Domestic partnerships and marital status discrimination

• Jurisdiction: South Africa
• Pages: 108-130
• Author: Craig Lind
• Citation: 2005 Acta Juridica 108
• Date: 15 August 2019
• Published date: 15 August 2019

Domestic partnerships and marital

status discrimination

CRAIG LIND*

University of Sussex

I INTRODUCTION

In a judgment handed down in February 2005, the South African

Constitutional Court decided not to involve itself in the transformation

of the law regulating cohabitation.

1

It opted instead to leave the matter to

the executive and to Parliament to resolve. The Court seems to have

been daunted by the scale of the problems presented by this endemic

social phenomenon.

2

Its response was to opt for apathy. This reluctance

to involve itself in a pressing law reform problem is regrettable.

At some point the Court will have to pass judgment on the permissible

constitutional parameters of legislative reform in this area.

3

It is a pity that

it did not take this opportunity to set out those parameters. It could have

aided government in its formulation of the structure of reform, and

provided real solutions to those trapped in the inequities that cohabita-

tion creates in the period leading up to the f‌inal reform that is adopted by

government.

The failure of the majority judgment to provide solutions highlights

the need for ref‌lection once again on the nature of the problems that

social change in family life has created, and to consider the role of the

Constitution and the judiciary in resolving those problems. I will,

therefore, try to do two things in this article. I will focus on the specif‌ic

facts in Volks v Robinson

4

and offer a critique of the decisions that the

judges in the Constitutional Court handed down in that case. But I will

also generalise the decision to the trends in family law on which the case

* BCom LLB (Witwatersrand) LLM (London); Senior Lecturer, Sussex Law School,

University of Sussex.

1

In this article ‘cohabitation’ refers to relationships between heterosexual partners, as this

was the form of cohabitation under consideration by the Constitutional Court.

2

The 2001 Census estimated that nearly 2.4 million individuals were living in domestic

partnerships (almost doubling since 1996): Statistics SA 2001 Census http://www.statssa.gov.za/

census 2001/.

3

The government is in the process of planning a reform of this area of law. See Volks v

Robinson 2005 (5) BCLR 446 (CC) Skweyiya J at para 29 and also South African Law Reform

Commission (SALRC) Discussion Paper 104 Project 118 Domestic Partnerships (2003) and

SALRC Report Domestic Partnerships (2003). For consideration of reform in England and

Wales (which is also having great diff‌iculty in resolving the problems of unmarried

cohabitation) see Law Commission of England and Wales Sharing Homes: A Discussion Paper

(2002) (LC278) (www.lawcom.gov.uk) and Family Law Committee of the Law Society

Cohabitation: Proposals for reform of the Law (September 1999) (www.lawsociety.org.uk).

4

2005 (5) BCLR 446 (CC). Mrs Robinson had won her claim in the Cape High Court:

Robinson v Volks2004 (6) SA 288 (C).

108

2005 Acta Juridica 108

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is based. In doing so, I hope to offer some thoughts on the way in which I

believe government and the courts should approach matters dealing with

cohabitation in the future.

The overarching approach that I will adopt in discussing the problems

that were encapsulated in this case is the need to achieve a just resolution

of the problems unmarried partners face. It is important to spell out the

nature of the claim to justice that is being promoted. Solutions to the

problems of cohabitants must, clearly, be even handed; they must, present

a solution which is fair to both partners. This obviously means that the

personal circumstances of both individuals in a cohabiting relationship

should feature in the resolution of their cohabitation dispute. It also

means that the social context in which their relationship is lived must

feature (prominently, I would argue) in the just resolution of their

disputes. The public face of family life and the currents of prejudice

which exist in the social world and which envelop real families must be

acknowledged and dealt with if any resolution is to be just to the parties

to cohabitation disputes. My plea is especially for gendered power

relations in society to be taken seriously and to be addressed appropriately

in providing solutions for cohabitants. Policy makers as well as judges

have a responsibility to adopt a broad perspective on the nature and

sources of injustice that arise when cohabitation relationships end.

5

And

judges, in particular, should not balk at offering limited solutions to

problems which appear to be dwarfed by the greater injustices perpe-

trated on the parties by the social context in which the solution is

offered.

6

A partial solution is, it is submitted, almost always better than no

solution at all.

7

5

This approach is endorsed in the dissenting opinion of Sachs J in Volksv Robinson: see para

146 – 153. It is also an approach I would recommend when other family disputes are before the

courts (so, for example, the material consequences of divorce should also be informed by the

material world in which divorcing individuals will exist; see, for example, J Carbone

‘Feminism, Gender and the Consequences of Divorce’ in M Freeman Divorce: Where Next

(1996) at p 181).

6

See, for example, the concerns of Skweyiya J at paras 63 – 68.

7

It is interesting to note that in Volks none of the judges f‌inds that Mrs Robinson did, in

fact, need more support than Mr Shandling had provided for her in his will (see, for example,

the dissenting judgment of Mokgoro and O’Regan JJ para 142 and clause 1 of the proposed

order in para 145, in which they f‌ind that Mrs Robinson had been left an equitable share of Mr

Shandling’s estate: R140 000 out of an estate valued at just over R400 000). It is, perhaps, for

this reason that the majority of the Court was so comfortable refusing her claim. See Skweyiya

J’s expression of sympathy (in para 59) for vulnerable women left destitute by their

unconscionable unmarried partners. If the evidence in Volks had been of unconscionable

conduct by Mr Shandling it is interesting to speculate about what Skweyiya J’s decision might

have been. It is regrettable, however, that the basis upon which the majority chose to refuse a

remedy in this case was that the statute in question did not offend the constitutional principle of

equality.

109DOMESTIC PARTNERSHIPS AND MARITAL STATUS DISCRIMINATION

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