A woman has, for now, failed in her bid to rewrite the law so unmarried partners can claim maintenance when relationships disintegrate after years of cohabitation.
She argued before a full bench of the Cape Town high court that the lack of recognition of this legal duty under common law constituted discrimination on the grounds of marital status and gender.
The woman, who cannot be named to protect the identity of her minor children, lived with her wealthy partner for nine years. They have three children and she sued him for maintenance.
She sought R56,000 monthly, with effect from May 1 2022, and payment of medical and car expenses. She also sought an order, as part of the maintenance claim, compelling her erstwhile partner to pay R1m as an “initial contribution towards her costs” in the litigation.
She argued that she was in a “permanent life partnership ... which resulted in a reciprocal duty of support”. She told the court she had no assets or income after the relationship soured.
She said her former partner employed two domestic workers to “assist me with household tasks and taking care of the baby”. She and the children were completely dependent and he paid between R100,000 and R150,000 a month towards “household expenses, personal maintenance and maintenance of the minor children”, and “I took up the role of ‘wife’ and managed the joint household”.
However, the man denied owing her “any duty of support and refuses to contribute towards her maintenance”.
She asked the court to develop common law to “recognise the existence of a duty of support between partners in unmarried, opposite-sex, permanent life partnerships” so they can “claim maintenance from one another”.
The Women’s Legal Centre was admitted as a friend of the court, which on Friday dismissed the matter, saying she “already has a common law remedy and her entitlement or otherwise to maintenance rests squarely on that remedy”. Judges Judith Cloete and Hayley Slingers concurred.
In a dissenting judgment, judge Derek Wille said he “would have granted a different order”.
“This is primarily because, in my respectful view, this is a matter mainly consisting of constitutional ingredients and revolves around the granting only of interim financial relief,” wrote Wille.
Wille said the woman’s erstwhile partner had paid her R100,000 monthly for household expenses and maintenance.
“The relationship between the parties came to an end just more than a year ago. The [woman] feared terminating their relationship as [the man] threatened that she would be destitute if she left him,” the judgment reads.
“Following the termination of the relationship, [the man] has ... drastically reduced the monthly amount paid to [her] ... threatened to cancel the lease in respect of the former family home, and ... launched an application threatening to take the children away from [her].”
Wille said he would have ordered: “That it is with this declared that partners, in life partnerships in which the partners had, during the existence of the life partnership, undertaken ... reciprocal duties of support, alternatively factually reciprocally supported each other, are entitled to claim interim financial relief from each other, following upon the termination of the life partnership.”
He said he would have ordered the man to pay R45,000 monthly towards the woman’s maintenance, which would increase annually.
The woman’s lawyer, Bertus Preller, said they intended to apply for leave to appeal to the Constitutional Court.
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