The link between the assumption of support between life partners and the recognition and protection of life partnerships in South Africa

Abstract

South African family law does not recognise a “law of life partnerships” and accords only piecemeal statutory and judicial recognition to life partnerships. While legislation to formally recognise life partnerships have been proposed, development of the law in this regard has thus far been driven almost exclusively by judicial precedent. The judiciary has adopted two different approaches as far as it relates to the role of a duty of support in recognising life partnerships and in determining whether life partners could qualify for spousal benefits. Under the first approach the courts derive a duty of support from the fact that the partners lived together with some form of permanence. The duty of support is therefore not a prerequisite for the existence of a life partnership but flows from the life partnership. Under the second approach a duty of support cannot be automatically inferred even though the partners lived together with some form of permanence. An undertaking of a duty of support between the partners is a prerequisite for the recognition and benefits of a life partnership. The legislature has proposed legislative proposals towards the recognition of life partnerships. The Domestic Partnerships Bill and the Single Marriage Statute proposed provision for the registration of life partnerships. Under the Domestic Partnerships Bill, the assumption of a duty of support is one of a number of factors for the recognition of a life partnership and therefore not required qualifying prerequisite for the recognition and protection of life partnerships. Under the Single Marriage Statute, the parties must have cohabited in a life partnership and have assumed a permanent responsibility for supporting each other. A permanent responsibility for supporting each other is made a prerequisite for recognition and protection of life partnerships. Although the mentioned proposed legislation provides for the recognition of life partnerships the legislature is advancing the Marriage Bill that provides recognition to all forms of marriage under a single Act. The Marriage Bill does not provide for life partnerships. Life partners will therefore have to rely on piecemeal recognition by the courts for the foreseeable future. The position in South Africa is compared to legislation in British Columbia in Canada and the Republic of Ireland. Both jurisdictions provide for the recognition of life partnerships. In British Columbia partners must cohabit for a specific time period in a marriage-like relationship. In Ireland an intimate and committed relationship is required with a prescribed time period and financial dependence. The jurisdictions both follow an ascription model. It is concluded that an ascription model similar to that of British Columbia would provide the most extensive protection for life partners in South Africa. The duty of support should not be a prerequisite for recognition and protection of a life partnership but rather a consequence of such a relationship.