plays a
particularly important role in South Africa today and must without
doubt be supported by the law. It is
not clear to me, however, how
marriage is dignified through the imposition of unfairness on those
who for one reason or another
live their lives outside of it.
The law would
continue to privilege marriage, even if partnerships are given
limited recognition. The purpose of family law is
to promote
stability and fairness in family relationships. Marriage is the
most widely recognised and most straightforward way
of achieving
this. The law recognises this fact. Mere production of a marriage
certificate is sufficient to establish the degree
of commitment and
seriousness that the Act requires. No proof need be provided of
permanency, intimacy, cohabitation, fidelity
or shared lives. The
law attributes to marriage all these qualities in irrebutable
fashion. It will continue to privilege married
survivors. Thus,
even if the executors of the estate could show that none of the
above qualities existed in fact, the survivor
would still be able
to lodge a claim for maintenance, simply on the basis that she and
the deceased had been married.
Furthermore,
whether or not Parliament decides one day to narrow or eliminate
the gap between married couples and unmarried life
partners, I do
not believe that in the interim the institution of marriage can
only survive if alternative forms of family organisation
are
disregarded in all circumstances. Indeed, the element of
voluntariness which lies at the heart of marriage is threatened
rather than enhanced if people feel coerced into marrying for fear
of adverse consequences if they fail to do so.
It follows
that the continued blanket exclusion of domestic partners from the
ambit of the Act, irrespective of the degree of
commitment shown to
the family by the survivor, cannot be justified. The Act is
accordingly invalid to the extent that it excludes
unmarried
survivors of permanent intimate life partnerships as identified
above, from pursuing claims for maintenance.
PART THREE
THE REMEDY
The Minister
of Justice and Constitutional Development points out that a law
reform process is currently underway which seeks
to make a
determination on whether domestic partnerships should be protected,
and if so, exactly how that protection should be
secured. She
states that the South African Law Reform Commission is considering
proposals for law reform with regard to the
following issues:
whether domestic partnerships should be legally recognised and
regulated;
whether marital rights and obligations should be further extended
to domestic partnerships;
whether a scheme of registered partnerships should be introduced;
whether marital rights, obligations and benefits should require
registration or marriage and which should depend only on the
existence of a domestic relationship;
whether legislation should provide for same-sex marriage; and
whether marital rights and obligations should be further extended
to people living in interdependent relationships having no
sexual
element.
There
are various options currently being considered by the South African
Law Reform Commission. These may be broadly divided into
the
following categories:
Same sex partnerships;
Registered partnerships; or
Unregistered partnerships.
The
Minister accordingly avers that the backdrop against which relief by
this Court must be viewed is that it should not stifle
the law
reform process that is currently underway.
I find these
arguments persuasive. The very factor which gives rise to
constitutional concern, namely, the huge variety of non-standard
family relationships in South Africa, is the one that makes
crafting a remedy in the present matter particularly difficult.
Problems of proof arise, and although not insuperable, as the gay
and lesbian permanent life partnership cases showed, they pose
difficulties. There are problems about de facto
polygamy.
There are difficulties of overlap and interaction between various
statutes, as well as potential impact on the common
law. Third
parties stand to be affected. It has implications for inheritance
law. Above all, we are concerned with sensitive
social issues
requiring maximum impact from all concerned. They cry out for
democratic debate and legislative solution. I believe
that
over-ambitious judicial prescription could impede comprehensive
legislative reform and retard rather than advance the achievement
of fairness in this field.
In these
circumstances I believe the best way forward is to follow a
non-prescriptive remedial path. I would declare the Act
to be
unconstitutional to the extent of the inconsistency outlined in
this judgment, and suspend the operation of the declaration
of
invalidity for two years. This would give Parliament a free hand
as to how the under-inclusiveness of the Act should best
be
remedied.
The question
then arises as to whether a special order would need to be made to
vindicate any entitlement of the applicant in
this matter. I
believe not. This is not because I have doubts as to whether her
relationship was of a kind that merited the
protection of the Act.
Acceptance of a duty of mutual support was built into the
relationship of interdependence between herself
and the deceased.
This was not a casual affair but a committed, enduring and
intensely intimate
220
marriage-like relationship, one that survived over many years all
the stresses of the bipolar condition which affected the moods
of
the deceased. She provided what she had to offer, namely,
companionship, management of the household and personal support
in
every way, while he contributed companionship and a regular
allowance for her needs and the needs of the household. Tacitly,
if not expressly, a clear duty of mutual support was undertaken.
What deprives her of the right to be a claimant now is the
fact
that reasonable provision has in fact been made for her under the
will.
It should be
noted, however, that an important part of her objective in bringing
the case (with the support of the Women’s Legal
Centre) was to
highlight the marginalisation by the law of women cohabitants in
situations similar to hers. I believe that guided
by the
principles outlined above, the legislature is constitutionally
obliged to determine and provide for the circumstances
in which
permanent life partnerships should qualify for maintenance. In the
result, to the extent that in my view the litigation
should lead to
a declaration of invalidity on the grounds of under-inclusivity,
the applicant should have the satisfaction of
succeeding in her
moral objective, if not in her material one.
Since
preparing this judgment I have had the opportunity of reading the
judgment by Mokgoro and O’Regan JJ. In succinct terms,
and
through a close examination of how family law operates in the broad
landscape of our legal system today, it captures core
aspects of
the reasoning which I believe should govern this matter. Though I
prefer to locate the issues in a wider context,
I align myself with
the specific considerations they advance, and concur in the order
they propose.
For the
appellant: A Katz SC and P Farlam instructed by CK
Friedlander Shandling Volks Attorneys.
For the first and second respondents: G J Marcus SC and S Cowen
instructed by the Women’s Legal Centre.
For the third and
fourth respondents: K Pillay instructed by the State Attorney (Cape
Town).
For the amicus
curiae: K Pillay instructed by Webber Wentzel Bowens.
1
Section 1 of the Maintenance of Surviving Spouses Act 27 of 1990
(the Act) defines “survivor” as “the surviving spouse in
a
marriage dissolved by death.”
2
Robinson and Another v Volks NO and Others
2004 (6) SA 288
(C) at 299J;
2004 (6) BCLR 671
(C) at 682I.
3
The letter of refusal stated:
“
prima facie
it would appear that the deceased
and your client considered their position during the lifetime of the
deceased and elected not
to enter into a marriage in accordance with
the laws of South Africa. That election, included implicitly, if
not expressly, the
choice not to have the automatic consequences of
the laws of marriage apply to their relationship. The provisions
contained in
the Last Will of the deceased dated 24
th
December 1999 are consistent with that election.”
4
Section 38 of the Constitution confers standing and provides as
follows:
“
Anyone listed in this section has the right to
approach a competent court, alleging that a right in the Bill of
Rights has been
infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons
who may approach
a court are ─
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who
cannot act in their own name;
(c) anyone acting as a member of, or in the interest
of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its
members.”
5
Section 9 of the Constitution is set out in para 47 below.
6
Section 10 reads as follows:
“Everyone has inherent dignity and
the right to have their dignity respected and protected.”
7
Act 66 of 1965.
8
Above n 2 SALR at 298E-G; BCLR at 681F-H.
9
Id SALR at 299A; BCLR at 682B.
10
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at para 54;
1997 (11) BCLR 1489
(CC) at para
53.
11
Above n 2 SALR at 299E-F; BCLR at 682E-F.
12
Id SALR at 299F-G.
13
Goldblatt “Regulating Domestic Partnerships ─ A Necessary Step
in the Development of South African Family Law” (2003) 120
SA
Law Journal
610.
14
Above n 2 SALR at 299I; BCLR at 682H.
15
Above n 2 SALR at 302E-I; BCLR at 684G-5B.
16
Satchwell v President of the Republic of South Africa and Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR 986
(CC).
17
Government Gazette 25643 GN R 1603, 31 October 2003.
18
2002 (5) SA 713
(CC);
2002 (10) BCLR 1023
(CC).
19
Rule 30 of the old rules in Government Gazette 6199 GN R 757, 29 May
1998.
20
Above n 18 at para 8.
21
South African Law Reform Commission Discussion Paper 104, Project
118: Domestic Partnerships at
viii, where the Commission suggests the concept of
registering cohabitation as a means to recognising them, a
solution which is not advocated in the CALS Report.
22
Goldblatt et al “Cohabitation and Gender in the South African
Context ─ implications for law reform: A research report prepared
by the Gender Research Project of the Centre for Applied Legal
Studies, University of the Witwatersrand”, November 2001 at 24
at
para 2.2.
23
Id executive summary at ii.
24
1963 (4) SA 694
(A).
25
(1906) 23 SC 532.
26
Above n 24 at 706H-707B.
27
Section 1 of the Act.
28
Above n 7.
29
See in general
Daniels v Campbell NO
and Others
[2004] ZACC 14
;
2004
(5) SA 331
(CC);
2004 (7) BCLR 735
(CC).
30
Above n 16.
31
Act 88 of 1989.
32
Above n 16 at para 9.
33
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In Re Hyundai
Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1)
SA 545
(CC);
2000 (10) BCLR 1079
(CC).
34
Id at para 24.
35
Above n 10.
36
The equivalent of section 9(1) of the 1996 Constitution.
37
The equivalent of section 9(3) of the 1996 Constitution.
38
The equivalent of section 36 of the 1996 Constitution.
39
Section 15 guarantees the right to freedom of religion, belief and
opinion and provides:
“
(1) Everyone has the right to freedom of conscience,
religion, thought, belief, and opinion.
(2) Religious observances may be conducted at state or
state-aided institutions, provided that:
(a) those observances follow rules made by the
appropriate public authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
(3) (a) This section does not prevent legislation
recognising ─
(i) marriages concluded under any tradition, or a
system of religious, personal or family law; or
(ii) systems of personal and family law under any
tradition, or adhered to by persons professing a particular
religion.
(b) Recognition in terms of paragraph (a) must be
consistent with this section and the other provisions of the
Constitution.”
40
See
Daniels v Daniels; Mackay v Mackay
1958 (1) SA 513
AD at
532E, where Hoexter JA referred to marriage as “the most important
unit of our social life, the family.” See also in
Belfort v
Belfort
1961 (1) SA 257
AD at 259H, where the same judge states
that marriage “is the very foundation of the most important unit
of our social life,
the family.”
41
Dawood
and Another v Minister of
Home Affairs and
Others; Shalabi and Another v Minister of Home Affairs and Others;
Thomas and Another v Minister of Home Affairs
and Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC);
2000 (8) BCLR 837
(CC).
42
Id at paras 30-1.
43
The concept of marriage as a civil right has been advanced by some
American courts in a variety of circumstances, for example,
Skinner
v. Oklahoma
[1942] USSC 129
;
316 US 535
, 541 (1942);
Perez v. Lippold
198
P.2d 17
, 20-1 (1948). See also
Loving v. Virginia
388 US 1
(1967), where Chief Justice Warren speaking for the majority of the
Supreme Court included language describing marriage as one
of the
basic civil rights of man.
See further Noonan, who in “The
Family and the Supreme Court”
(1973) 23
Catholic University Law
Review
255
at 273 comments as follows on the
Loving v.
Virginia
case:
“The vital personal right recognized by
Loving v. Virginia
is
not the right to a piece of paper issued by a city clerk. It is not
the right to exchange magical words before an agent authorized
by
the state. It is the right to be immune to the legal disabilities
of the unmarried and to acquire the legal benefits accorded
to the
married. Lawful marriage in the society’s hierarchy of values
recognized by
Boddie v. Connecticut
and in the host of laws
yet unchallenged – the tax law, the common law of property, the
law of evidence – is a constellation
of these immunities and
privileges. To say that legal immunities and legal benefits may not
depend upon marriage is to deny the
vital right. To say that Equal
Protection requires the equal treatment of the married and the
unmarried in all respects is to
deny the hierarchy of values of our
society.”
In addition, Article 23(2) of the
International Covenant on Civil and Political Rights provides that
“[t]he right of men and women
of marriageable age to marry and to
found a family shall be recognised”; and Article 18 of the African
[Banjul] Charter on Human
and Peoples’ Rights provides that “[t]he
family shall be the natural unit and basis of society. It shall be
protected by the
State which shall take care of its physical health
and moral.”
44
Fraser
v Children’s Court, Pretoria North, and Others
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC).
45
Id at para 26.
46
Dissent of Sachs J at paras 213-4; 218.
47
Id at para 220.
48
Id at para 219.
49
Freeman and Lyon
Cohabitation without Marriage
(Gower
Publishing Company Limited, Hants, England 1997) at 19-20, describe
the position of women in England in the following terms:
“
The position of women in society today is closely
related to their role within the family. An understanding of
woman’s oppression
accordingly requires a description and analysis
of the position of women in today’s privatised family. As Mary
McIntosh rightly
has observed, ‘ultimately the very construction
of men and women as separate and opposed categories takes place
within, and in
terms of, the family’. Women are expected to be
dependent on men. Their role is geared to the household. They are
responsible
for child care, as well as for the care of the aged and
handicapped. Their domestic labour is seen as non-productive, not
real
work. Women, particularly married women, have to be
housewives: if they do not carry out the service roles depicted here
they
are ‘bad’ housewives, but housewives nevertheless.
Furthermore, as Kate Millett noted, ‘sex role is sex rank’. ‘As

long as woman’s place is defined as separate, a male-dominated
society will define her place as inferior’.” (footnotes omitted)
50
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at paras 32-50.
51
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at paras 41-69;
1997 (11) BCLR 1489
(CC) at
paras 40-68. See also
Hoffmann v South African Airways
2001
(1) SA 1
(CC);
2000 (11) BCLR 1211
(CC) at para 24.
52
Above n 1 at para 41.
53
Above n 2 at para 51 of the SALR and para 50 of the BCLR.
54
Egan v Canada
(1995) 29 CRR (2d) 79 at 105, cited with
approval by this Court in the
Hugo
case above n 1 at para 41.
55
Above n 4.
56
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 28. See also
Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
1996
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para 97.
57
Dawood
id
at paras 30-1.
58
Adopted on 27 June 1981 by the Eighteenth Assembly of the Heads of
State and Government of the Organization of African Unity and
entered into force on 21 October 1986.
59
The importance of the family in the context of the African Charter
is also apparent from the duties which individuals have under
the
Charter. These duties appear, for example, in article 27(1) which
provides that “[e]very individual shall have duties towards
his
family and society . . . .”; and article 29(1) which provides that
“[t]he individual shall also have the duty [t]o preserve
the
harmonious development of the family and to work for the cohesion
and respect of the family; to respect his parents at all
times, to
maintain them in case of need”.
60
Adopted by General Assembly resolution 2200A (XX1) of 16 December
1966 and entered into force on 23 March 1976.
61
Adopted and proclaimed by General Assembly resolution 217A (III) of
10 December 1948.
62
Article 23(4) of the ICCPR. T
he emphasis
is mine.
63
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC).
64
Id at para 26.
65
Bhe and Others v Magistrate, Khayelitsha and Others (Commission
for Gender Equality as Amicus Curiae); Shibi v Sithole and Others;
South African Human Rights Commission and Another v President of the
Republic of South Africa and Another
[2004] ZACC 17
;
2005 (1) BCLR 1
(CC) at
para 172.
66
Above n 7 at para 31.
67
Robinson and Another v Volks NO and Others
2004 (6) SA 288
(C);
2004 (6) BCLR 671
(C).
68
The order made by the High Court read as follows:
“
1. It is declared that: the omission from the
definition of ‘survivor’ in section 1 of the Maintenance of
Surviving Spouses
Act 27 of 1990 of the words ‘and includes the
surviving partner of a life partnership’ at the end of the
existing definition
is unconstitutional and invalid.
2. The definition of ‘survivor’ in section 1 of the
Maintenance of Surviving Spouses Act 27 of 1990, is to be read as if
it
included the following words after the words ‘dissolved by
death’;
‘
and includes the surviving partner of a life
partnership’.
3. The omission from the definition in section 1 of the
Maintenance of Surviving Spouses Act 27 of 1990 of the following, at
the
end of the existing definitions, is unconstitutional and
invalid:
‘“
Spouse” for the purposes of this Act shall
include a person in a permanent life partnership’;
‘“
Marriage” for the purposes of this Act shall
include a permanent life partnership’.
4. Section 1 of the Maintenance of Surviving Spouses
Act 27 of 1990 is to be read as though it included the following at
the end
of the existing definition;
‘“
Spouse” for the purposes of this Act shall
include a person in a permanent life partnership’;
‘“
Marriage” for the purposes of this Act shall
include a permanent life partnership’.
5. The order in paragraphs 1, 2, 3 and 4 above shall
have no effect on the validity of any acts performed in respect of
the administration
of a deceased estate that has finally been wound
up by the date of this order.”
69
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC).
70
Id at para 31. See also
Satchwell v President of the Republic of
South Africa and Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR 986
(CC) at paras 13 and 22;
Du Toit and Another v Minister of
Welfare and Population Development and Others (Lesbian and Gay
Equality Project as Amicus Curiae)
[2002] ZACC 20
;
2003 (2) SA 198
(CC);
2002
(10) BCLR 1006
(CC) at para 19.
71
Marriages in terms of African customary law were referred to as
“black customary unions” in section 35 of the Black
Administration
Act, 38 of 1927 and were not recognised as legal
marriages. Accordingly, a widow of a customary marriage was held
not to have
a claim in delict for the loss of support caused by the
death of her husband. See
Suid-Afrikaanse Nasionale Trust en
Assuransie Maatskappy Bpk v Fondo
1960 (2) SA 467
(A). The
position was different in customary law, see
Vakubi Ngqongqozi
and Another v Noselem Nyalambisa and Others
4 NAC 32 (1919).
See the comment by Dlamini “Claim By Widow of Customary Union for
Loss of Support” (1984) 101
SA Law Journal
34.
72
See the Recognition of African Customary Marriages Act, 120 of 1998.
73
These marriages were historically not recognised as valid marriages
because they were potentially polygynous. See
Ismail v Ismail
1983 (1) SA 1006
(A).
74
See, for example,
Ryland v Edros
1997 (2) SA 690
(C);
1997
(1) BCLR 77
(C);
Amod v Multilateral Motor Vehicle Accidents Fund
(Commission for Gender Equality Intervening)
1999 (4) SA 1319
(SCA).
75
For a discussion of the rules regulating marital power before its
abolition, see Hahlo
The South African Law of Husband and Wife
5
ed (Juta, 1985) at 194; see also the discussion in Van Heerden et al
Boberg’s Law of Persons and the Family
2 ed (Juta, 1999) at
161ff.
76
But see
Bhe and Others v Magistrate, Khayelitsha and Others
(Commission for Gender Equality Intervening); Shibi v Sithole and
Others; South
African Human Rights Commission and Another v
President of the Republic of South Africa and Another
[2004] ZACC 17
;
2005 (1)
BCLR 1
(CC).
77
See the
Matrimonial Property Act, 88 of 1984
; Marriage and
Matrimonial Property Law Amendment Act, 3 of 1988;
General Law
Fourth Amendment Act, 132 of 1993
.
78
See the discussion in Hahlo “Widow’s Claim to Maintenance out of
Deceased Husband’s Estate” (1962) 79
SA Law Journal
361.
In 1969, there was an abortive attempt to enact a remedial
provision, the Family Maintenance Bill. See also Hahlo “The
Sad
Demise of the Family Maintenance Bill 1969” (1971) 88
SA Law
Journal
201.
79
See generally the
Maintenance Act, 99 of 1998
; See also
Bannatyne
v Bannatyne
(Commission for Gender Equality, as Amicus
Curiae)
[2002] ZACC 31
;
2003 (2) SA 363
(CC);
2003 (2) BCLR 111
(CC).
80
See, however, the recent judgment of the SCA in
Fourie and
Another v Minister of Home Affairs and Another
(Lesbian and
Gay Equality Project Intervening)
SCA 232/2003, 30 November
2004, as yet unreported in which a majority of the court issued a
declarator to the effect that “marriage
is the union of two
persons to the exclusion of all others for life.” This was
decided shortly before judgment was handed down
in this matter.
81
The duty to live together forms part of the
consortium omnis
vitae
“which obliges spouses to live together, afford each
other reasonable marital privileges, and be faithful to each other”
(Van
Heerden et al above n 9 at 172).
82
Voet 25.3.8;
Jodaiken v Jodaiken
1978 (1) SA 784
(W) at 788H.
83
Act 25 of 1961.
84
Section 11(1) of the Marriage Act. Sections 2-9 of the Act govern
the appointment of marriage officers. All magistrates are marriage
officers
ex officio
(see section 2(1) of the Marriage Act).
85
Section 23 of the Marriage Act.
86
Section 12 of the Marriage Act.
87
Section 29(2) of the Marriage Act.
88
Sections 29(2) and (4) of the Marriage Act.
89
Section 29A(1) of the Marriage Act.
90
See section 30(1) of the Marriage Act.
91
Id
92
See section 29A(1) of the Marriage Act.
93
See section 29A(2) of the Marriage Act.
94
See the general discussion in Sinclair
The Law of Marriage
Volume 1 (Juta, 1996) at 442-452; and Van Heerden et al above n
9
at 235ff.
95
Act 116 of 1998. See in particular subsections 7(1)(c) and (d).
Note also that the
Domestic Violence Act provides
remedies to
cohabiting partners. Section 1 of the Act defines “domestic
relationship” to include people who “(whether they
are of the
same or of the opposite sex) live or lived together in a
relationship in the nature of marriage, although they are not,
or
were not, married to each other, or are not able to be married to
each other” (section (b) of the definition).
96
See
section 11
of the
Matrimonial Property Act, 88 of 1984
. The
abolition of the marital power was only extended to marriages
between African people in 1988 – see the Marriage and Matrimonial
Property Amendment Act, 3 of 1988. Both these statutes only
abolished the marital power prospectively. In 1993 the
General Law
Fourth Amendment Act, 132 of 1993
abolished the marital power in all
marriages which had been solemnised before the 1984 and 1988
Matrimonial Property Acts had come
into force. See also the full
discussion in Sinclair above n 28 at 126-130.
97
See subsections 15(2) and 15(3) of the
Matrimonial Property Act, 88
of 1984
. Joint estates must now be administered in terms of chapter
III of the Act.
98
See, for example,
section 21(1)
of the
Insolvency Act, 24 of 1936
,
and the consideration of that provision by this Court in
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC). Interestingly,
section 21(13)
provides that the word “spouse”
in
section 21
is to be read to include “a woman living with a man
as his wife or a man living with a woman as her husband, although
not married
to one another”.
99
Section 195
of the
Criminal Procedure Act, 51 of 1977
provides,
subject to certain exceptions, that the spouse of an accused is a
competent, but not compellable, witness for the prosecution.
Section 196
provides that the spouse of an accused is a competent
witness for the defence, but may not be compelled to give evidence
by a co-accused
of the accused spouse. Interestingly,
section
195(2)
of the
Criminal Procedure Act provides
that for the purposes
of evidence in criminal proceedings “marriages” include
customary law marriages and marriages concluded
under any system of
religious law, but not cohabitation.
100
The aquilian action entitles a spouse whose spouse has been killed
or injured by the wrongful act of a third party to recover damages
for the patrimonial loss suffered. A claim for loss of the
non-material aspects of
consortium
does not lie. See
Union
Government (Minister of Railways and Harbours) v Warneke
1911 AD
657
;
Marine and Trade Insurance Co Ltd v Mariamah
and
Another
1978 (3) SA 480
(A).
101
See paras 175-176 of the judgment of Sachs J.
102
Sinclair above n 28 at 270 records that the number of people living
together as cohabitants had grown from 463 000 in 1970 to 1,2
million people in 1991.
103
See the examples given in the judgment of Sachs J at paras 175-176.
104
See South African Law Reform Commission Discussion Paper, Paper 104,
Project 118, “Domestic Partnerships”.
105
See paras 109-111.
106
See, for example, the Netherlands Act of 16 July 1997, Staatsblad
1997, 324 and Act of 17 December 1997, Staatsblad 1998, 600,
as
cited in the Discussion Paper above n 38. See also the discussion
in the South African Law Reform Commission Discussion Paper
above n
38 at 72-80; the Law Commission in the United Kingdom has made a
similar proposal for the United Kingdom which has not
yet been
adopted, see the South African Law Reform Commission Discussion
Paper at 90-91.
107
See, for example,
President of the Republic of South Africa and
Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at
paras 41-43;
Harksen
above n 32 at paras 51-54 of the SALR
and paras 50-53 of the BCLR.
108
See the discussion in Sinclair above n 28 at 274-277; see also Neave
“Living Together – The Legal Effects of the Sexual Division
of
Labour in Four Common Law Countries”
(1991) 17
Monash
University Law Review
14
at 17.
109
See Cameron et al
Honoré’s South African Law of Trusts
5 ed (Juta, 2002) at 110.
110
There are in fact two types of universal partnership known in our
law, the
societas
universorum bonorum
and the
universorum quae ex quaestu veniunt.
See
Isaacs v Isaacs
1949 (1) SA 952
(C) at 955. The former is an agreement in terms of
which the parties agree to pool all their existing and future
property, and
the latter is an agreement in which the parties agree
to pool all property they receive during the term of the
partnership. We
are referring to the
societas
universorum
bonorum
in the text.
111
1984 (2) SA 451
(T) at 454F-455A.
112
There is some doubt as to the precise test to be met in establishing
the existence of a tacit contract. See the approach set out
in
Standard Bank of South Africa Ltd and Another v Ocean Commodities
Inc and Others
1983 (1) SA 276
(A) at 292B, but see the comments
in
Joel Melamed and Hurwitz v Cleveland Estates (Pty) Ltd; Joel
Melamed and Hurwitz v Vorner Investments (Pty) Ltd
[1984] ZASCA 4
;
1984 (3) SA
155
(A) at 164G-165H and also
Mühlmann v Mühlmann
1984
(3) SA 102
(A). Not much turns on this uncertainty for our
purposes.
113
See the discussion in Sinclair above n 28 at 277-78.
114
In
Nortje v Pool NO
1966 (3) SA 96
(A) it was held that where
tangible improvements which increase the market value of the
property are made by one person to the
property of another, a claim
in unjustified enrichment will lie. The same case held that there
was no general claim for unjustified
enrichment in our law. See,
however,
Kommissaris van Binnelandse Inkomste v Willers
1994
(3) SA 283
(A) where the court held that
Nortje’s
case does
not necessarily exclude the further extension of liability for
unjustified enrichment.
115
See
section 1(1)(a)
of the
Intestate Succession Act, 81 of 1987
.
116
A child’s portion is calculated by producing a number calculated
by identifying the number of descendants and adding one to it
to
represent the spouse. The cash value of the estate is then divided
by that number.
117
See
section 1
of the
Intestate Succession Act which
provides:
“
(1) If after the commencement of this Act a person
(hereinafter referred to as the ‘deceased’) dies intestate,
either wholly
or in part, and—
(a) is survived by a spouse, but not by a descendant,
such spouse shall inherit the intestate estate;
(b) is survived by a descendant, but not by a spouse,
such descendant shall inherit the intestate estate;
(c) is survived by a spouse as well as a descendant—
(i) such spouse shall inherit a child’s share of the
intestate estate or so much of the intestate estate as does not
exceed in
value the amount fixed from time to time by the Minister
of Justice by notice in the Gazette, whichever is the greater; and
(ii) such descendant shall inherit the residue (if
any) of the intestate estate;
(d) is not survived by a spouse or descendant, but is
survived—
(i) by both his parents, his parents shall inherit the
intestate estate in equal shares; or
(ii) by one of his parents, the surviving parent shall
inherit one half of the intestate estate and the descendants of the
deceased
parent the other half, and if there are no such descendants
who have survived the deceased, the surviving parent shall inherit

the intestate estate; or
(e) is not survived by a spouse or descendant or
parent, but is survived—
(i) by—
(aa) descendants of his deceased mother who are
related to the deceased through her only, as well as by descendants
of his deceased
father who are related to the deceased through him
only; or
(bb) descendants of his deceased parents who are
related to the deceased through both such parents; or
(cc) any of the descendants mentioned in subparagraph
(aa), as well as by any of the descendants mentioned in subparagraph
(bb),
the intestate estate shall be divided into two equal
shares and the descendants related to the deceased through the
deceased mother
shall inherit one half of the estate and the
descendants related to the deceased through the deceased father
shall inherit the
other half of the estate; or
(ii) only by descendants of one of the deceased
parents of the deceased who are related to the deceased through such
parent alone,
such descendants shall inherit the intestate estate;
(f) is not survived by a spouse, descendant, parent,
or a descendant of a parent, the other blood relation or blood
relations of
the deceased who are related to him nearest in degree
shall inherit the intestate estate in equal shares.”
118
The amount was published in
Government Gazette
11188 GN 483,
18 March 1988.
119
Glazer v Glazer NO
1963 (4) SA 694
(A) at 707B-D.
120
See, for example, the Canadian Maintenance and Custody Act, RS,
1989, c 160; see also the New South Wales Property (Relationships)
Act of 1984; see also the law in the Netherlands, above n 40; see
also section 160 of the Tanzanian Law of Marriage Act 1971 as
cited
in Sinclair above n 28 at 297n108.
121
Above n 38.
122
Section 36(1) reads as follows:
“
Limitation of rights.—(1)  The rights in
the Bill of Rights may be limited only in terms of law of general
application
to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human
dignity, equality
and freedom, taking into account all relevant
factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.”
123
Pacta successoria
, as they are called, are prohibited in terms
of our common law. There is no uniform view on whether such
contracts are merely
unenforceable (see
Salzer v Salzer
1919
EDL 221
;
Van Jaarsveld v Van Jaarsveld’s Estate
1938 TPD
343)
or contrary to public policy and therefore invalid (
Nieuwenhuis
v Schoeman’s Estate
1927 EDC 266).
For a general discussion
see the discussion in Christie
The Law of Contract in South
Africa
4 ed (Butterworths, 2001) at 415-6. It is not necessary
to engage in this debate here and it is sufficient, for the purposes
of
this case, simply to highlight that such contracts are not
enforceable in South African law.
124
Section 172(1) of the Constitution reads as follows:
“
When deciding a constitutional matter within its
power, a court—
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency;
and
(b) may make any order that is just and equitable,
including—
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority to
correct the defect.”
125
See section 2(g) of the Canadian
Matrimonial Property Act, RS
1989
and the discussion thereof in
Nova Scotia (Attorney General) v
Walsh
2002 SCC 83
;
[2002] 4 SCR 325
(SCC).
126
This case is concerned with heterosexual cohabitation relationships
only. It does not concern gay and lesbian life partnerships.
The
result of a constitutional challenge to section 2(1) of the Act on
the basis of unfair discrimination on the ground of sexual
orientation may be different to the challenge launched in this case.
127
Above n 4.
128
Act 27 of 1990. Section 2(1) of the Act provides:
“
If a marriage is dissolved by death after the
commencement of this Act the survivor shall have a claim against the
estate of the
deceased spouse for the provision of his reasonable
maintenance needs until his death or remarriage in so far as he is
not able
to provide therefor from his own means and earnings.”
Section
9(3) of the Constitution provides that:
“
The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including race,
gender, sex,
pregnancy,
marital status
, ethnic or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.”
[My emphasis].
129
Sinclair
The Law of Marriage
:
Based on H.R. Hahlo: The
South African Law of Husband and Wife
vol 1 (Juta, 1996) at 292.
130
Id at 297-8.
131
Rhode
Justice and Gender
139
quoted in Sinclair (above
n 2) at 298n109.
132
Miron v Trudel
[1995] 2 SCR 418.
133
Of five against four.
134
Above n 5 at 420-1.
135
Id at 421.
136
Id at 471-2.
137
Nova Scotia (Attorney General) v Walsh
2002 SCC 83
;
[2002] 4 SCR 325.
138
By a majority of eight to one.
139
Above n 10 at para 54.
140
Id at paras 41-4.
141
Id at paras 203-4. It is not necessary to consider whether in South
African circumstances, where welfare provisions are extremely
limited, employment opportunities restricted and the common law has
as of yet taken only tentative steps to encompass the equivalent
of
the notion of a constructive or resulting trust as the basis for
granting a share of the family home to the survivor, and the
doctrine of unjustified enrichment has not been developed to provide
appropriate relief, the decision in
Walsh
is consistent with
our law. See also Goldblatt who contends that the existing
matrimonial property regimes should serve only as
a guide to courts,
which should be given a broad discretion to redistribute property on
the basis of equity, taking into account
the various material and
non-material contributions of the parties, the form of the
partnership and any other factor which the
legislature or the courts
consider to be useful. In the case of intestate and testate
succession, a domestic partner should be
entitled to his/her share
of the partnership estate. In the case of intestate succession, the
deceased’s partner should also
be entitled to a spouse’s share
of the deceased estate. Goldblatt “Regulating domestic
partnerships — A necessary step in
the development of South
African family law” (2003) 120
SA Law Journal
610 at 625.
142
Fraser v Children’s Court, Pretoria North, and Others
1997 (2)
SA 261
(CC);
1997 (2) BCLR 153
(CC).
143
Id at paras 26 and 43.
144
Above n 15 at para 44.
145
President of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC);
Harksen v Lane
NO
and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC).
146
See
Brink v
Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6)
BCLR 752
(CC) and
Hugo
id.
147
See
S v Baloyi (Minister of Justice and Another Intervening)
[1999] ZACC 19
;
2000 (2) SA 425
(CC);
2000 (1) BCLR 86
(CC).
148
See Sachs
Protecting Human Rights in a New South Africa
(Oxford University Press, 1990) chapter 6 at 64-78.
149
Above n 2 at 301.
150
Id at 302.
151
South African Law Reform Commission ‘Domestic Partnerships’
Discussion Paper 104 Project 118. (The closing date for comments
was 1 December 2003). At the hearing of this matter much attention
was paid to whether a report of a survey done by the Gender
Research
Project of the Centre for Applied Legal Studies on Cohabitation and
Gender in the South African Context – Implications
for Law Reform,
November 2001 should be admitted. I agree with the view that it is
generally inappropriate to admit such evidence
at a late stage in
the proceedings. I accordingly find it unnecessary to go beyond the
SALRC Paper as a dependable and public
source for relevant factual
information.
152
Id at 3 para 1.2.2.
153
Id at 3 para 1.2.3.
154
Id at 4 para 1.2.6.
155
Id
156
Id at 5 para 1.2.8. The SALRC Paper also notes at 17 para 2.1.8-10
that South African statistics also demonstrate the rising trend
in
domestic partnerships. Even conservative statistics indicate that a
very large number of people live in domestic partnerships
in South
Africa. Statistical data show that only about 40% of Africans and
Coloured women are married. In the 1996 Census the
figures for
people living together in the different population groups were as
follows: African: 1 056 992; Coloured: 132 180; Indian/Asian:
7119;
White: 84 027; Unspecified: 8181. Even allowing for imprecision,
the Paper states, we must recognise that there are large
numbers of
people in dependence-producing relationships who are ignored by the
law.
157
Above n 24 at 26 para 2.2.34.
158
Id at 17 para 2.1.10. A similar point is made in a report by the
Law Commission of Canada which calls for recognition and support
for
all close personal adult relationships. Entitled “
Beyond
Conjugality
”, it states that:
“
[M]arriages still constitute a predominant choice
for opposite-sex conjugal unions. Nevertheless, opposite-sex
cohabitation –
whether as an alternative to marriage, as a prelude
to marriage or as a sequel to marriage – is a growing phenomenon
that now
has widespread social acceptance.
. . .
The state cannot create healthy relationships; it can
only seek to foster the conditions in which close personal
relationships that
are reasonably equal, mutually committed,
respectful and safe can flourish.
. . .
There are many instances where the law imposes rights
and responsibilities on the basis of a particular kind of
relationship, rather
than examining the nature of that relationship.
In other words, rights and responsibilities are imposed on the basis
of the status
rather than the function of a relationship.” See
http://www.lcc.gc.ca/en/themes/pr/cpra/report.asp
[Last visited 25 January 2005]. Executive Summary, 21 December
2001.
159
Goldblatt above n 14 at 617.
160
Incomplete research I have done indicates the last writer to oppose
recognition of cohabitation was Hahlo in 1985. See Hahlo

‘Cohabitation, Concubinage and the Common Law Marriage’ in Kahn
(ed)
Fiat Iustitia: Essays in Memory of Oliver Deneys Schreiner
(Juta, 1983) at 262-3. See too Hahlo
The South African Law
of Husband and Wife
5 ed (Juta, 1985) at 35-42.
161
Above n 14 at 616-7.
162
Id at 610-11.
163
Above n 24 at 164 para 7.1.17.
164
Id at 165 para 7.1.18.
165
Id
166
Id at 174 paras 7.1.51-7.1.52.
167
Id at 174 paras 7.1.52-7.1.53.
168
Id at 177 para 7.1.63.
169
Id at 178 para 7.1.64.
170
Section 35(2)(f)(i).
171
The following is an incomplete overview of the statutes indicating
the legislator’s acknowledgment of domestic partnerships:
The
Insolvency Act 24 of 1936
.
Section 21(13)
provides that the word “spouse” not only means
wife or husband in the legal sense, but includes wife or husband by
virtue of
marriage according to any law or custom, and also a woman
living with a man as his wife or a man living with a woman as her
husband,
although not married to one another.
The
Independent Media Commission Act
148 of 1993
.
Section 6(1)(f)
prohibits a person from being
appointed or remaining a commissioner if such a person or his or her
spouse, partner or associate
holds an office in or with or is
employed by any person or company, organization or other body, which
has a direct or indirect
financial interest in the
telecommunications, broadcasting, or printed media industry.
The
Pensions Fund Act 24 of 1956
.
Although
section 1
(as amended by
section 6
of the
Pensions Fund
Amendment Act 22 of 1996
) does not expressly define a domestic life
partner as a “dependant” in relation to a member, it does make
provision for persons
who are factually (but not legally) dependent
on the member for maintenance. It may as a result be inferred that
a person whose
life partner was a member of the fund may be included
as a dependant for the purpose of the Act.
The
Special Pensions Act 69 of 1996
.
The definition of “spouse” in section 31(2)(iii) of the Act
refers to “the partner . . . in a marriage relationship”
which
latter relationship is defined to include “a continuous
cohabitation in a homosexual or heterosexual partnership for a
period of at least 5 years”.
The Constitution of the Republic of
South Africa. Section 35(2)(f)(i), dealing with the rights of
arrested, detained and accused
persons, provides that such person
has the right to communicate with and to be visited by his or her
spouse or partner.
The
Lotteries Act 57 of 1997
.
Section
3(7)(a)(ii)
, states (inter alia) that a person shall not be
appointed or remain a board member if such person through his spouse
or life partner
(inter alia) has or obtains a direct or indirect
financial interest in any lottery or gambling or associated
activity.
Section 3(8)
states that a member of the board or his or
her spouse or life partner, may not for a period of 12 months after
the termination
of membership of the board take up employment or
receive any benefit from persons making certain applications in
terms of this
Act.
Compensation for Occupational Injuries
and Diseases Amendment Act 130 of 1993. Section 1 states that a
“dependant of an employee”
includes, if there is no widow or
widower, “a person with whom the employee was at the time of the
employee’s death living
as husband and wife”.
Basic Conditions of Employment Act 75
of 1997
.
Section 27(2)(c)(i)
provides that an employer must provide
an employee, at the request of the latter, three days paid leave,
which the employee is
entitled to take in the event of the death of
the employee’s spouse or life partner.
The
Housing Act 107 of 1997
.
Section
8(6)(e)(ii)(aa)
(prior to its repeal) provided that a “spouse”
included a person with whom the member lived as if they were married
or with
whom the member habitually cohabited.
The
South African Civil Aviation
Authority Act 40 of 1998
.
Section 9(4)
states that if a member of
the Board, or his or her immediate family member, life partner or
business associate, has any direct
or indirect financial interest in
any matter to be dealt with at any meeting of the Board, that member
must then (inter alia) disclose
the interest, not attend board
meetings during consideration of the matter and may not take part as
a member of the Board in the
consideration of the matter.
Section
11(5)(b)
states that the Chief Executive Officer or his or her
spouse, immediate family member, life partner or business associate,
may
not hold any direct or indirect financial interest in any civil
aviation activity or the civil aviation industry without approval
or
unless such approval is open to public inspection.
The
Employment Equity Act 55 of 1998
.
Section 1
which defines “family responsibility” includes
“responsibility of employees in relation to their spouse or
partner, their
dependent children or other members of their
immediate family who need their care or support”.
The
Domestic Violence Act 116 of 1998
.
In
section 1
a “domestic relationship” is defined as a
relationship between a complainant and a respondent who are of the
same or opposite
sex and who live/lived together in a relationship
in the nature of marriage, although they are not married to each
other.
The
Medical Schemes Act 131 of 1998
.
Section 24(2)(e)
states that the Council shall not register a
medical scheme unless it is satisfied that the medical scheme will
not unfairly discriminate
directly or indirectly against any person
on arbitrary grounds which include marital status.
The Road Traffic Management Act 20 of
1999. Section 10(2) also states that where a member of the board or
(inter alia) his or her
life partner has any direct or indirect
financial interest in any matter to be dealt with at a meeting of
the board then that member
should comply with all the provisions
under that section and section 15 (9) states that a chief executive
officer or (inter alia)
his or her life partner, may not hold any
direct or indirect financial interest in any road traffic activity
without approval or
unless such approval is open to public
inspection.
The
Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000
.
Section 1
refers
to “family responsibility” in relation to a complainant’s
spouse, partner, dependant, child or other members of his
or her
family in respect of whom the member is liable for care and support.
The Estate Duty Act 45 of 1955 as
amended by
section 3
of the
Taxation Laws Amendment Act 5 of 2001
.
Section 1
provides that a ‘spouse’ in relation to any deceased
person, includes a person who at the time of the death of such
deceased
person was the partner of such person in a same-sex or
heterosexual union which the Commissioner is satisfied is intended
to be
permanent.
172
Daniels v Campbell
NO and Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC);
2004 (7) BCLR 735
(CC).
173
Id at para 27. [The statutes] include (See
Daniels
id)
[Civil Proceedings Evidence Act 25 of 1965 (s 10A recognises
religious marriages for the purposes of the law of evidence);
Criminal Procedure Act 51 of 1977 (s 195(2) recognises religious
marriages for the purposes of the compellability of spouses as
witnesses in criminal proceedings); Pension Funds Act 24 of 1956 (s
1(b)(ii): definition of “dependant”); Special Pensions
Act 69 of
1996 (s 31(b)(ii): definition of “dependant”); Government
Employees Pension Law Proclamation 21 of 1996 (s 1(b)(ii):
definition of “dependant” and Schedule 1 item 1.19, definition
of “spouse”); Demobilisation Act 99 of 1996 (section 1(vi)(c):
definition of “dependant”); Value-Added Tax Act 89 of 1991
(Notes 6 and 7 to item 406.00 of Schedule 1 recognise religious
marriages for the purposes of tax exemptions in respect of goods
imported into South Africa); Transfer Duty Act 40 of 1949 (s 9(1)(f)
read with the definition of “spouse” in section 1 exempts from
transfer duty property inherited by the surviving spouse in
a
religious marriage); and Estate Duty Act 45 of 1955 (s 4(q) read
with the definition of “spouse” in section 1 exempts from
estate
duty property accruing to the surviving spouse in a religious
marriage).
174
Parry
The Law Relating to Cohabitation
3 ed (Sweet and
Maxwell, 1993). He was referring to the law in England, but in this
respect the South African situation has not
been much different.
175
Id at 3.
176
The Department of Population of Welfare Development, Draft White
Paper (1996) 156, as quoted in Du Plessis and Pete
Constitutional
Democracy in South Africa 1994 - 2004
(Butterworths, 2004) at
72.
177
1963 (4) SA 694
(A).
178
Id at 705.
179
South African Law Commission Report, “Review of the Law of
Succession: The Introduction of a Legitimate Portion or the Granting
of a Right to Maintenance to the Surviving Spouse” Project 22
(August 1987).
180
That is, a portion of the estate secured for the widow or other
defined members of the family that cannot be disposed of by will.
181
Above n 52 at 34. See also Keyser “Law of Persons and Family Law”
in 1990
Annual Survey of South African Law
.
182
Together with the
Intestate Succession Act 81 of 1987
.
183
Above n 45 at para 22.
184
See
Christian Education South Africa v Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC);
2000 (10) BCLR 1051
(CC).
185
See
Pretoria City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC);
1998
(3) BCLR 257
(CC) at para 35, where the argument (by myself) that at
least some degree of prejudice or disadvantage had to be shown in
order
to establish discrimination, was rejected by the majority of
the Court, which held that once there is differentiation on one of
the listed grounds, discrimination is to be presumed.
186
R v Turpin
(1989) 39 CRR 306
at 335-6. See
Harksen
above
n 18 at para 123.
187
Above n 14 at 616-7.
188
Id at 617. Goldblatt adds that the notion of separation of public
and private spheres is advanced to justify non-intervention
on the
basis that the realm of the family should be seen as private (at
616). It is argued that the law should not intervene in
this
private sphere save to protect freedom as to whether to marry or
not, with the consequences that follow, and freedom of testation.

(It was this approach that underlay the reasoning of Steyn CJ in
Glazer
(above n 50
).
Goldblatt argues, however, that
such a libertarian ideology should not be allowed to perpetuate
inequality by giving the powerful
the opportunity to remain outside
the law’s reach with regard to domestic relationships. She
contends, correctly in my view,
that the lack of legal protection
afforded to domestic partnerships increases the vulnerability of the
groups living within such
arrangements (at 611).
189
Above n 14 at 610-11.
190
Id at 611.
191
Id at 610.
192
Id
193
Above n 5.
194
Id at 420.
195
Id at 469.
196
Id at 469-70.
197
Satchwell v President of the Republic of South Africa and Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR 986
(CC).
198
Id at para 22.
199
Above n 24 at 161-2 para 7.1.9.
200
Id at 162.
201
Dawood and Another v Minister of Home Affairs and Others; Shalabi
and Another v Minister of Home Affairs and Others; Thomas and

Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 37
.
202
Section 36
(1) states the following:
“
The rights in the Bill of Rights may be limited only
in terms of law of general application to the extent that the
limitation is
reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into
account
all relevant factors, including —
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.”
203
Ex Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC).
204
Id at para 99.
205
Above n 74 at para 31.
206
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1)
BCLR 39
(CC) at para 47.
207
Du Toit and Another v Minister of Welfare and Population
Development and Others
(
Lesbian and Gay Equality Project as
Amicus Curiae)
[2002] ZACC 20
;
2003 (2) SA 198
(CC);
2002 (10) BCLR 1006
(CC) at
para 19.
208
Thus, in the
First Certification
case the question was
whether the failure of the Bill of Rights expressly to include a
right to marry and constitute a family was
inconsistent with one of
the principles binding on the Constitutional Assembly. In
Dawood
the reminder about diversity and not entrenching particular forms of
family, was expressed.
National Coalition (2)
and
Du Toit
were both concerned with same-sex couples who, in terms of the
common law definition of marriage and in terms of the Marriage Act
25 of 1961, were not able to get their unions recognised as
marriages even if they so wished. The same jurisprudential movement
away from giving legal recognition only to registered marriages was
reflected in
Daniels
, which dealt in part with the Act which
is being considered in the present matter.
209
Thus the cases concerning the rights of same-sex partners can be
distinguished from the present one on the basis that gay and lesbian
couples could not marry, even if they wished to do so. At the same
time, these cases established that difficulties of proving
that such
unions constituted permanent life partnerships, could be overcome,
and gave guidance as to how this should be done.
In
Daniels
,
on the other hand, there was no legal impediment to persons who were
Muslim from formalising their marriages under the Marriage
Act,
which they could do either by following up their religious
ceremonies with a civil one, or else by being married by an Imam
who
was recognised as a marriage officer. The exercise of choice not to
regularise the unions under the Marriage Act had to be
understood in
the context of the hegemonic exclusion from recognition of Muslim
marriages effected by the common law as applied
by the courts in the
pre-constitutional era. There was thus no reason for interpreting
the word “spouse” in the Act (as well
as in the
Intestate
Succession Act) so
as not to include them. In that matter, then,
the fact that they chose not to formalise their marriages under the
Marriage Act
did not debar them from claiming maintenance under the
Act (or a share of the estate under the
Intestate Succession Act).
I
will go no further than suggesting that the cases provide three
indications of indirect relevance to the issues before us. The
first is that, while pronouncing emphatically on the need not to
straight-jacket families in conventional forms, this Court has
expressly refrained from taking any position for or against the
recognition of heterosexual unmarried life partnerships. The second
is that in relation to questions of how to prove the existence of
permanent life partnerships, one may say that in the case of
a
non-formalised union, where there is a judicial will, there will be
a judicial way, and problems of proof will be overcome.
The third
is that a choice not to formalise one’s relationship under the
Marriage Act will not inevitably and of itself extinguish
a claim by
a survivor to maintenance under the Act (
Daniels
above n 45).
It is the context that must be decisive, and in particular the
social, political and legal factors which are said
to have produced
the discriminatory treatment resulting in unfairness.
210
Above n 70.
211
Id at paras 22 and 25.
212
The disrespect is intensified if the only question asked relates to
who contractually undertook to provide money or goods.
Contributions
are made according to ability and in response to need.
In
Satchwell
what was at issue was a potentially sizeable
claim for a survivor’s pension chargeable against the public
purse. In these circumstances
the need to establish reciprocity of
spousal-like undertakings of support was particularly strong. In
the case of a claim based
on subsistence needs against the very
estate that the survivor contributed to through years of devoted
support, the material interdependency
should be seen as part of a
broad mutual undertaking to provide the kind of reciprocal support
that binds intimate partners together.
213
Above n 20.
214
Id at para 12.
215
Roberts
Clarence Thomas and the Tough Love Crowd
(New York
University Press, 1995).
216
Above n 24 at 9 para 1.4.7.
217
Id chapter 6 at 72-158.
218
The Property (Relationships) Act 1984 (NSW) of New South Wales,
Australia provides a useful example of a broad definition coupled
with indicators for use by the court. Section 4 of the Act states
the following:
“
De
facto relationships
(1) For the purposes of this Act, a de facto
relationship is a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by
family.
(2) In determining whether two persons are in a de
facto relationship, all the circumstances of the relationship are to
be taken
into account, including such of the following matters as
may be relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or
interdependence, and any arrangements
for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the
relationship.
(3) No finding in respect of any of the matters
mentioned in subsection (2)(a)-(i), or in respect of any combination
of them, is
to be regarded as necessary for the existence of a de
facto relationship, and a court determining whether such a
relationship exists
is entitled to have regard to such matters, and
to attach such weight to any matter, as may seem appropriate to the
court in the
circumstances of the case.
(4) Except as provided by section 6, a reference in
this Act to a party to a de facto relationship includes a reference
to a person
who, whether before or after the commencement of this
subsection, was a party to such a relationship.”
219
In
National Coalition (2)
above n 79 at para 88, the
following factors were considered in order to decide whether a
same-sex life partnership is permanent:
“the respective ages of
the partners; the duration of the partnership; whether the partners
took part in a ceremony manifesting
their intention to enter into a
permanent partnership, what the nature of that ceremony was and who
attended it; how the partnership
is viewed by the relations and
friends of the partners; whether the partners share a common abode;
whether the partners own or
lease the common abode jointly; whether
and to what extent the partners share responsibility for living
expenses and the upkeep
for the joint home; whether and to what
extent one partner provides financial support for the other; whether
and to what extent
the partners have made provision for one another
in relation to medical, pension and related benefits; whether there
is a partnership
agreement and what its contents are; and whether
and to what extent the partners have made provision in their wills
for one another.”
The Court noted that “[n]one of these
considerations are indispensable for establishing a permanent
partnership.”
I would add that in the case of
heterosexual permanent partnerships proof would generally be easier.
There would be a much greater
likelihood of children, and not
having had to cope with homophobia, the partners would have been
freer to associate in public as
an intimate couple.
220
As the Canadian Law Commission points out in its report on
recognising and supporting close personal adult legal relationships:
“
People value their close personal relationships for
the quality of care and support they provide. Intimates usually
provide the
most meaningful forms of care and support, such as
sharing resources to provide food, shelter and clothing, providing
personal
services and guidance, attending to emotional needs,
volunteering information or advice, or using abilities or skills to
offer
assistance in solving problems.” Above n 31.