Private Contract or Automatic Court Discretion? Current Trends in Legal Regulation of Permanent Life Partnerships

• Jurisdiction: South Africa
• Pages: 110-131
• Author: Amanda Barratt
• Date: 16 August 2019
• Published date: 16 August 2019
• Citation: (2015) 26 Stell LR 110

PRIVATE CONTRACT OR AUTOMATIC

COURT DISCRETION? CURRENT TRENDS IN

LEGAL REGULATION OF PERMANENT LIFE-

PARTNERSHIPS

Amanda Barratt

BA (Hons) LLB LLM PhD

Associate Professor, University of Cape Town

1 Introduction

This art icle examines the legal position of unma rried couples who live

together in monogamous, mar riage-like “per manent life-pa rtnerships”1

(dened as r elationships which are substantially “in the nat ure of marriage”

although the couple has not concluded a formal ma rriage).2 Millions of South

Africans live together i n unmar ried part nerships,3 but there is ver y little

formal legal protection for nancially vulnerable or dependant par tners.4

Heterosexual5 life -partners do not benet from the ancillar y relief available

to married spouses at divorce, and they do not qualify for benets available to

surviving s pouses when marriage is termi nated by death.

In its 2006 Repor t on dome stic partnerships, t he South African Law Reform

Commission expressed conce rn about the dear th of legal protection for life-

partners who a re economically vulner able at the end of the relationship because

of roles assumed during t he existence of the part nership.6 The Comm ission

proposed that the cour ts should have a discretion to red istribute proper ty

or order maintenance i n appropriate circu mstances. These p roposals were

included in the draf t Domestic Partne rships Bill (“the Bill”). Unfort unately,

1 The term “l ife partnersh ip” was used in Volks NO v Robin son 2005 5 BCLR 446 (CC) para 3 t o describe

a long-term mono gamous cohabitation re lationship that was su bstantially simi lar to marriage The t erm

has been used i n legislation, for example, s 21(1)(a) of the Children’s Act 38 of 2005 (“Child ren’s Act”)

gives full pa rental respon sibilities and rig hts to an unma rried father who i s living with the ch ild’s mother

in a “perma nent life part nership” when the chi ld is born

2 Domestic Violenc e Act 116 of 1998 definition: relatio nships “in the nature of ma rriage, although [the

parties] are n ot, or were not, marr ied to each other ”

3 The 2001 Census r eported a lmost 2 4 million South Af ricans liv ing together a s unmar ried domest ic

partner s (SA Law Reform Commission Do mestic Partnershi ps Project 118 Report (2006) 2 1 9) Smith

in B Smith “Th e Dissolution of a Life or Domestic Par tnership” in J Heaton (ed) The L aw of Divorce

and Dissolut ion of Life Partnership s in South Africa (2014) 389 392 citing the 2011 General Ho usehold

Surv ey, repor ts that in 2011, 3 165 497 South African s lived together “l ike husband and w ife” even though

they were not mar ried to each othe r

4 Domestic Partnerships Report; B Goldbla tt “Regulatin g Domestic Partn erships–a Nec essary Step in t he

Development of South A frican Family Law ” (2003) 120 SALJ 610 610

5 As discusse d below, same-sex life -part ners have been awa rded benef its of this kin d following

constitut ional challenge (see gene rally Gory v Kolver (S tarke Interven ing) 2007 4 SA 97 (CC))

6 Domestic Partnerships Report par a 1 2 15

110 STELL LR 2015 1

(2015) 26 Stell LR 110

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Parliament has shown no urgency i n passing this legislation – the Bill ha s

been languishi ng in Parliament (in various forms) since 2006.7

Recently, the Supreme Court of Appeal has shown i ncreased willi ngness

to award nancial benets to per manent life-pa rtners, based on new

interpretat ions of the common law.8 The court has descr ibed the relief as

contract-based, a nd has required proof that the partne rs had entered into tacit

agreements to shar e partnership property 9 or provide reciprocal support.10

Prima facie, the contract-based relief seem s materially differ ent from the

Law Reform Commission proposals set out in t he Bill. This art icle explores

the differences bet ween the contract-base d relief afforded by the Supreme

Court of Appeal and the L aw Reform Commission proposals. It arg ues that in

practice the differences may be smaller than they appear at rst sight, and that

the recent jurispr udence from the Supreme Cou rt of Appeal provides import ant

and powerful foundat ions for future life-part nership matters. The scope of the

article is limited t o monogamous heterosexual life -partnerships.11

2 Identif ying the problem– relationship-induced dependenc e

The Law Reform Commission’s Report (“the Report ”) on domestic

partnersh ips focuses on achieving fai r outcomes at the term ination of long-

term life-par tnerships. T he Report expresses pa rticular conce rn for those

who have become nancially dependent on their pa rtners and are thus

economically vulne rable when the partne rs separate.12 Relation ship-ind uced

dependence might ar ise if one partner a ssumes the role of primar y caregiver

and homemaker while the other a ssumes the role of primar y breadwin ner.13

Assumption of the prima ry caregiver role frequently has a negative impact on

the caregiver’s ability to earn money and f urther her or h is career. Partne rs

who assume stay-at-home caretak ing roles are often una ble to accumulate

7 There was a sec tion on domestic part nerships in the fi rst Draft Civil Union Bi ll in GG 29237 of 21-09-

2006 The Commission for Gen der Equalit y has made sub missions urg ing promulgat ion of the Bill

See B Smith “Th e Interplay b etween Regist ered and Unr egistered D omestic Par tnership s under the

Draft Dome stic Partners hips Bill, 2008 and th e Potential Role of the (Context ualised) Putat ive Marriage

Doctrin e” (2011) 128 SALJ 560 563 The cur rent draft bil l appears in GN 36 in GG 30 663 of 14-01-2008;

Domestic Par tnerships Bill (dr aft) GN 36 in GG 30663 of 14 Januar y 2008

8 Butters v Mnco ra 2012 4 SA 1 (SCA); Paixão v Road Accident Fund 2012 6 SA 377 (SCA)

9 Butters v Mnco ra 2012 4 SA 1 (SCA)

10 Paixão v Road Acc ident Fund 2012 6 SA 377 (SCA)

11 Polygamous life -partnersh ips raise difficu lt questions, which ar e beyond the scope of this pa per Before

commenceme nt of the Civil Union Act 17 of 2006, monogamous s ame-sex life-part ners were afforded

judicial relief on t he grounds that failu re to treat such partne rships in the same way as ma rriages was

discrim inatory on t he intersect ing grounds of m arriage and s exual orient ation See Nat ional Coalition f or

Gay and Lesbi an Equality v Minis ter of Home Affairs 20 00 2 SA 1 (CC) para 40; Satchw ell v President of

the Republic of S outh Africa 2002 6 SA 1 (CC ); Du Plessis v Roa d Accident Fund 2004 1 SA 359 (SCA)

In Gory v Kolver (St arke Interve ning) 2007 4 SA 97 (CC) par a 25 the court held t hat benefits wh ich same-

sex life part ners had gaine d through cour t precedent would re main until Parl iament legislated ot herwise

Parliament ha s not yet done so, with the re sult that unma rried same -sex life-par tners enjoy mar riage-like

benefits th at are not available to un married het erosexual par tners

12 See for example Domestic Partner ships Report paras 1 2 15 and 2 2 8

13 I Ellman “T he Theory of Alimo ny” (1989) 77 California LR 1 40-52

LEGAL REGULATION OF PERMANENT LIFE-PARTNERSHIPS 111

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