Unmarried women in SA run the risk of being left destitute when relationships with their partners disintegrate after years of cohabitation.
When relations turn sour, life partners are not required to support their ex under existing law. But the plight of a Western Cape mother may soon change their predicament.
On Friday a full bench of the Cape Town high court will hear the woman’s case which seeks to change the law, compelling life partners to maintain their ex-partners.
The mother of three explains in a 67-page affidavit, almost ending up on the brink of being homeless when the relationship with the father of her children collapsed after almost a decade of cohabitation. She met the wealthy businessman in 2009. They lived together from 2013 until 2022.
The romance started like a fairy-tale — he swept her off her feet after they met at a fitness centre. What stopped them from getting married was his demand she sign an ante-nuptial agreement, she said in the affidavit. She was retrenched after giving birth to their first child, and he “suggested that I refrain from applying for other positions and rather become a homemaker and stay-at-home mother”.
She said he employed two domestic workers to “assist me with household tasks and taking care of the baby”. She and her children became 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”.
“Due to his work commitments, my ex-partner was an absent father and most of the child-rearing responsibilities fell on me,” the affidavit reads.
“However, I understood that his employment and business dealings are what afforded the minor children and me the privilege of living a life of luxury and accepted that his regular absence was part and parcel of that deal.”
They got engaged while living together and most “of our friends, family and acquaintances believed our relationship to be a marriage or a permanent life-partnership, akin to a marriage”, the affidavit reads.
“We also referred to each other as ‘husband’ and ‘wife’, both in private and in public, and regarded each other as such.”
She said he referred to their partnership as “our marriage” in an affidavit filed in litigation in another court and “laughably, later ‘corrected’ this statement in a supplementary affidavit’”.
She said her ex-partner told her they could only formalise their marriage on “condition that I sign an ante-nuptial contract in terms of which community of property and the accrual system could be excluded”.
“I am a layperson, and I was under the impression that I would be worse off signing the contract and legalising the marriage, then we maintained the status quo of our life partnership in which we had undertaken reciprocal duties of support,” the affidavit reads. “Accordingly, I rejected the proposal to formalise our marriage on the terms proposed by my ex-partner, and we continued our life partnership as it was.”
She said arguments ensued over his demand that she and the children adopt his surname, but “I told him, as I had on multiple occasions previously, that I would only do so once we were legally married”. The man moved out of the house when arguments became frequent, and he “would tell me that if I left him, I will be left destitute and end up on the street”.
“After the breakdown in the relationship ... [my ex-partner] unilaterally reduced the amount of maintenance paid to me from about R112,000 per month to R22,500 per month,” the affidavit reads.
“I contend that the relationship which endured with my ex-partner constituted a permanent opposite-sex life-partnership in which he and I had undertaken reciprocal duties of support, to each other, the existence of which is established in the factors above. I further contend that, on account of the duty of support that existed during the subsistence of the life partnership, I am entitled, in terms of common law, to claim maintenance from him after the termination of our life partnership.”
The woman also seeks to have the common law changed in SA to make provision for the maintenance of life partners.
“Alternatively, should this honourable court find that common law does not entitle me to such a claim, I contend that common law should be developed in a manner that promotes the spirit, purport and objects of the Bill of Rights by recognising my entitlement to claim maintenance from my ex-partner, after the termination of our life-partnership and insofar as I am not able to provide therefor from my own means and earnings.”
However, the man had a different view of the situation in his affidavit filed in court.
“I deny that we were life partners or that we undertook reciprocal duties to support one another that would extend beyond the termination of our relationship,” he said.
“She refused to marry me and personally viewed our relationship as a ‘business arrangement’. There was certainly no consensus between us as to the existence of any such reciprocal duties.”
He also sought to shoot down her common law argument.
“It is also not appropriate for the court to engage in the development of the common law in circumstances where it does not have the full conspectus of the facts before it, properly tested and proved. I am advised that the Constitutional Court has held, on more than one occasion, that where the factual situation is complex and the legal position or policy implications uncertain, the interests of justice require that the development of the common law should be considered only after hearing evidence, and the decision given in light of all the circumstances of the case,” reads his affidavit.
“This court should, therefore, decline to entertain the development of the common law in this application.”
The woman’s lawyer Bertus Preller described the matter as a “landmark case”.
“Many partners, predominantly women, are left destitute and without legal recourse when their life-partnership (common law marriage) terminates, or their partners cease to maintain them,” he said.
“This issue affects a substantial number of South Africans, particularly vulnerable women, and some of these women find themselves in permanent life partnerships not out of choice. The reality is that in 2016, 3.2-million South Africans were cohabiting outside marriage, and that number was reported to be increasing. Thus, we find a substantial number of families within this category.”
The Women’s Legal Centre has applied to be admitted as a friend of the court.
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