he legal position of a domestic partnership /permanent life partnership in South Africa
Many South Africans find themselves in a situation where they have been in a committed relationship with their respective partner, whereby they have contributed towards household and other areas of the relationship, and yet on the death of their partner they are not afforded a claim for maintenance or support.
Paixao v Road Accident Fund (640/2011) [2012] ZASCA 130 (26 September 2012)
In this case, the question arose whether a surviving partner who was in a heterosexual relationship with her deceased partner is entitled to institute an action for loss of support if the two were not married.
The first plaintiff had been in a relationship with the deceased, with whom she had lived but not married. The second plaintiff (the first plaintiff’s youngest daughter) also lived with the deceased but was not formally adopted by him.
The plaintiffs contended that during his lifetime the deceased had contractually undertaken to maintain and support them and as such, he was legally obliged to do so. The first plaintiff alleged that she should be placed in the same as a widow who was legally married to the deceased. She based her claim on an agreement between her and the deceased that he would support her and her children. However, in the Robinson v Randfontein Estates Gold Mining case, it was held that such an undertaking was motivated by motives of gratitude amounting to a binding on honour and conscience rather than a definite contractual undertaking enforceable at law.
The argument was ‘whether the deceased, whilst still alive, was under a legal duty to support the plaintiff, which duty was enforceable by the plaintiff against the defendant and whether that duty translates into a right of support which is worthy of protection by law and thus enforceable against third parties’.
The plaintiffs held that the ‘obligation to maintain and support was created by the existence of a permanent life partnership between the parties’.
The court held that the plaintiffs had failed to establish a legally binding agreement that entitled them to support and that there was no legal obligation, even when the deceased was alive, to support the plaintiffs.
Decision was taken on appeal to the Supreme Court of Appeal, which overturned the decision of the High court. The court held that a tacit agreement between parties to a heterosexual life partnership established a reciprocal duty of support worthy of protection by the law. The court held that the relationship amounted to more than a mere promise to marry and the question to be decided was whether or not the nature of the relationship between the parties gave rise to a reciprocal duty of support that the law must protect.
The court considered the obligations undertaken by the deceased as similar to an agreement and not a ‘mere promise’ to make a contract in future, which is legally enforceable.
Proving the existence of a life partnership, entailed more than showing that the parties cohabited and jointly contributed to the upkeep of the common home – its existence would have to be proved by credible evidence that the parties supported and maintained each other. Thus, in the absence of an express agreement, the parties tacitly agreed that their cohabitation included assuming reciprocal commitments – a duty to support each other.
Circumstances which strengthened and supported the plaintiffs claim was the fact that the deceased and the first appellant executed a joint will in which they made each other the sole heir of their respective estates and provided for the massing of their estates in the event of simultaneous death. The parties were also planning to marry and the reason they had not yet done so, was because they were awaiting the finalisation of the deceased’s divorce to another woman.
It seems that courts will come to a favourable finding for a partner who was in a domestic partnership if the agreement between such partners amounts to more than a mere undertaking to support each other – there must be a binding contract with the intention by both parties to be legally bound by such contract.
Good news for people that do not wish to marry or find themselves in unfortunate circumstances that prevents their marriage.
Vennessa Stroh
Candidate Legal Practitioner