.... -
': , #
(·"lW ..,......1.... ......... ......,_Lj'\t; "1 .GC tt:H
ft,Er" ):,' " , D.(.jH.... .• University Free Stateu
. "1111111 11111 '1'" 11111111111111111111111111111'1'" 1111111111 11111 1111111111111 .
34300004430348
.._...:__. "·'r, W '~L •• ';'~"'~ Universiteit Vrystaat
.~ n AUG 2Q;0
L...-----"'--.------
THE DEVELOPMENT OF SOUTH AFRICAN MATRIMONIAL
LAW WITH SPECIFIC REFERENCE TO THE NEED FOR AND
APPLICATION OF A DOMESTIC PARTNERSHIP RUBRIC
submitted in partial fulfilment of the requirements for the degree
DOCTOR LEGUM
at the
Faculty of Law
Department of Private Law
University of the Free State
Bloemfontein
Republic of South Africa
by
BRADLEY SHAUN SMITH
PROMOTER: THE HONOURABLE MR JUSTICE FDJ BRAND
Judge of the Supreme Court of Appeal and Extraordinary
Professor of Private Law, University of the Free State
CO-PROMOTER: PROF DR JA ROBINSON
Professor of Law, North-West University
NOVEMBER 2009
For my grandfather,
William Godfrey Holt Meintjes (1919 - 1985)
who stimulated my interest in all things academic
ACKNOWLEDGEMENTS
• To my promoters, Mr Justice Fritz Brand and Professor Robbie Robinson-
thank you for your invaluable guidance and support: It was truly a privilege to
be able to undertake t study under your supervision.
• To my colleagues the Faculty of Law at the University of the Free State,
thank you for Thanks especially to
Professors Henning, Loot Pretorius,
vma!iWï1an Deventer and Shaun de Freitas, and
Mould and Jaco de Bruin. A
Tonder, Information Officer at
• and Nicole, and the
•
• A final word to a Brothers' College in
Welkom and Grey College Bloemfontein: To Mesdames Laura James, and
Heather Rudolph; Messrs Gary Cimma, Tony White, Pierre Hugo and Tommie
Cronjé; and Brothers Terry Dowling and JC O'Neill: Thank you for being a
source of inspiration over the years. I hope that this work in some way bears
testimony to your individual influences on my life.
In Deo Sapientiae Lux
INDEX
Page
" ~ART 1:.>~:BACKGROUND"
I CHAPTER 1: INTRODUCTION
1, CONTEXT
2. STRUCTURE OF THIS STUDY 5
3. METHOD AND SCOPE OF THIS STUDY 5
CHAPTER 2: LAYING THE FOUNDATION: THE HISTORICAL DEVELOPMENT OF
MATRIMONIAL LAW AND A JUXTAPOSITION OF MARRIAGE IN PRE-1994
SOUTH AFRICA WITH DEVELOPMENTS IN THE WESTERN LEGAL
TRADITION 7
1 . INTRODUCTION 7
2. MARRIAGE IN EARLY TIMES 8
2.1 The Roman law marriage (iustum matrimonium): Marriage as a matter of social
significance 8
2.2 Germanic law (from that which is recorded until the 5th century AD) 16
3. THE CHANGING FACE OF MARRIAGE: A GLOBAL PHENOMENON CATEGORISED
BY A VACILLATION BETWEEN STATE AND RELIGIOUS CONTROL 18
3.1 The Roman Empire 18
3.2 The advent of the Frankish empire (5th to the 9th century AD) 20
ii
3.3 The Middle Ages: The Roman Catholic Church transforms marriage into a
sacrament 23
3.4 The Reformation and one of its consequences: Roman-Dutch law 29
3.4.1 The birth of Roman-Dutch law 30
3.4.2 Religious upheavals intervene: The influence of Protestantism and
the resultant Lutheran and Calvinist models of marriage 33
3.4.2.1 The Lutheran social model 34
3.4.2.2 The Calvinist covenantal model 37
3.4.2.3 The Anglican commonwealth tradition 40
3.4.2.3.1 Introduction 41
3.4.2.3.2 The commonwealth tradition 45
3.4.2.3.3 The Stuart dynasty: Volatility and
absolutism 47
3.4.2.3.4 A remodelling of the commonwealth model 51
3.4.3 Moving ahead: Marriage as a contract in consequence of the Age of
Enlightenment 52
3.4.3.1 Reforms occasioned by the Enlightenment contractarian
model 57
3.4.3.1.1 The "first wave": Gender equality and the
focus on the family 57
3.4.3.1.2 The Enlightenment model pressed further 58
3.4.4 Quaere: Same-sex marriage-a 21st century phenomenon? 61
3.4.5 Preliminary conclusions 65
3.4.6 Roman-Dutch law and marriage 69
3.4.7 South African law 76
3.4.7.1 The Dutch East India Company 76
3.4.7.2 The law of marriage in South Africa: 1652 - 1838 91
3.4.7.3 The influence of Christian Nationalism 99
3.4.7.4 The winds of change prior to 1994 107
3.4.7.5 Preliminary conclusions 111
4. ASCERTAINING THE ESSENCE OF THE PRE-1994 CIVIL MARRIAGE IN SOUTH
AFRICA-THE CONSORTIUM OMNIS VITAE 113
iii
5. CONCLUSION 118
CHAPTER 3: ASSESSING THE NEED FOR AND FORMAT OF A DOMESTIC
PARTNERSHIP RUBRIC AND ATTENDANT LEGISLATION IN SOUTH
AFRICA: THE DEMOCRATIC CONSTITUTIONAL DISPENSATION AND ITS
BROADENING EFFECT ON MARRIAGE AND THE CONCEPT OF
CONSORTIUM OMNIS VITAE 123
1. INTRODUCTION 123
2. EXPANDING MARRIAGE TO INCLUDE CUSTOMARY MARRIAGES 125
3. GAY AND LESBIAN LIFE PARTNERS PAVE THE WAY TOWARDS SAME-SEX
MARRIAGE 126
4. "PURELY RELIGIOUS 'MARRIAGES'" THAT DO NOT COMPLY WITH SOUTH
AFRICAN MARRIAGE LEGISLATION 134
5. CONCLUSION 140
I CHAPTER 4: TERMINOLOGY, PARAMETERS AND CRITERIA 147
1. INTRODUCTION TO PART 2 147
2. TERMINOLOGY 148
2.1 Terms that are acceptable in a South African context to describe persons
who are involved in non formalised permanent marriage-like relationships 149
2.1.1 The terms "(extramarital) cohabitation" and "cohabitation" 149
iv
2.1.2 The term "life partnership" 150
2.1.2.1 Life partnership in the wide and narrow senses 151
2.1.2.1.1 Life partnership in the wide sense 151
2.1.2.1.2 Life partnership in the narrow sense 152
2.1.2.1.3 The reason for distinguishing between
life partnerships in the wide and narrow
senses 153
2.1.2.2 Parameters of and criteria for life partnerships in the
narrow sense 154
2.1.3 The term "domestic partnership" 160
2.2 Inaccurate and unacceptable terms 161
2.2.1 The so-called "common-law marriage" 161
2.2.1.1 South African law currently recognises civil marriages,
marriages under the Civil Union Act 17 of 2006 and
customary marriages 161
2.2.1.2 The term creates unnecessary confusion between the
parties involved in as far as their respective legal rights
and obligations are concerned 164
2.2.1.3 "Common-law marriage" from the parties' perspective 165
2.2.1.4 Case law 165
2.2.1.5 Conclusion 174
2.2.2 The term "concubinage" 174
2.2.3 The terms "de facto marriage" and "putative marriage" 175
2.3 Conclusion-the term "life partnership" 182
3. CONCLUSION 183
CHAPTER 5: THE JUDICIAL RECOGNITION OF LIFE PARTNERSHIPS IN SOUTH
AFRICA 185
1. INTRODUCTION 185
2. RECOGNITION BY THE JUDICIARY: LAYING THE FOUNDATION 193
v
3. TRACING THE RECOGNITION OF TWO FUNDAMENTAL CHARACTERISTICS OF
MARRIAGE WITHIN THE CONTEXT OF NON-FORMALISED INTERPERSONAL
RELATIONSHIPS: THE RECIPROCAL DUTY OF SUPPORT AND CONSORTIUM
OMNIS VITAE 204
3.1 Introd uction 204
3.2 Breaking the mould: Recognising a reciprocal duty of support in same-sex
life partnerships prior to the validation of same-sex marriage 206
3.2.1 The Langemaat case revisited 206
3.2.2 The Satchwell judgments 212
3.2.3 Further implications of the contractual duty of support: The Du Plessis
case 219
3.2.4 Conclusion 224
3.3 Heterosexual life partners and the reciprocal duty of support-Volks NO
v Robinson 2005 (5) BCLR 446 (CC) 225
3.3.1 A critique of the approach in Volks NO v Robinson 232
3.3.1.1 Critical aspect 1: The "choice argument" and the broader
"family law-based" approach 233
3.3.1.2 Critical aspect 2: The value of the existence of a factual
duty of support 243
3.3.1.3 Critical aspect 3: The anomaly surrounding the perceived
curative effect of the extension sought 260
3.3.1.4 Critical aspect 4: The true ambit of the term "permanent
life partnership" 265
3.3.2 Conclusions and suggestions in the light of the critical aspects highlighted
in respect of Volks 271
3.3.2.1 The contractual duty of support 271
3.3.2.2 The "choice argument" and the reciprocal duty of
support: Developing the "contextualised choice model" 272
3.3.2.3 Terminology 275
3.3.2.4 The positive law position 275
3.4 Further developments pertaining to the existence and role of a reciprocal duty of
support in homosexual relationships 277
3.4.1 The role of the reciprocal duty of support within the context of a claim
for intestate succession 277
vi
3.4.1.1 Introduction: The Gory case 277
3.4.1.1.1 The Constitutional Court's finding regarding
the (un)constitutionality of the Act 280
3.4.1.1.2 Retrospective impact of relief 281
3.4.1.1.3 The impact of the validation of same-sex
marriage 282
3.4.1.1.4 The order 284
3.4.1.2 The anomaly created by the Gory case 285
3.4.1.3 Conclusion 300
3.4.2 The relevance of a (reciprocal?) duty of support within the context of
insurance agreements 301
3.4.2.1 The facts 301
3.4.2.2 Observations 303
3.5 Some recognition for heterosexual life partners: The Pension Funds Act 24
of 1956 305
3.6 Conclusions regarding the reciprocal duty of support in non-formalised life
partnerships 307
3.7 Consortium omnis vitae 309
4. MISCELLANEOUS DEVELOPMENTS RELATING TO THE POSITION OF LESBIAN
COUPLES OCCASIONED BY THE SOUTH AFRICAN COURTS 315
4.1 The ability of lesbian permanent life partners to adopt children jointly 315
4.2 The position of a lesbian life partner whose partner has given birth to a child
conceived by artificial insemination 324
4.2.1 Introduction 324
4.2.2 Subsequent developments 327
4.2.2.1 The constitutionality of the Act and the so-called "choice
argument" 330
4.2.2.2 Practical consequences of section 40 of the Act: An
analysis of the Act's differential treatment of heterosexual
married and unmarried couples; male and female same-sex
couples and relationships involving persons who have legally
altered their sex description 335
4.3 Conclusions regarding adoption and artificial fertilisation 353
vii
4.3.1 Conclusion: The "choice argument" 353
4.3.2 Conclusion regarding adoption within the context of life partnerships 353
4.3.3 Conclusions regarding artificial fertilisation and life partners 353
5. CONCLUSION 358
CHAPTER 6: PROTECTION PROVIDED BY THE LAW OF OBLIGATIONS AND
DEVELOPMENTS OCCASIONED BY THE LEGISLATURE 361
1. INTRODUCTION 361
2. PROTECTION PROVIDED BY THE LAW OF OBLIGATIONS 362
2.1 The law of contract 362
2.1.1 The "cohabitation contract" 362
2.1.1.1 Enforceability 362
2.1.1.2 Contents of the agreement 365
2.1.2 The application of the universal partnership in the context of family law 367
2.1.2.1 Hypothetical recognition 371
2.1.2.2 Lack of practical recognition: Problems posed by the
universal partnership 372
2.1.2.3 Conclusion 381
2.2 Other protection 382
2.2.1 Unjustified enrichment 382
2.2.2 Proprietary estoppel (also known as estoppel by encouragement or
estoppel by acquiescence) 384
2.2.3 The constructive trust 388
2.2.4 Will 390
2.3 Conclusion 390
2.4 An interesting (and uncertain) situation: The application of the putative spouse
doctrine to life partnerships in the wide sense and to bigamous marriages 391
2.4.1 Comparative analysis 392
2.4.1.1 The United States of America 393
2.4.1.1.1 California 393
viii
2.4.1.1.2 Texas and Illinois 397
2.4.1.1.3 Louisiana 403
2.4.1.1.4 States that have enacted legislation based
on the Uniform Marriage and Divorce Act,
1973 404
2.4.1.2 France 405
2.4.2 South African case law 407
2.4.2.1 Problematic aspects of the Zulu case 408
2.4.2.2 Conclusion 413
2.4.3 Developing the common law: A hypothetical approach towards solving
future problems in cases similar to Zulu 414
2.4.3.1 Introduction 414
2.4.3.2 A summary of comparative law 415
2.4.3.3 Conclusions based on comparative analysis 418
2.4.3.3.1 General principle 418
2.4.3.3.2 Additional factors 419
2.4.3.4 A suggested solution 427
2.4.3.4.1 Developing the common law 427
2.4.3.4.2 An alternative to developing the common
law: The principles of South African matri-
monial property law 433
2.4.3.4.3 Conclusion 441
2.5 Conclusion: Common law protection 442
3. RECOGNITION OF LIFE PARTNERSHIPS BY THE SOUTH AFRICAN LEGIS-
LATURE 443
3.1 Introduction 443
3.2 An overview of the legislative enactments that have taken place since 1994 that
deal with life partnerships 445
3.2.1 Maintenance legislation 445
3.2.2 Domestic violence and sexual offences 445
3.2.3 Children 446
3.2.4 Labour and social security law 446
3.2.5 Medical schemes 449
ix
3.2.6 Tax law 450
3.2.7 Insolvency 450
3.2.8 Membership of Boards or appointment as Commissioners in terms of
specific legislation 452
3.2.9 Miscellaneous 456
3.2.10 Developments that are expected in future 457
4. CONCLUSION 457
CHAPTER 7: THE MODIFICATION AND CALIBRATION OF THE DRAFT DOMESTIC
PARTNERSHIPS BILL, 2008 IN ACCORDANCE WITH THE BEHESTS
OF THE DOMESTIC PARTNERSHIP RUBRIC 461
1. INTRODUCTION TO PART 3 OF THIS STUDY 461
2. BACKGROUND TO THE DRAFT DOMESTIC PARTNERSHIPS BILL, 2008 462
3. ASCERTAINING THE AMBIT OF DOMESTIC PARTNERSHIPS UNDER THE BILL
465
3.1 The preamble to the Bill 465
3.2 Ascertaining the ambit of persons who are covered by the Bill in greater
detail: Age, prohibited degrees and so-called "care partners" 467
3.3 Conclusion 475
4. THE INTERRELATIONSHIP BETWEEN THE BILL AND THE CURRENT LEGAL
POSITION PERTAINING TO LIFE PARTNERSHIPS 476
4.1 Introduction 476
4.2 Ascertaining the impact of the 2008 Bill on the current legal position 477
4.2.1 Domestic partnerships vis-a-vis marriage 477
4.2.2 Domestic partnerships vis-a-vis pre-Civil Union Act case law 477
x
4.2.2.1 The registered domestic partnership 477
4.2.2.2 The unregistered domestic partnership 479
4.2.2.2.1 Should these discrepancies be rectified? 481
4.2.2.2.2 Conclusion 489
4.2.3 Domestic partnerships vis-a-vis pre- and post Civil Union Act legislation 489
5. ASSESSING THE NEED FOR THE MODIFICATION OF THE FORMAL AND
SUBSTANTIVE REQUIREMENTS FOR ENTERING INTO AND RECOGNITION OF
DOMESTIC PARTNERSHIPS AND INVESTIGATING THE ROLE (IF ANY) TO BE
PLAYED BYTHE PUTATIVE SPOUSE DOCTRINE 490
5.1 Can the putative spouse doctrine in principle be applied to relationships other than
marriage? 490
5.1.1 Introduction 490
5.1.2 Could the reasoning in Ellis apply in South Africa? 492
5.1.3 Preliminary conclusion 496
5.2 Applying these principles to domestic partnerships under the Domestic Partner-
ships Bill, 2008 496
5.2.1 Grounds that do not (presently) nullify the domestic partnership ab initio
under the Bill 496
5.2.1.1 Non-registration / defective registration of a domestic
partnership 496
5.2.1.2 Prohibited degrees of affinity or consanguinity 499
5.2.2 Grounds that do lead to nullity under the Bill 502
5.2.2.1 "Polygamous" or "bigamous" domestic partnerships 502
5.2.2.2 Age 514
5.2.3 Miscellaneous modifications required for entering into a registered
domestic partnership 514
5.2.3.1 Witnesses 515
5.2.3.2 Incompetent registration officer 517
5.2.3.3 Prescribed documentation 517
5.3 Conclusion 518
6. THE RECOGNITION OF THE CONCEPT OF CONSORTIUM OMNIS VITAE WITHIN
THE CONTEXT OF THE (REGISTERED) DOMESTIC PARTNERSHIP 519
xi
6.1 Introduction 519
6.2 The current legal position pertaining to consortium and life partnerships 520
6.3 Searching for common ground between marriage and the domestic
partnership 520
6.3.1 The point of departure 520
6.3.2 Assessing the similarity between marriage and registered domestic
partnerships 522
6.3.2.1 Similarities between the consequences of marriage and
those of the registered domestic partnership that are
occasioned by the Domestic Partnerships Bill, 2008 522
6.3.2.2 A few of the more significant differences that exist
between marriages and registered domestic partnerships
in terms of the 2008 Bill 525
6.3.2.3 Conclusion 529
7. THE PROPERTY REGIME OF THE REGISTERED DOMESTIC PARTNERSHIP AND
MATTERS RELATED THERETO 531
7.1 Introduction 531
7.2 The policy considerations that should in terms of the rubric underpin the
framework governing the proprietary consequences of the registered
domestic partnership 532
7.2.1 The proposals in the 2003 Discussion Paper 534
7.2.2 The proposals in the 2006 Report 535
7.2.2.1 Introduction 535
7.2.2.2 The provisions of the 2008 Bill 536
7.2.2.2.1 Deviation from the default regime 537
7.2.2.2.2 Deviation in principle, but deviation in
practice? 538
7.2.2.2.3 Preliminary conclusion 558
7.3 Application of these findings 559
7.3.1 General 559
7.3.2 Notarial execution 559
7.3.3 Registration of domestic partnership agreements and witnessing
requirement 561
xii
7.3.4 The supervisory role of the Courts 565
7.3.4.1 Alteration of the property regime and division of joint
property 565
7.3.4.2 Extension of matrimonial property law to registered
domestic partnerships-the "contextualised choice
model" revisited 567
7.3.4.3 Conclusion 583
7.4 Conclusion 588
8. THE LEGAL CONSEQUENCES OF REGISTERED DOMESTIC PARTNERSHIPS
589
9. THE TERMINATION OF THE REGISTERED DOMESTIC PARTNERSHIP AND
MATTERS RELATED THERETO 591
9.1 Introd uction 591
9.2 Circumstances leading to termination 591
9.2.1 Termination by mutual agreement 591
9.2.1.1 Discretion to enter into a "termination agreement" 594
9.2.1.2 The formalities pertaining to the termination of a
registered domestic partnership 594
9.2.1.3 Responsibility to notify interested parties of termination 601
9.2.1.4 Conclusion 601
9.2.1.5 A further benefit: The Deeds Registries Act 47 of 1937 602
9.2.2 Termination by order of Court 604
9.2.2.1 Circumstances in which a Court order is required 604
9.2.2.2 The welfare of minor children 605
9.2.2.3 Termination of registered domestic partnership by Court
order where a partner refuses to cooperate 613
9.2.2.4 Extension of matrimonial property law by Court order 617
9.3 Consequences of termination 618
9.3.1 Inter-partner maintenance beyond termination of the partnership 618
9.3.2 Maintenance of a surviving registered domestic partner and
intestate succession 623
9.3.3 Delictual claims 625
xiii
9.3.4 Time limits for applications by registered domestic partners 627
9.3.5 Property division 633
9.3.5.1 Aligning clause 22 with clause 18 as well as with the
time limit imposed by clause 23 634
9.3.5.2 The quantum and merit processes 634
9.3.5.3 The application of the redistribution competency:
Guidance from the (divorce) Courts 636
9.3.5.4 Deferral of claims 640
9.3.5.5 A note on the constitutionality of the redistribution
competency 641
9.3.5.6 The amended version of clause 22 643
9.4 Conversion of a registered domestic partnership into a marriage and vice
versa? 645
9.5 Conclusion 647
10. MISCELLANEOUS AMENDMENTS TO MARRIAGE AND CIVIL PARTNERSHIP
LEGISLATION THAT WILL BE NECESSITATED BY THE ADVENT OF THE
REGISTERED DOMESTIC PARTNERSHIP IN SOUTH AFRICA 647
10.1 Interaction with marriage and civil partnership legislation 647
10.2 The Wills Act 7 of 1953 652
10.3 Conclusion 653
11. THE UNREGISTERED DOMESTIC PARTNERSHIP 654
11.1 Introduction 654
11.2 Part I of chapter 4: "Property division after termination of unregistered domestic
partnership" 654
11.2.1 Clause 26 of the Bill 654
11.2.2 Identifying the correct threshold criterion 657
11.2.3 The indicators listed in clause 26(2) 664
11.2.4 Formal requirements 665
11.2.5 Prohibited degrees of affinity and consanguinity and so-called
"care partners" 665
11.2.6 Calibration with other legislation 666
11.2.7 Conclusion: The recommended amended version of clause 26 667
xiv
11.3 Part II of chapter 4: "Maintenance after termination of an unregistered domestic
partnership" 669
11.3.1 Introduction 669
11.3.2 Maintenance after separation 669
11.3.2.1 Introduction 669
11.3.2.2 The effect of a purely religious marriage on a
maintenance order 672
11.3.2.3 Conclusion 674_
11.3.3 Maintenance after the death of an unregistered domestic
partner 676
11.4 Intestate succession 681
11.5 Time limits within which unregistered domestic partners are required to bring an
application for the relief provided by the Bill 689
11.6 Property division 690
11.7 "Contracting out" 695
11.8 Other claims based on a reciprocal duty of support 696
11.9 Consortium omnis vitae 697
11.9.1 Introd uction 697
11.9.2 Constitutional considerations 700
11.9.3 Conclusion: Consortium omnis vitae inter partes 705
11.9.4 Consortium omnis vitae, the unregistered domestic
partnership and the "choice argument" 706
12. THE FINAL FACET OF THE RUBRIC: CALIBRATING THE MODIFIED DOMESTIC
PARTNERSHIPS BILL WITH LEGISLATION DEALING WITH LIFE OR DOMESTIC
PARTNERSHIPS 707
12.1 Introduction: Assessing the need for reform and determining the principles
that should guide the way forward in compliance with the rubric's calibration
injunction 707
12.2 Giving effect to these principles 712
12.2.1 Acts that are self-sufficient and therefore do not require alignment
with the Bill 712
12.2.1.1 The Immigration Act 13 of 2002 712
12.2.1.2 The Domestic Violence Act 116 of 1998 713
xv
12.2.1.3 The Rental Housing Act 50 of 1999 713
12.2.1.4 The Diplomatic Immunities and Privileges
Amendment Act 35 of 2008 713
12.2.1.5 The Maintenance Act 99 of 1998 714
12.2.2 Cases of uncertainty 714
12.2.3 Acts that should be aligned with the Bill 715
12.2.4 An Act that requires special attention: The Children's Act 38 of
2005 722
12.2.5 Facilitating the process of "cross-pollination": Clause 26 of the Bill 741
12.3 Conclusion 741
13. CONCLUSION 742
CHAPTER 8: EVALUATING THE CONTINUED NEED FOR THE CIVIL UNION ACT
OF 2006 AND A NOTE ON THE WAY FORWARD FOR SOUTH
AFRICAN FAMILY LAW 747
1. INTRODUCTION TO PART 4 747
2. SAME-SEX MARRIAGE IN SOUTH AFRICA 748
2.1 The South African Law Reform Commission 748
2.2 The Legislature's response to Minister of Home Affairs v Fourie: The Civil
Union Act 17 of 2006 750
2.3 Summary of marriage and analogous interpersonal relationships that are
currently recognised in South African law 752
2.3.1 Civil marriages 752
2.3.2 Marriages under the Civil Union Act 17 of 2006 752
2.3.3 Customary marriages 752
2.3.4 Civil partnerships 753
2.3.5 Purely religious marriages 754
xvi
2.3.6 Domestic or life partnerships 754
2.3.7 Graphic illustration 754
2.3.8 Conclusion 755
3. THE LEGAL POSITION IN THE NETHERLANDS 756
3.1 Civil marriage 757
3.2 Registered partnership 758
3.3 Contract 760
4. EVALUATION OF THE CURRENT POSITION IN SOUTH AFRICA 761
4.1 Important similarities and differences between South Africa and the
Netherlands 761
4.2 The case for retaining the Civil Union Act of 2006 764
4.3 The case for repealing the Civil Union Act of 2006 766
4.3.1 The nature of the institution of civil marriage in South Africa 766
4.3.1.1 The wording of the Civil Union Act creates uncertainty 768
4.3.1.2 The anomalies pertaining to heterosexual life partners 769
4.3.1.3 The concept "civil union" is purely semantic and in fact
meaningless 771
4.3.2 The effect of repealing the Civil Union Act on Bilchitz and Judge's
"transformative" perspective 773
4.3.3 Countering Bilchitz and Judge's additional reasons for asserting that the
Marriage Act should be repealed 775
4.3.4 Preliminary conclusion 782
5. IS THERE STILL A NEED FOR THE CIVIL PARTNERSHIP? 783
6. THE COURSE OF ACTION SUGGESTED 785
7. TYING UP THE LOOSE ENDS-THE IMPACT OF THE DOMESTIC PARTNERSHIP
LEGISLATION MODIFIED ACCORDING TO THE RUBRIC 788
8. DIVERGING PERSPECTIVES ON THE WAY FORWARD 790
8.1 Introd uction 790
xvii
8.2 A brief note on the way forward 792
8.3 Conclusion 801
9. CONCLUSION 801
I CHAPTER 9: CONCLUSION 805
I SUMMARY lOPSOMMING 813
I BIBLIOGRAPHY 819
I KEY TERMS 849
I CASE LAW CONSULTED 851
I LEGISLATION CONSULTED 861
1
CHAPTER 1:
INTRODUCTION
1. CONTEXT
The scale and scope of the complexities surrounding the issue of recognisingand regulating relationships in South Africa between people who live together"as husband and wife,,1without concluding a State-sanctioned marriage have
only fairly recently become prominent features of legislative and judicial developments
and academic discourse." Although many terms are used in order to categorise these
relationshlps.ê for the purposes of this introductory paragraph the parties involved in
such relationships will be referred to as "domestic partners" and the resulting
phenomenon as a "domestic partnership."
The uneasy relationship between law and family life beyond the confines of marriage in
the traditional sense has at times vacillated between moralistic disapproval or and later
See Drummond v Drummond 1979 (1) SA 161 (A) at 167 (A) - (B) where the phrase "living together as man
and wife" was explained as denoting "the basic components of a marital relationship except for the
formality of marriage." This phrase should be interpreted broadly to include same-sex couples-see
Schwellnus 1995: 134.
See for example Hahlo 1972: 321 et sea; Thomas 1984: 456, 457; Goldblatt 2003: 610 et seq; Schwellnus
1994 (in general) and 1995: 133 et seq; Singh 1996: 317, 318; Lind 2005: 108 et seq; Labuschagne 1989:
649 et seq.
See 2 in Chapter 4 below.
4
Volks NO v Robinson 2005 (5) BCLR446 (CC) at par (124) and (167). In the early seventies Hahlo (1972:
321) remarked that: "No doubt because South Africans are a moral people, there are not many cases on
concubinage in our law." In 1995 Schwellnus (1995: 134) made the telling statement that "[i)n South
Africa cohabitation is not as common as in Europe, as a consequence of South Africa's conservative and
2
plain disregard for heterosexual cohabitation and its legal consequences/' while same-
sex relationships in particular were for the most part subjected to unadulterated
hostility." It is therefore patent that the provision of an effective and suitable framework
within which all permanent domestic partnerships could be accommodated has
traditionally constituted one of the most challenging issues with which family law has
had to contend.
Towards the latter half of the previous century, a more accommodating yet
marginalising attitude towards heterosexual unions was adopted, with the ostensible
approach towards persons living together out of wedlock apparently being to tolerate
the phenomenon while neither proscribing nor promoting it.a The gateway to full legal
recognition of an intimate relationship was however limited to civil marriaqe." Indeed, in
Calvinistic background [see 3.4.7.3 in Chapter 2 for a discussion of the influence of Calvinism and Christian
Nationalism in South Africa], although the numbers of cohabitees have been increasing in South Africa
since 1980 at the rate of 100% per year. It is likely that the South African figures will be comparable to
the current figures in England in 10-20 years." For an example of the earlier disapproval of such
relationships in English case law (per Louw J in Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684
(C) at 687 (J) - 688 (B)), see Gammans v Ekins [1950] 2 All ER 140 (CA), where Asquith U, in referring to
heterosexual cohabitants, said: "To say of two people masquerading, as these two were, as husband and
wife-there being no children to complicate the picture-that they were members of the same family,
seems to me an abuse of the English language ... " (at 142).
Thomas 1984: 456. Van der Vyver and Joubert 1991: 449, 450 concede that while relationships between
unmarried persons could potentially be as strong or even stronger than those between spouses, the lack
of formal recognition of and obligations resulting from such relationships meant that it was quite
understandable why South African law dissuaded parties from living together without being married.
6 South African law has for the most part been far more tolerant of heterosexual relationships-see
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at par [42]. A
good example of a judgmental approach adopted to homosexuality occurs in the pre-Bill of Rights
decision of Van Rooyen v Von Rooyen 1994 (2) SA 325 (W) at 329 (I) - 330 (A) where, in the context of
divorce and the possibility of the mother of the children who was involved in a lesbian relationship being
granted rights of access to her children, Flemming DJPstated that "[t]he signals are given by the fact that
the children know that, contrary to what they should be taught as normal or what they should be guided
to as to be correct (that it is male and female who share a bed), one finds two females doing this and not
obviously for reasons of lack of space on a particular night but as a matter of preference and a matter of
mutual emotional attachment. That signal comes from the fact that they know the bedroom is shared. It
is detrimental to the child because it is the wrong signal." (emphasis added). As far as gay men were
concerned, pre-1994 South African law criminalised sodomy between such persons even if this took place
in private between consenting adults-see National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others 1999 (1) SA 6 (CC) at par [11].
See Thomas 1984: 456,457 for examples of conflicting considerations in pre-democratic South Africa.
8 While the law did not proscribe heterosexual cohabitation, it certainly did not encourage it either-see
Van der Vyver and Joubert 1991: 450; Volks NO v Robinson 2005 (5) BCLR446 (CC) at par [160].
See for example Visser and Potgieter 1998: 5; De Vos 2004: 189.
3
the three intervening centuries between the first Dutch settlement at the Cape of Good
Hope in 1652 and the advent of the democratic constitutional era in 1994,10 the
monogamous marriage between a man and a woman was the only form of marriage
that was fully recognised by South African law." It is therefore not surprising that in the
early seventies Hahlo described the legal position in South Africa as follows:
There is no 'law of concubinage' in the same sense as there is a 'law of husband and wife', for
while marriage is a recognized legal relationship, concubinage is not. [The legal position at the
time therefore needed to be analysed with reference to] the application of general rules of law
to the factual situation known as concubinage.12
It goes without saying that the exclusive position enjoyed by monogamous civil marriage
did not take cognisance of the multifarious nature of South African society and without
doubt reflected the collective legal viewpoint of the minority of South African citlzens."
Gay and lesbian couples were also left out in the cold: As far as male homosexual
unions were concerned, such relationships were not only severely stigmatised, but the
act of sodomy remained a crime well into the 1990'S.14 Although lesbian sexual conduct
was not criminalised, this did little to alleviate the stigmatisation to which the parties to
such relationships were also subjected. Gay and lesbian couples were obviously also
prevented from marrying one another.
The advent of a democratic constitutional era in South Africa in 1994 began to place
increasing pressure not only on the paramountcy enjoyed by civil marriage, but also on
10 These developments will be discussed in Chapters 2 and 3 that follow.
11 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2)
SA 1 (CC) at par [36]; Du Plessis v Raad Accident Fund 2004 (1) SA 359 (SCA) at par [12]; Fourie v Minister
of Home Affairs 2005 (3) SA 429 (SCA) at par [2] and SALRC 2006: 3 and 108. As De Vos (2004: 188)
explains, although some form of recognition of customary law was provided by the Black Administration
Act 38 of 1927, customary law was not readily applied as it had to be proven by expert evidence in Court.
12 Hahlo 1972: 321.
13 Pre-democratic South African law blatantly disregarded the marriages of the majority of South Africans-
see Chapters 2 and 3 as well as the minority judgment of Sachs J in Volks NO v Robinson 2005 (5) BCLR446
(CC) (at par [160]) where this fact is emphasised.
14 See in general National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Others 1999 (1) SA 6 (CC).
4
the denial of automatic legal consequences for heterosexual or homosexual non-
formalised permanent domestic partnerships." Furthermore, by weight of sheer
statistics, if it is borne in mind that the incidence of such relationships involving persons
over the age of 14 almost doubled between the Census periods of 1996 and 2001,16
that a more than significant number of adult women in all race groups in South Africa
are unmarried." and that marriage is no longer perceived as an automatic or essential
option for intimate couples or family formation," the lack of legal recognition of domestic
partnerships is simply untenable.
Against this backdrop, the Bill of Rights in post-1994 South Africa has sparked a flurry
of judicial and legislative activity which, in the words of Sachs j in Minister of Home
Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian & Gay Equality
Project v Minister of Home Affairs19 "led to a patchwork of laws that did not express a
coherent set of family law rules." This study attempts, with specific reference to
permanent domestic partnerships, to provide a more consistent, coherent and less-
complex legal framework by virtue of the application of a robust domestic partnership
rubric.
15 See Chapter 3 where the developments in this regard are discussed.
16 See SALRC2006: 21. These statistics prompt Und (2005: 108) to describe cohabitation as an "endemic
social phenomenon."
17 According to the SALRC(2006: 22 (and note 18)) only 40% of African and Coloured women are married,
while approximately 60% of White and Indian women are married. Although it is certainly true that the
fact that they are unmarried does not imply that they cohabit, it is safe to assume (particularly on the
basis of the Census statistics) that a significant number of these unmarried women do. In addition, the
SALRC(2006: 21 (note 16)) mentions that the incidence of cohabitation where one of the cohabitants is
married to someone else is also difficult to determine due to the fact that societal attitudes may
discourage such persons from revealing the true state of affairs.
18 See SALRC 2006: 24 et seq; and Schwellnus 1994: 2 who refers to Glendon's findings that "geographic
mobility, the declining influence of formal religion, the transformation of socio-economic roles of women,
greater longevity and the increased control over the reproductive processes are just some of the factors
that have had an influence on the changing institution of marriage and family formation."
19 2006 (1) SA 524 (CC) at par [125).
5
2. STRUCTURE OF THIS STUDY
This study is divided into four Parts. In Part 1, the development of South African
matrimonial law is analysed with a view to ascertaining the need for legislation to govern
formalised and non-formalised permanent domestic partnerships and, if such legislation
is indeed found to be necessary, establishing a rubric according to which the same
should be crafted. The second part of the study attempts-on the basis of an in-depth
analysis of case law, common law and existing legislation-to identify certain
fundamental principles which should be embodied in South African domestic
partnership legislation. In Part 3 the rubric is put into action, in accordance with which
(i) the conclusions reached and principles formulated in Part 2 will be transposed onto
prototypical legislation in the form of the draft Domestic Partnerships Bill of 2008, and
(ii) the newly-modified Bill will be calibrated with attendant legislation. The final Part of
the study (Part 4) attempts-in the light of the domestic partnerships legislation
developed in Part 3-to evaluate the case for retaining the Civil Union Act 17 of 2006 in
the interests of a less complex and more effective body of South African family law.
The study will conclude with a consideration of the way forward for South African family
law and the significance of this study in this regard.
3. METHOD AND SCOPE OF THIS STUDY
While this study focuses on the need for legislation to govern formalised and non-
formalised domestic partnerships, it is important to note that such legislation cannot
function effectively unless it co-exists with marriage in a broader interpersonal
relationships framework. To this end, a detailed historical and comparative analysis of
the development and current legal position pertaining to marriage and analogous
relationships and their potential impact on and interrelationship with domestic
partnership legislation is required. The focus, however, remains on the legal position of
non-marital unions. The result is that, while the current legal position pertaining to
marriages that are not currently recognised as valid civil or customary marriages
6
according to South African law (such as religious marriages) must of necessity be
considered, the further development of the legal position pertaining to such marriages
falls beyond the scope of this study.
In closing, cognisance must be taken of the fact that the comprehensive and effective
regulation of formalised and non-formalised domestic partnerships involves a wide
range of policy and legal considerations and embodies the application not only of
virtually every aspect of private law (contract, delict and succession to name but a few)
but also of many aspects of public law such as constitutional and criminal law. For this
reason, while it must be conceded from the outset that this study is voluminous, a
comprehensive analysis of the multitudinous and interrelated issues at hand makes this
unavoidable.
7
CHAPTER 2:
LAYING THE FOUNDATION: THE DEVELOPMENT OF
MATRIMONIAL LAW AND A JUXTAPOSITION OF MARRIAGE IN
PRE-1994 SOUTH AFRICA WITH DEVELOPMENTS IN THE
WESTERN LEGAL TRADITION
1. INTRODUCTION
This Chapter will attempt to analyse the historical development of the lawof marriage as from Roman times until immediately before the advent ofthe democratic constitutional era in South Africa. Throughout the course
of this Chapter the development of the major theological models of marriage in
the Western legal tradition will simultaneously be traced with a view towards both
illustrating the dynamic and ever-changing theological and legal nature of
marriage and ascertaining the basic denominator that is common to marriage
irrespective of the (theological) model encapsulating it or of the legal nature
ascribed to it. In so doing the role played by State and Church in governing and
regulating marriage will be examined, and the potential inter-relationship between
legislation based on a robust domestic partnership rubric that co-exists with and
complements the contemporary contractarian model of marriage that prevails in
Western jurisdictions will be considered.
8
2. MARRIAGE IN EARLY TIMES
2.1 The Roman law marriage (iustum matrimonium): Marriage as a
matter of social significance
Marriage in Roman law was a venerated institution," the significance of which
can largely be attributed to the central role played by the family unit in Roman
society." The central figure in the Roman familia was the paterfamilias or "father
of the family", who exercised lifelong paternal authority (patria potestas) over a
considerable number of persons," including his cum manu wife and his children."
The relevance and importance of marriage is illustrated by the fact that the wife
acquired the honor matrimonii by virtue thereof, and that the existence of a valid
Roman marriage was the major vehicle by which the patria potestas was
established thereby enabling the children so born to continue their father's
family.s Prior to the Christian influence marriage enjoyed societal rather than
legal or religious significance, with the existence or otherwise of a marriage being
determined on a de facto rather than de iure basis."
The revered nature of marriage as an institution is illustrated by Modestinus (D 23.2.1) where he
describes marriage as "[njuptiae sunt coniunctio rnaris et feminae et consortium omnis vitae,
divini et humani iuris communicatio" (marriage is a joining of man and woman, a partnership in
the whole of life, a sharing of rights both sacred and secular)-as per Farlam JA in Fourie v
Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [84]. Also see Campher v Campher 1978 (3)
SA 797 (0) at 798 (E) and Ex parte Inkley and Inkley 1995 (3) SA 528 (C). In the latter case, the
definition quoted from Fourie is translated as "[m]arriage is the joining of a man and a woman in
a consortium of every aspect of their lives, together with a communication of divine and human
law" at 535 (H).
Van Warmelo 1957: 52; Van ly11983: 9.
Sandars 1905: xxxviii, xxxix; Spilier 1986: 60; Van Warmelo 1957: 52; Van ly11983: 87.
See G 1.55: "In potestate nostra sunt liberi nostri, quos ex justus nuptiis procreaverimus-Our
children, begotten in lawful marriage, are in our power" per Sandars 1905: 20. The extent to
which the paterfamilias exercised power over his son is illustrated in Inst. 1.9.3 and 1.12.4.
Campher v Campher 1978 (3) SA 797 (0) at 798 (G); Van lyl 1983: 97.
Fourie v Minister of Hame Affairs 2005 (3) SA 429 (SCA) at par [69]; Van lyl 1983: 97. It is
interesting to note the parallels in this regard with modern-day South Africa, where, although
compliance with anyone of the three marriage statutes (i.e. the Marriage Act 25 of 1961; the
Recognition of Customary Marriages Act 120 of 1998 and the Civil Union Act 17 of 2006) is
required in order for any union to be recognised as a legal marriage for the purposes of South
African law, there appears to be a tendency to recognise and apply certain consequences of
marriage (such as the reciprocal duty of support) to non-formalised life partnerships or what may
for the sake of convenience be termed "purely religious 'marrlages'" on a de facto basis-see
9
As is qenerally" the case in present-day South Africa, marriage in Roman law
was preceded by a contract of engagement (sponsalia). Originally regarded as a
formal agreement, the agreement was usually concluded by the parents of the
couple by way of oral promises that were enforceable. In later years the
engagement came to be regarded as an informal one which was concluded by
the parties themselves who presented one another with gifts (arrhae sponsalicia)
as a pledge of enqaqement." The agreement to marry could not be enforced in
the event of the marriage not taking place and, similarly, no claim for
compensation in the form of damages could be instituted against a party who
breached the betrothal." This did not however mean that the termination of an
engagement was entirely without legal consequences, as liability for infamia
could ensue, for example, where a person purported to enter into two
simultaneous betrothals.'? It was also understood that the gifts proffered as
pledge of the engagement would be forfeited by a party who terminated the
engagement in a wrongful manner and that such a party would repay double the
value of any such arrhae received by him or her to the "innocent" party."
Both parties had to have the right to conclude a Roman marriage (the ius
conubii); a right reserved for persons who were Roman citizens (cives Romenn,'?
Over and above the aspect of citizenship, conubium also comprised an age
requirement, namely that both parties must at least have attained the age of
Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) at par (25);
Khan v Khan 2005 (2) SA 272 (T) at par [10); Du Plessis v Road Accident Fund 2004 (1) SA 359
(SCA) at par (11)- (16).
The existence of a valid engagement is not regarded as an absolute prerequisite for a valid civil or
customary marriage to take place-see (within the context of civil and customary marriages
respectively) Cronjé and Heaton 2004: 2 and Jansen 2006: 31.
8
Van der Vyver and Joubert 1991: 458; Van Zy11983: 98.
Hahlo 1985: 1; Van Zy11983: 98.
10
D 3.2.1; Hahlo 1985: 1 (note 4); Van Zy11983: 98.
11
Van Zyl 1983: 98, 99; Spilier 1986: 61.
12
G 1.56 et seo; Van Zyl 1983: 99; Spilier 1986: 63. Only privileged peregrini had the ius
connubium, but Ulpianus (5.4) mentions that others (such as Latini) could be granted the same-
see Spilier 1986: 63 and De Zulueta 1953: 30.
10
puberty which was regarded as 12 years for girls and 14 years for boys." In
addition, Roman marriages were required to be monogamous, and the parties
could be precluded from marrying one another by virtue of the prohibited degrees
of affinity or by social or moral constraints."
In earlier times the wife (uxor) to a Roman marriage was placed under the
authority or potestas of her husband or his paterfamilias (in the event of her
husband himself being in potestas). Such a marriage cum manu consequently
entailed that, although she was regarded as being the materfamilias, a wife in
manum viri found herself in the same position as if she were her husband's (or,
where apposite his paterfamilias's) daughter and her children's sister." It is
interesting to note that the husband acquired this position over his wife not in his
capacity as husband, but as her father." As such, marriage implied drastic
changes to the wife's status, while the same did not occur in the husband's
case."
Marriages cum manu took place in three forms, namely by confarreatio (the
ritualistic religious marriage); 18 or secularly by either coemptio (the fictitious
agreement of sale by which the wife was "purchased" by her husband by way of
mencipetiov" or usus (in terms of which manus was in effect established by way
of prescription by virtue of the wife having lived with her husband for one full
13 Inst.1.10 pr; and 1.10.22 pr.; C 5.4.24; Hahlo 1985: 1. Although invalid, a marriage involving an
impubes was later validated once the appropriate age had been reached, provided that the
parties lived together with the intention of being married-see D 23.2.4 and Sandars 1905: 33.
The distinction between the sexes regarding the age of puberty still obtains in present-day South
Africa-see Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA) at par (16). In the latter case,
Scott JA remarked that "[i)n passing, it is worthy of note that this gender-based distinction
between girls and boys may well be unjustifiable. The more appropriate cut-off point would
seem to be 14 years for children of both sexes..."
14 Inst. 1.10.1-3,5-7,9 and 12; G 1.58, 59; Van Zyl 1983: lOO, 101. Consummation of the marriage
was not required-see 0 35.1.15.
IS Maine 1901: 155; Van Zy11983: 103; Spilier 1986: 68; De Zulueta 1953: 34.
16 Maine 1901: 155.
17 Hahlo 1985: 1; Spilier 1986: 67, 68.
18 Maine 1901: 154; Sohm (translated by Ledlie) 1907: 453.
19 Spilier 1986: 66; Van Zy11983: 102 (note 109); De Zulueta 1953: 35.
11
year).20 In each of these forms of marriage any property brought into the
marriage by the wife or acquired during the existence of the marriage became
that of the husband (or his paterfamilias).21 On the husband's death, the Roman
law of succession allowed a husband to appoint a tutor for his wife, and it
regarded her as having a status similar to that of one of his dauqhters."
A less formalistic view of marriage coupled with societal changes that led to the
increased independence of women implied that the need for marriage with
manus began to dissipate,23 and Spille~4 mentions that by the second century
AD it had been superseded by the marriage without manu (sine manu).25 This
form of marriage was not an institution that was governed or regulated by the
State, but instead was a private act that was brought about by the consent of the
spouses coupled with an intention to marry." No public records of the marriage
were required, and the marriage did not affect the status of the wife in any way_27
Despite the lack of formal legal requirements, marital ceremonies were often
held, specifically as a way of evincing the parties' unequivocal intention to marry
one another."
An obvious consequence of the marriage sine manu was that the wife
(matronal9 did not become part of her husband's familia and was also not
20
G 1.109-114; Spilier 1986: 67; Van Zyl 1983: 102 (note 109). The law of the Twelve Tables
permitted her to prevent the manus by living apart from her husband for three successive nights
during that year (absentia trinoctium) see G 1.111; SpilIer 1986: 67; Van Zy11983: 102 (note 109).
21
Campher v Campher 1978 (3) SA 797 (0) at 798 (H).
22
G 1.148; SpilIer 1986: 68.
23
Van Zyl 1983: 103.
24 1986: 68.
25
This appears to have been facilitated by the fact that in the case of a marriage with monus
established by usus, the wife prevented falling under the manus of her husband by ensuring that
she vacated the matrimonial home for three consecutive nights each year. As a result of this
marriage cum manu fell into desuetude and the absentia trinoctium fell away-see Van Zyl 1983:
103; Sohm (translated by Ledlie) 1907: 457.
26
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) par [69].
27
Fourie v Minister of Home Affairs 2005 (3) SA429 (SCA) par [69]; Hahlo 1985: 2.
28
SpilIer 1986: 67; Van Zy11983: 104.
29
Originally used to distinguish between a wife in manum ("uxor") and one without, this term was
later used for all married women-see Sandars 1905: 31.
12
subject to the potestas of her husband or his paterfamilias.3o Despite the
existence of a rebuttable presumption that all property in the matrimonial home
belonged to her nusband," no community of property ensued in the marriage.32
The fact that marriage did not alter the status of the parties therefore permitted a
wife to own her own property provided that she was sui iuris.33 If, on the other
hand, she was under the potestas of her own paterfamilias, all property acquired
during the marriage accrued to him.34 Donations between spouses (donatio inter
virum et uxorem) were as a rule prohibited and, at least initially, no right of
intestate succession was recognised in civil law."
It is interesting to note a number of parallels that can be drawn between the
Roman marriage in the classical period and modern-day South African family
law: For instance, although this was not a requirement for the validity of a Roman
marriage, the parties could enter into an agreement known as an instrumentum
dotale to govern the patrimonial consequences of their marrlaqe" This
agreement is comparable with the antenuptial contract encountered today."
Secondly, Roman law dictated that, as an outflow of husband and wife's duty to
respect and revere one another (the duty of reverentia),38 it was not permissible
to institute defaming actions against one another." This is still to some extent
30 Van ly11983: 105; Spilier 1986: 68, 69.
31 Van ly11983: 105.
32 Campher v Campher 1978 (3) SA 797 (0) at 798 (G).
33 A Roman citizen was sui iuris if he or she was not under the patria potestas or manus of anyone
else-see Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) at 403 (D).
34 Campher v Campher 1978 (3) SA 797 (0) at 798 (H); Hahlo 1985: 2; Van ly11983: 105.
3S See Spilier 1986: 69, 70. As far as spouses were concerned, the following applied (see Van lyl
1983: 205 et seq): The Twelve Tables confined the right to inherit intestate to a wife married cum
manu. This state of affairs was systematically refined by the praetor, who, by virtue of
praetorian edicta granted the husband or wife of the deceased the right to inherit intestate.
Finally, the Roman law of intestate succession received a complete overhaul by Justinian in his
Novellae. Although the Novellae did not categorically provide for this, a surviving spouse could,
by virtue of the earlier developments, inherit intestate in the event of no blood relatives being
able to inherit (cfSpilier 1986: 164, 165).
36 Hahlo 1985: 2; Van lyl 1983: 104.
37 Van lyl 1983: 104.
38 Spilier 1986: 69.
39 Campher v Campher 1978 (3) SA 797 (0) at 799 (F) - (G); Van ly11983: 105; Spilier 1986: 69.
13
the position in South Africa today, where spouses are, as a matter of policy, not
allowed to institute actions based on defamation against one another."?
It was customary for the paterfamilias (or another relative) of a woman who
entered into marriage to provide a dowry (dos) for her husband in order for his
wife to maintain a similar standard of living to that enjoyed by him and to
contribute to the upbringing of the children and the maintenance of the joint
household." By the time of Justinian's reign this custom had evolved into a legal
duty.42 Initially, the husband was entitled to the dos and its fruits, and could, in
principle, dispose freely of movables forming part thereof." but an increasing
divorce rate with the resulting greater prospect of remarriage required a
curtailment of the husband's powers. In this way the wife came to have a
preferential tacit hypothec over her husband's property so that the dos had to be
returned to her unless the marriage had been dissolved by divorce due to her
fault (in which case the dos or a part thereof was forfeited to the children while
the husband retained the use thereof)."
In addition to the dos, it later became common for the husband to give a
gratuitous marriage settlement to his wife as a type of "counter dos," known as a
donatio propter (or ante) nuptias. A tacit condition of this donatio was that it
would only take effect when the marriage which constituted its causa followed."
and it was given with the main aim of providing for the wife's maintenance needs
after the death of her spouse or after divorce." Although sometimes viewed as a
donatio for the benefit of the children subject to the usufruct of the wife rather
than a benefit for the wife per se, by the time of Justinian the dos and the donatio
40
See for example Cv C 1958 (3) SA 547 (SR)at 548 (A) - 552 (F).
41
Campher v Campher 1978 (3) SA 797 (0) at 799 (A); Hahlo 1985: 2; Van Zy11983: 106, 107.
42
Van Zyl 1983: 106; SpilIer 1986: si.
43
Inst. 2.8 pr.
44
Hahlo 1985: 3; Van Zyl 1983: 108, 109.
45
Inst.2.7.3.
46
Campher v Campher 1978 (3) SA 797 (0) at 799 (D); Hahlo 1985: 3.
14
were virtually equated with one another with the result that the rules governing
the donatio were substantially similar to those governing the oos."
Roman marriages were terminated by death (subject, initially, to a one-year
period of mourning [annus luctus] by the wife),48 by divorce (effected by way of
an act that reversed the act by which the marriage came into being),49 by loss of
citizenship or as a result of a criminal sentence.i"
As seen earlier, although no formal requirements were posed for the conclusion
of a marriage, the intention of the parties was paramount. Mere cohabitation
without the requisite intention to be married was neither essential nor sufficient to
constitute a valid rnarrlaqe." According to SOhm,52parties who lived together in
such unions (concubinatus) were nevertheless acknowledged by the law after the
time of Augustus53 "as constituting likewise a mode of lawful union between a
man and a woman for the purpose of permanent mutual companionship." By the
47 Van Zyl 1983: 109.
48 See Hahlo (1985: 4) who mentions that this rule was aimed at preventing doubts as to the
paternity of children born of the wife. Penalties were imposed in the event of a wife disregarding
this rule and marrying another prior to the expiration of the one year period: She or her father
could be rendered infamous with drastic social consequences-see SpilIer 1986: 70, 71.
49 So, for example, Hahlo (1985: 3, 4) mentions that if the marriage had been concluded cum manu
by way of confarreatio, it was terminated by disfarreatio; and if it was concluded by way of
coemptio or usus, it was terminated by remancipatio (resale). If the marriage was without
manus, it was terminated either by mutual consent or by way of a unilateral repudiation by
either spouse or his or her paterfamilias-see Spilier 1986: 71. Divorce by mutual consent was
eventually abolished by Justinian in 542 AD, only to be reinstated by his successor two decades
later. Unilateral repudiation was initially permitted on rather feeble grounds, but later subjected
to certain limitations in order to prevent abuse and to stem the tide of a high divorce rate-see
Van Zy11983: 112.
50 Van der Vyver and Joubert 1991: 459; SpilIer 1986: 71.
51 Sandars 1905: 31; Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [69].
52 Sohm (translated by Ledlie) 1907: 457. Also see Labuschagne 1989: 651 who states that although
the laws passed by Augustus did not prohibit cohabitation, the law neither recognised nor
regulated such relationships. She mentions further (at 655) that the emperors who succeeded
Augustus not only recognised cohabitation, but in fact encouraged the same.
53 "Augustus" was the title assumed by Gaius Octavius Thurinus (the adopted son of Julius Caesar)
who became the first Roman emperor in 27 BCand reigned until his death on 19 August AD-see
Van Zyl 1983: 6; Hayes et al 1967: 34, 35; http://www.roman-
empire.net/emperors/augustus.html (accessed on 15 July 2009).
15
time of Justinian'" the legal position was that, in order for it be worthy of
recognition, the union had to be consensual (whether the union constituted a
marriage or a concubinatus was determined solely by the parties' intention in this
regard), monogamous and entered into between persons who would otherwise
be permitted to enter into a valid marrlaqe." As a result, the parties had to be of
marriageable age and not related in the prohibited degrees.56 Such a
concubinatus was regarded as being an inferior marriage (inaequale
coniugium),57 with the result (inter alia) that the female cohabitant did not enjoy
the status of a married woman and that the children of such a union did not fall
under the potestas of the male cohabitant but were known as natural children
(Iiberi naturales).58 Already as from the time of Constantine's reign,59the children
born of a man and his concubine could be legitimated by subsequent marriage.6o
A union that did not qualify as an inaequale coniugium enjoyed no legal
recoqnitlon."
As an outflow of the requirement of monogamy, a married man was not permitted
to have a concubine." According to Van Zyl63the institution of concubinatus fell
into disrepute as a result of the Christian influence during the fourth century AD,
and attempts were made to discourage such unions; particularly by restricting the
rights of the offspring thereof. The concubinatus was however finally abolished
54
The Byzantine emperor Flavius Petrus Sabbatius lustinianus reigned from 527 - 565 AD-see
http://en.wikipedia.org/wiki/Justinian I (accessed on 22 October 2009) and Hayes et al 1967:
905.
55
Labuschagne 1989: 658.
56 Spill er 1986: 74.
57
Labuschagne 1989: 651.
58
Sohm (translated by Ledlie) 1907: 457, 458; Van Zy11983: 90; Labuschagne 1989: 660.
59
Constantine reigned from 306 - 337 AD-see SpilIer 1986: 20.
60 SpilIer 1986: 74.
61
Labuschagne 1989: 659.
62
Sohm (translated by Ledlie) 1907: 458.
63
1983: 90; cf Labuschagne 1989: 661: "Volgens Jonkers [in his 1938 thesis entitled "Invloed van
het Christendom op de Romeinsche Wetgeving Betreffende het Concubinaat en de Echtscheiding"
at 103 et seq) wil dit voorkom asof daar nie gesê kan word dat die Christendom 'n baie groot
invloed op die konkubinaatsverhouding uitgeoefen het nie, hetsy ten aansien van die negering
daarvan, hetsy ten aansien van die juridiese erkenning daarvan. Trouens die kerk het sekere
konkubinaatsverhoudings erken."
16
by the Byzantine emperor Leo VI ("the Wise,,)64in his 91st Novellae which states
that
It shall not be lawful to keep Concubines. The law which authorized men who do not
blush at such a connection to keep concubines was conducive to neither modesty nor
virtue. Hence We do not permit the error of former legislators to disgrace Our
government, and We hereby repeal this law forever. For, in accordance with the
precepts which We have received from God, and which are becoming to Christians, We
prohibit such a practice as being injurious not only to religion but also to nature. And,
indeed, if you have a spring and the Divine Law invites you to drink from it, do you
prefer to resort to a muddy pool, when you can obtain pure water? And even though
you have no such a spring, you still should not make use of what is forbidden. It is not
difficult to find a consort for Iife.65
2.2 Germanic law (from that which is recorded until the 5th century AD)66
Due to the dearth of reliable sources on the subject, primitive Germanic law
cannot be conveyed with pinpoint clarity. The reason for this is that it was
governed by tribal customary law which was handed down from generation to
generation by word of mouth."
Marriage in Germanic law was largely viewed as an agreement or transaction
between families rather than the spouses themselves." Once a suitable suitor
had been found, the marriage was preceded by negotiations between the
64
AD 19 September 866 - 11 May 912-see http://en.wikipedia.org/wiki/Leo VI the Wise
(accessed on 22 October 2009).
65 Per Labuschagne 1989: 661 (note 110).
66
Most of the available information regarding the early Germanic peoples is to be found in Julius
Caesar's De Bel/o Gal/ico and the writer Tacitus's Germania (see in general Smith (ed) 1855), a
work which appeared approximately 150 years after Caesar's, and, interestingly, appears to have
been written with a view towards highlighting the contrasts between the debased Roman society
and the "virtuous" Germanic one-see Hahlo and Kahn 1968: 332 (note 1); Hayes et 0/1967: 63.
67
Hayes et a/ 1967: 63; Hahlo and Kahn 1968: 342. As Hahlo and Kahn (1968: 342) state, this
implies that "[alii statements about the laws of the early Germanic peoples are therefore of
necessity generalizations."
68 Van der Vyver and Joubert 1991: 457.
17
families involved. These negotiations centered on the determination of a bride-
price (pretium nuptiale), delivery of which preceded the handing over of the bride
to her husband."
Much like Roman law with its concept of paternal power (patria potestas), the
Germanic tribes recognised similar paternal powers known as the mum."
Therefore, once the bride had been handed over to her husband, a token
symbolising the transferal of the munt from her father to the bridegroom was
presented to the tatter." The wedding was celebrated in the form of a feast
during which a number of rituals were performed, and this was followed by the
home-bringing of the wife. The marriage formally came into existence after
consummation thereof had taken place.72
Marriage entitled the husband not only to the munt over his wife, but also to the
munt over any children born to her, regardless of the identity of their biological
father.73 A wife was not permitted to participate in legal traffic and was not
generally entitled to own any property of her own save for the wedding gifts and
clothes received from her family at the wedding, the morgengawe (a gift which
was customarily given to her following the consummation of the wedding in
exchange for giving herself to her husbandj.Ï" and, at times, for any donation
given to her by her husband." The latter was, much like the donatio propter
69 Jl
Hahlo and Kahn 1968: 345; Hahlo 1985: 4.
70
Hahlo and Kahn 1968: 344.
71
Hahlo and Kahn 1968: 342, 343 and 345.
72
Van der Vyver and Joubert 1991: 457; Hahlo and Kahn 1968: 346; Hahlo 1985: 4. Parallels
between indigenous customary marriages and the Germanic marriages are immediately
apparent in terms of the family unions involved, the bride-price custom (referred to in African
customary marriages as "lobolo") and in the fact that polygamous unions (although uncommon)
were permitted according to Germanic law-see Hahlo 1985: 4; Hahlo and Kahn 1968: 345.
73
Hahlo and Kahn 1968: 344.
74
This was in accordance with the widergift principle in terms of which every transaction required a
counter-transaction-see Wessels 1908: 463; Hahlo 1985: 4; Hahlo and Kahn 1968: 342, 343.
75
Van der Vyver and Joubert 1991: 458; Hahlo and Kahn 1968: 346; Hahlo 1985: 4.
18
nuptiae of Roman law, intended to make provision for the wife's needs in the
event of her husband predeceasing her.76
The marriage could be terminated by divorce, but only the husband had the right
to do so unilaterally." Divorce could be effected by mutual familial consent or by
simply returning the wife to her farnily." If the reason for divorce was material he
was entitled to demand a full or partial reimbursement of the bride-price paid for
her.7g
3. THE CHANGING FACE OF MARRIAGE: A GLOBAL PHENOMENON
CATEGORISED BY A VACILLATION BETWEEN STATE AND
RELIGIOUS CONTROL
There has been a tension throughout history between two interlocking aspects
of marriage: marriage as a publicly policed institution and marriage as an
.IndilVvIid uaI experie. nce. 80
3.1 The Roman Empire
As seen above, the State played a minimal role in the Roman law of marriage,
and it had jurisdiction over the consequences of marriage rather than the
formation thereof."
After many attempts to suppress it, Christianity became an official religion of the
Roman Empire in AD 313.82 Despite further attempts to derail the religion
76 Van der Vyver and Joubert 1991: 458.
77 Olivier 1974: 164; Hahlo and Kahn 1968: 346.
78
Hahlo and Kahn 1968: 346; Van der Vyver and Joubert 1991: 458; Hahlo 1985: 4, 5.
79 Van der Vyver and Joubert 1991: 458.
80 Merin 2002: 9, 10.
81 Merin 2002: 10.
19
(notably by the pagans under Julian "the apostate" AD 361 - 363), Christianity
flourished and spread throughout the Roman Empire.83 Roman law-hitherto
regarded as a divine law presided over by a divine emperor-became infused
with Christian laws and beliefs and was now presided over by an emperor who
was simultaneously "pope and king, [and] who reigned supreme in spiritual and
temporal matters.t"
As from AD 325 the Empire enjoyed a brief century or so of political calm which
allowed the Church to establish itself in hitherto pagan regions, and by the time
of the fall of the Western Empire in AD 476 the Church was ideally poised to
supply the political and social stability that had become so sorely absent during
the preceding decades of decay." As Hayes et a/86 state:
When the Roman political structure disintegrated in the fifth century, the organized
church already possessed sufficient stability to survive and to exert a growing influence
over society. In a sense, it replaced the Roman Empire as the principal civilizing agent of
Europe.
Despite the Christianisation of the Western Empire, marriage did not immediately
come under the control of the Church, and the Roman law of marriage remained
largely a formless institution based on the consent of the parties and thus free
from rigid State or ecclesiastical control."
82
This occurred by the Edict of Milan which was issued by Constantine in that year. According to
Witte (2004: 3) Constantine himself converted to Christianity in 312 AD, but Christianity only
became the official religion in the Empire in 380 AD. Hayes et al (1967: 46) do not share this
view-they state that Constantine only became a Christian many years after the issuing of the
Edict.
83
Hayes et 0/1967: 46.
84
Witte 2004: 3.
85
Hayes et 0/1967: 87.
86 1967: 87.
87
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) par (70).
20
As the first "watershed period" in the Western religious tradition, Witte88 opines
that the conversion of the Roman Empire to Christianity triggered the first of four
"massive transformations" in the Western legal tradition, the others being the
Papal Revolution, the Protestant Reformation and the Enlightenment. As will be
seen throughout this Chapter, these transformations would all later play a
prominent role in the development of South African (family) law in general and
the civil marriage in particular.
3.2 The advent of the Frankish empire (5th to the 9th century AD)
By the end of the fourth century AD, a large number of Germanic tribes had
settled along the northern frontier of the Roman Empire.89 The fall of the Roman
Empire in Western Europe led to large-scale migrations and the merging of tribes
throughout the erstwhile Roman territories. One of the most important of these
was the Franks (a term first used in the third centuryj'" who had originally settled
on the lower Rhine.91 The Franks were initially divided into two main groups,
namely the Salian and the Ripuarian,92 but under Clovis (481 - 511 AD) these
groups were united.93 A period of immensely successful expansion followed, in
consequence of which most of Gaul was conquered after the Romans, Visigoths
and Alamans had been defeated." Convinced that his success over the latter
tribe was due to the intervention of the Christian God, Clovis and his followers
embraced Catholicism in 496 AD.95 This development endeared him to the
Christianised Gallo-Romans; a fact which, coupled with the respect that the
88 2004: 2.
89 Hayes et al 1967: 63. These groups mainly comprised the Franks (on the lower Rhine), the
Alamans (the upper Rhine), the Burgundians, the Vandals and Suevi in the interior, the Saxons
and Angles along the North Sea, the Lombards (in Italy) and the Goths (on the Danube river and
north of the Black Seal-see Hayes et 0/1967: 63, 64.
90 Hahlo and Kahn 1968: 359.
91 Hayes et 0/1967: 63.
92 Hayes et al (1967: 63) mention that the names "Salian" and "Ripuarian" derive from sal (denoting
"salt" as in "sea") and ripa (or "riverbank") respectively.
93 Hahlo and Kahn 1968: 359.
94 Hayes et 0/1967: 69, 70; Hahlo and Kahn 1968: 359.
95 Hayes et 0/1967: 70.
21
Frankish Empire maintained for Roman traditions and customs, resulted in a true
fusion of the Germanic and Roman cultures."
The simultaneous spread of Christianity in Britain also had a substantial influence
on developments in the Frankish Empire. This process had largely begun under
St Patrick who, upon his return to Ireland years after being held captive there,
succeeded in converting much of the land to Christianity. This influence later
spread to Scotland and to the pagan areas of the Frankish Empire.97 In the
meanwhile, Southern Britain was being evangelised by St Augustine who had
been sent for this purpose by Pope Gregory.98 Although the newly-converted
Northern and Southern Christian groups initially failed to agree on certain
dogmatic issues, the synod of Whitby effectively facilitated the unification of
these two groups with the result that the English and Irish Christians ineluctably
merged with the Roman Catholic Church." These developments played an
instrumental role in the Frankish Empire, where Saxon missionaries such as
Willibrord (later bishop of Utrecht) and Winfrid (later St Boniface ) converted many
of the remaining pagan areas to Christianity and in so doing furthered the
influence of the Catholic Church and the notion of papal suorernacy."? The
Frankish Empire continued to expand throughout this period, and reached its
pinnacle under the reign of Charlemagne (768 - 814),101who, significantly, was
proclaimed Emperor of Rome by Pope Leo III on Christmas Day, 800.102
The early Church based its principles of marriage on the teachings of Christ-
who often used the image of marriage to illustrate the kingdom of God and spoke
out against divorce and adultery103-and the letters of Paul,104who used the
96
Hayes et a/1967: 70.
97
Hayes et a/1967: 87.
98
Hayeseta/1967:87.
99
Hayes et a/1967: 88, 89.
100
Hayes et a/1967: 87.
101
Hahlo and Kahn 1968: 359.
102
Hayes et a/1967: 12l.
103
See the texts cited by Witte 1997: 16 - 17; particularly the Gospel according to Matthew 5: 27-28
and 31- 32; 19: 6 and 8 - 9; 22: 1- 14 and 25: 1 - 13.
22
concept of marriage to illustrate the role and function of the Christian Church by
likening its relationship with Christ to that between bride and bridegroom
respectively.l'" Drawing on these teachings, the Church originally (c 325 AD)
demanded the clergy to practice monogamous sexual restraint, but within a
century the influence of the later Church Fathers had not only escalated the
requirement to celibacy-with marriage often being viewed "as the least virtuous
Christian estate" and sexual intercourse restricted to procreative purposes-but
had also begun to reform the Roman law of marriage and divorce.l'"
In this regard, Hahlo 107 mentions that some of the most notable effects of the
growing influence of Christianity as from the fifth century onwards were that
polygamy and marriage within the prohibited degrees of affinity were outlawed
and that, over and above the consent of her father, the consent of the wife-to-be
also came to be required.l'" It is also interesting to note that even the nature of
the bride-price evolved into a settlement akin to the dos with the aim of providing
for the wife should she survive her husband.l'" In this way Hahl0110 mentions
that it came to resemble a modern-day life insurance policy. The power which a
husband had previously exercised over his wife was also substantially reduced,
an effect of which was that, although they were still subjected to the guardianship
of their husbands, wives became entitled to have estates of their own .111 As far
as religious rites were concerned, it became customary for marriages to be
blessed in a church on the morning after the wedding. This was not, however, a
legal requirement for the validity of the marriage.112
104 See texts cited by Witte 1997: 17 -19.
105 Witte 1997: 16 - 18.
106 Witte 1997: 19, 20.
107 1985: 5.
108 Hahlo and Kahn 1968: 384.
109 Hahlo 1985: 5. In accordance with the reciprocity principle the groom was however still required
to present something to the bride's father as a counter-present-see Hahlo and Kahn 1968: 384.
110 1985: 5 (note 34).
111 Hahlo and Kahn 1968: 385.
112 Van der Vyver and Joubert 1991: 459; Hahlo 1985: 5; Hahlo and Kahn 1968: 384.
23
The developments sketched above leave no room for doubt that by the end of
the 8th century AD the entire Frankish Empire was Christian.l'? The Frankish
king was regarded as the head of the Church, and there was no separation
between Church and State."!" However, during the tempestuous reign of
Charlemagne's son Louis the Pious (814 - 840) the Frankish Empire had begun
to decline, and after his death the Empire was divided in terms of the Treaty of
Verdun (843) amongst Louis's three sons, Lothair (Lothair I), Louis (the German),
and Charles (the Bald).115
By the time of the demise of the Frankish Empire the divide between Church and
State had become more prominent.!" and, moreover, the Pope had by that time
become the head of the Frankish Church."?
3.3 The Middle Ages: The Roman Catholic Church transforms marriage
into a sacrament
The Church began to exercise jurisdiction over matrimonial law in Europe as
from the tenth century AD.118 According to Witte,119 the catalyst for this new-
found jurisdiction was the Papal Revolution in 1075 when, under Pope Gregory
VII (originally known as Hildebrand), the Church began to overthrow the civil
rulers of Western Europe. What followed was the "second watershed period of
the Western legal tradition",12onamely the transformation of the Roman Catholic
Church into "an autonomous legal and political corporation", which literally
acquired the power to "speak the law.,,121This revolutionary conflation of law and
113
Hahlo and Kahn 1968: 367.
114
Hahlo and Kahn 1968: 367.
115
Hayes et a/1967: 122; Hahlo and Kahn 1968: 360.
116
Hahlo and Kahn 1968: 360.
117
Hahlo and Kahn 1968: 368.
118
Fourie v Minister of Home Affairs 2005 (3) SA429 (SeA) at par [70].
119
1997: 22 and 2004.
120
Witte 2004: 4.
121
Witte 1997: 31 and 2004:4. Also see Reid and Witte 1999: 647.
24
theology would contribute to the enduring legacy that the Church's influence has
left on the institution of marriage to this very day.122 As Witte 123mentions:
In the Western world of 1200-1500, the church was not merely a voluntary association
of like-minded believers gathered for worship. Its canon law was not simply an internal
code of spiritual discipline to guide the faithful. The church was the one universal
sovereign of the West that governed all of Christendom. The canon law was the one
universal law of the West that was common to jurisdictions and peoples throughout
Europe. The great nation-states of Western Europe were not yet born. The Holy Roman
Empire was not yet real. In that interim, the Catholic Church with its canon law held
preeminent authority.
The development of the sacramental model of marriage was occasioned by the
refinement and structuring of the Catholic Church's marriage doctrines along with
the systematisation of Canon law.124 This process led to marriage being viewed
from a three-tiered perspective comprising (i) the consensual contractual
undertaking that (ii) was bound by the laws of nature and (iii) was elevated to one
of the seven sacraments of faith.125 As a sacrament, marriage not only resorted
under the jurisdiction of the Church,126 but moreover occasioned a spiritual
transformation of the parties so that sexual intercourse between them was no
longer regarded as sinful and divine intervention could be relied upon in fulfilling
the spouse's marital and parental obllqatlons.""
122 Witte 1997: 23; 30.
123 1997: 30.
124 SeeWitte (1997: 23) who mentions that the most fundamental developments in the former
regard were occasioned by works such as Hughof St Victor's "On the sacraments of the Christian
Faith" (c 1143), Lombard's "Book of sentences" (1150) and Thomas Aquinas's "Summa
Theotoqico" (c 1265 - 1273), while Gratian's Decretum (c 1140) was the first attempt at
systematising Canon law, and assuch constituted the "anchor text of medieval canon law" (Witte
2004: 4).
125 Witte 1997: 23; Da/rymp/e v Da/rymp/e 2 Hag.Con.65; 161 Eng.Rep.1752 - 1865 (16 July 1811)
at 669. The six other sacraments were baptism, confirmation, confession and penance, the
Eucharist,extreme unction for the sickand dying and holy orders-see Hayeset 0/1967: 351.
126 Witte 2004: 4; 1997: 26.
127 Witte 1997: 27.
25
Thus was born the first of the five theological models of marriage that Witte
identifies as having arisen in the Western legal tradition.128 As such, the so-
called "Catholic sacramental model" was based on the idea that marriage is a
unit comprised of three elements, namely the natural, the contractual and the
sacramental. The natural element was based on the idea that marriage is a
union between two natural persons with a view to procreation and providing an
acceptable (albeit not perfect) means of satisfying lustrulness."? The contractual
element comprised the mutual consent of the parties in terms of which they
undertook to be faithful to one another and dutiful as parents. Thirdly, as one of
the seven sacraments, marriage was viewed as a perceptible symbol of the
everlasting spiritual and physical union between God and His Church.P?
It is important however to note that the Catholic model always preferred celibacy
over marriage, with the former being regarded as a condition for ecclesiastical
office and the ultimate proof of spiritual maturtty.!" Therefore, although marriage
was elevated to sacramental status, celibacy was regarded as being the true
path to righteousness, while marriage was simply an alternative "second-best" for
those who required a more acceptable channel for their natural sexual urges.132
Canon law developed from this basic concept of marriage as a composite unit
embodying the three facets mentioned above. As a result, unnatural sexual
relations such as incest and buggery were prohibited (in accordance with the
natural perspective), while monogamous marriages that were based on
consensus that had properly been reached were sanctioned (in accordance with
128
The others are the "Lutheran social model", the "Calvinist covenantal model", and the "Anglican
commonwealth model" (which, together, can be classified as Protestant models) and the
"Enlightenment contractarian model." All of these models will be discussed in this Chapter.
129
Witte 1997: 3.
130
Witte 1997: 26.
131
Witte 1997: 4.
132
See Westermarck 1903: 155 and Witte 1997: 4 who observes that "[t)hose who could not forgo
marriage were not worthy of the church's holy orders and offices. Celibacy was something of a
litmus test of spiritual discipline and social superiority."
26
the contractual perspective), and, furthermore, were regarded as indissoluble
once concluded (in accordance with the sacramental nature of marriage).133
The formation of marriage in Canon law followed three stages.134 The first stage
was the espousal, which, although binding on the parties, could be terminated by
mutual agreement or by unilateral withdrawal provided that there was a good
reason for doing SO.135The second stage was the contracting of the marriage in
the presence of the parties, and the third stage was the consummation of the
marriage by consensual sexual intercourse.l'"
Under Canon law the Roman law pertaining to the incapability of persons below
puberty (impubes) to marry was applied.137
Originally, the marriage ceremony itself took place after the parties had by virtue
of the so-called "consent-talks" between the parties' relatives, friends or the priest
consented to marry one another.I" In later times these talks were held outside
the church, followed by a blessing inside the church.l'" By the sixteenth century
the entire ceremony had been formalised and a ceremony before a priest in the
church became mandatory."? It is however, important to remember that it was
the consent of the parties and not the blessing of the marriage that brought the
marriage into existence.':"
Under the influence of the Catholic Church it came to be required that
consummation of the marriage (copula carnalis) was a requirement for the
133 Rheinstein 2007: 6; Reid and Witte 1999: 686.
134 Witte 1997: 32.
135 Hahlo 1985: 7.
136 Witte 1997: 32.
137 Hahlo and Kahn 1968: 448.
138 Hahlo 1985: 7;
139 Hahlo and Kahn 1968: 448.
140 Merin 2002: 11; Hahlo and Kahn 1968: 448.
141 Fourie v Minister of Home Affairs 2005 (3) SA 429 (SeA) at par (70) - (71); Hahlo 1985: 7.
27
validity thereof,142and there were those who were of the view that consummation
rendered the marriage sacrarnentat.l" However, by the close of the thirteenth
century the prevailing viewpoint appears to have been that the exchange of
promises between the parties was the means by which marriage attained its
sacramental nature, with the result that human intervention could no longer
terminate it.144 This implied that divorce was not permitted in a consummated
marriage, but canon law did provide for the ecclesiastical courts to grant a decree
authorising the parties to live apart by way of a decree of separation of board and
bed (separatio a mensa et thoro) if continued cohabitation became impossible
due to the conduct of the other spouse.!" If the marriage had not been
consummated, it could be dissolved by the Pope or by either of the spouses
entering a monastery or a convent.l'"
As from 1215 the publication of the banns was required in order for the parties to
conclude a "regular" marriage (that is to say a marriage sanctioned by the
Church)."" The purpose of this requirement was to allow family members of the
prospective spouses to prevent marriages of which they did not approve.l'"
Nevertheless, an espousal concluded by mutual consent expressed in the
presence of the parties (sponsalia per verba de praesenti) implied that an "actual
and legal,,149marriage came into existence simultaneously with the espousal (so
that Pollock and Maitland"? term the espousal an "initiate marriage,,).151
142
Hahlo and Kahn 1968: 448.
143
Witte 1997: 27.
144 Witte 1997: 36.
145
Hahlo and Sinclair 1980: 2; Hahlo and Kahn 1968: 449; Hahlo 1985: 8. Grounds for obtaining
such a decree would include adultery or heresy-see Hahlo 1985: 8.
146
Hahlo and Kahn 1968: 449.
147
Fourie v Minister of Home Affairs 2005 (3) SA429 (SCA) at par [70]; Pollock and Maitland 1898(b):
370,371.
148
Van der Vyver and Joubert 1991: 460.
149
Per Sir William Scott in DairympIe v DaIrympIe 2 Hag. Con. 65; 161 Eng. Rep. 1752 -1865 (16 July
1811) at 669.
150
1898(b): 368.
151
DaIrympIe v DaIrympIe 2 Hag. Con. 65; 161 Eng. Rep. 1752 - 1865 (16 July 1811) at 669. In his
judgment in the DaIrympIe case, Sir William Scott criticised the use of the term "sponsalia per
verba de (sic) praesenti" due to the fact that "sponsalia" refers to that which precedes marriage,
and not the marriage itself.
28
Although a marriage without ecclesiastical blessing or publication of banns was
not invalid, a number of disadvantages followed in that the validity and existence
of such an informal or "irregular" marriage had to be proved and that a number of
other penalties ensued .152
By the sixteenth century canon law governed marriage as an institution in the
entire Western Europe.153 Clandestine marriages, however, remained
problematic, and attempts were made by lawmakers to circumvent their
conclusion.!" For example, Article 17 of the Perpetual Edict of 1540 (issued by
Charles V on 4 October of that year) noted that "inconveniences are caused in
consequence of secret marriages,,155and prescribed penalties for the conclusion
thereof.156 Such marriages were nevertheless valid.157 Despite this attempt, the
instance of clandestine marriages appears to have increased.l'"
Eventually, in order to reform the law of marriage and to thwart the conclusion of
marriages concluded in secret, the Council of Trent issued the Decretum Tametsi
(De Reformatione Matrimonii) in 1563, in terms of which the sacramental nature
of marriage was reaffirmed, the publication of banns was made compulsory and
all marriages were required to be solemnised before a priest and at least two
152
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [71J; Ex parte Dow 1987 (3) SA 829
(D) at 831 (G); Dairympie v Dairympie 2 Hag. Con. 65; 161 Eng. Rep. 1752 - 1865 (16 July 1811) at
669; Hahlo and Kahn 1968: 448; Hahlo 1985: 8; Pollock and Maitland 1898(b): 371. The doctrine
of the putative marriage (matrimonium putativum) came to be recognised in terms of which the
harsh consequences of nullity of marriage could be avoided in certain instances, provided that
one or both of the parties were bona fide and that the marriage had been solemnised in
Church-see Hahlo 1985: 8.
153 Merin 2002: 11.
154
Reid and Witte 1999: 678.
155
Ex Parte Dineen and Another 1955 (4) SA 49 (0) at 52 (C). According to Article 17 these
inconveniences could be attributed to the lack of "advicej.] counsel and consent of friends and
relatives of both sides" and that such marriages were not "in accordance with honour and due
obedience, and generally come to a bitter end" (Lee 1931: 56).
156
See the discussion of section 17 in 3.4.6 below. Other penalties also applied-see notes 400 and
401 below.
157
Ex Parte Dineen and Another 1955 (4) SA49 (0) at 52 (C) - (E).
158 Wessels 1908: 443.
29
witnesses."? Contraception and abortion were declared to be contrary to the
primary goal of marriage, namely procreation 160 and the marriage of a minor
without the consent of his or her parents became punishable.l'"
It is interesting to note that Canon law did not concern itself with matrimonial
property law. Instead, this aspect of the law of marriage was viewed as a civil
matter and was therefore left to the secular authorities to regulate.162 No uniform
system of matrimonial property law applied, with the result that the legal
principles took on a cosmopolitan nature and differed from jurisdiction to
jurisdiction, based largely on the particular legal heritage concerned.l'"
3.4 The Reformation and one of its consequences: Roman-Dutch law
The influence of the Catholic Church appears to have reached its zenith during
the thirteenth century.l'" but in the centuries that followed the Church began to
slump into a period of general decline characterised (and exacerbated) by
growing uncertainty regarding the position of the papacy, an increase in the
incidence of heresy and ever-increasing administrative problems.l'" By the
sixteenth century serious cracks were beginning to appear in the Catholic
Church's monopoly over life in Western Europe, and it was only a question of
time before the growing Protestant movement, set in motion by Martin Luther's
nailing of the Ninety-Five Theses to the doors of the church in Wittenburg in
1517,166 began to question tenets fundamental to the Catholic faith.167 In
159
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [71); Exparte Dow 1987 (3) SA 829
(D) at 831 (G) - (H); Witte 1997: 38. Due to the rift that developed between Henry VIII and the
Catholic Church (discussed in 3.4.2.3 below) these requirements were not entrenched in England,
where informal marriages were still recognised well into the is" century-see Merin 2002: 11;
Coester-Waltjen and Coester 2007: 72.
160
Merin 2002: 11.
161
Hahlo and Kahn 1968: 450.
162
Hahlo 1985: 9.
163
Hahlo 1985: 10.
164
Hayes et 0/1967: 325.
165
Hayes et 0/1967: 325.
166
See 3.4.2.1 below.
30
particular, Protestantism began to revolt against the Catholic Church's
conception of marriage as a sacrament that was under its uncontested and
exclusive [urlsdlctton.l'"
In time, the three main Protestant traditions, namely Lutheranism, Calvinism and
Anglicanism each began to develop their own schools of thought regarding, inter
alia, the theological basis of marriage. Although each tradition propagated a
specific "theological formula,,169pertaining to marriage, the common thrust of the
Protestant tradition was the rejection of the Catholic perception of marriage as
one of the seven sacrarnents."? coupled with greater (but varying) recognition of
the role played by the State in the institution of marriage.
For the purposes of this study, it is of cardinal importance to understand the
impact of the Reformation. This is so because of the fact that the Reformation
led to a radical reassessment of the concept of marriage; a development that
occurred both parallel to and (somewhat paradoxically) as a result of, the
development of Roman-Dutch law.
3.4.1 The birth of Roman-Dutch law
The Netherlands formed part of the Frankish Empire and was divided into
provinces and cantons.!" The Northern provinces included Gelderland, Utrecht,
Friesland and Holland, while Brabant and Flanders were in the South. Holland
(comprising North and South Holland as well as West Friesland) was a countship
which had been conferred on Dirk I by Charles the Simple in 922 AD, thus
establishing the House of Holland.172 The counts were powerful overlords, and
167 Hayes et 0/1967: 351.
168 Witte 1997: 42
169 Witte 1997: 2.
170 See 3.3 above.
171 Wessels 1908: 58.
172 Wessels 1908: 58.
31
together with the nobles and the clergy held the balance of power.173 Even
centuries after the Frankish Empire had ceased to exist there was no legislation
of general application in the Netherlands.?" which only appears to have become
a prominent feature of the legal system during Spanish rule (intermittently as
from the mid-fifteenth century until 1648).175 One of the privileges (handvesten)
granted to the so-called "fourth estate" (constituted by the towns)176was the
power to make their own binding regulations, which were later assimilated into
keur- or stedboeken.ï?' According to Sir John Kotzé: 178
If we bear in mind that the provinces and towns in the Netherlands had each their own
laws and customs, and that the development of the law in almost each province was
separate and independent, we can readily understand what necessity there was for
uniformity and how hopeless it seemed to bring about such uniformity of local law and
custom and to transfer them into national common law.
The resultant body of law, rules and customs was not only incoherent and
illogical, but moreover was based on a Medieval legal system that was rapidly
becoming obsolete. The necessity for the introduction of a structured, complete
and reliable system of law was obvious, and Roman law clearly fitted this bill.179
173
Wessels 1908: 57.
174
Lee 1931: 4.
175
Lee 1931: 7.
176
Wessels 1908: 57.
177
Kotzé 1909: 387; Lee 1931: 4.
178
1909: 407, 408. Sir Johannes Gysbert (John Gilbert) Kotzé (1849 - 1940) had a legal career that
was extraordinary in terms both of variation and longevity: He was a Judge of the High Court of
the South African Republic (Transvaal) as from 1877 and later Chief Justice as from 1881 until his
dismissal in 1898 (reputedly "for renouncing his undertaking not to test the validity of legislation
against the Constitution"), after which he returned to the Pretoria Bar. He was appointed as a
Judge of the Eastern Districts Court in 1903, and was Judge President of this Court until 1913.
From here he was appointed as a judge of the Cape Provincial Division in 1913, until his
appointment as Judge President in 1920. In 1922 he was appointed as a Judge of Appeal in 1922
until his retirement in 1927. This information was obtained in Kahn 1999: 167.
179
Kotzé 1909: 408; Lee 1931: 4.
32
The House of Holland established by Dirk I was succeeded by the House of
Henegouwen in 1299, and later by the House of Bavaria in 1345.180 lt is around
this period that the first references to codified Roman law as a supplement to
local custom began to appear in judgments of the High Court in Holland.l'" This
process gained momentum under the House of Burgundy (commenced by Philip
the Good in 1428) which not only "favoured every means calculated to bring
about uniformity in the law,,182but also set in motion the process of steadily
unifying the various provinces into one State.183
Lee184describes the origin of Roman-Dutch law in the following terms:
Derived from two sources, Germanic Custom and Roman Law, the Roman-Dutch law
may be said to have existed so soon as the former of these incorporated elements
derived from the latter.
An "accelerated infiltration,,185of Roman law into the law of Germany and Holland
took place in the fifteenth and sixteenth centuries, with the first official statutory
recognition thereof being mentioned in Holland in 1462 and in Germany in
1495.186 As such, Roman law was applied in the event of indigenous laws and
customs being silent and it therefore enjoyed subsidiary common law status in
both of these territories.l'" However, as these non-codified indigenous laws and
customs were sometimes difficult to access, the codified Roman law occasionally
came to be applied as primary law as a matter of practicality.l'"
180 Wessels 1908: 59.
181 Hahlo and Kahn 1968: 515.
182 Kotzé 1909: 390.
183 Wessels 1908: 59.
184 Lee 1931: 3.
185 Hahlo and Kahn 1968: 515.
186
Hahlo and Kahn 1968: 503 and 516; Lee 1931: 3; Kotzé 1909: 408. In this year a supreme court of
appeal in the form of the Reichskammergericht was established in Germany and was enjoined to
decide matters on the basis of the existing law of the empire and Roman law-see Kotzé 1909:
408.
187 Hahlo and Kahn 1968: 516
188 Van ZyI1983(a): 315.
33
3.4.2 Religious upheavals intervene: The influence of Protestantism and the
resultant Lutheran and Calvinist models of marriage
The House of Burgundy came to an end when Philip the Fair succeeded his
mother Maria (the granddaughter of Philip the Good, who, by marrying
Maximilian I of Hapsburg in 1477 had become the Archduchess of Austria) in
1482 after her unexpected death in a horse-riding accident. Philip the Fair's
father, Maximilian I, had become Holy Roman Emperor-elect in 1508, by which
time Philip had predeceased him. Philip's son-Charles V-succeeded his
father as Duke of Burgundy in 1506. On 28 June 1519 he was elected as
successor to his grandfather (Maximilian) as ruler of the Holy Roman Empire,
and was crowned as such by Pope Clement VII in 1530.189
By the time of Charles V's reign, anti-Catholic religious sentiment in the form of
Lutheranism was beginning to gain support in Germany, and Charles-a
Netherlander by birth-was determined not to allow the same to happen in the
Netherlands."? Attempts to thwart all forms of heresy would culminate in Witte's
"third watershed period in the Western legal tradition" in the form of the
Protestant revolution.
The term "Protestant" is self-explanatory in that it was first used to describe those
who protested against Charles V's 1529 order that the canon law be enforced
against those who dissented against it.191 Although these initial protesters were
of the Lutheran faith, the term later came to be used as a collective description of
all traditions of Western Christendom who distanced themselves from
Catholicism in consequence of the Reformation.192
189
http://en.wikipedia.org/wiki/Charles V. Holy Roman Emperor accessed on 17 July 2009.
190
http://en.wikipedia.org/wiki/Charles V. Holy Roman Emperor accessed on 17 July 2009.
191
Hayes et 0/1967: 354.
192
Sinclair (ed) 2001: 1204; Hayes et 0/1967: 354.
34
Generally speaking, the Protestant models developed from the Catholic
sacramental model193 and as such retained the notion of marriage as embodying
the natural and contractual elements, but rejected the notion of marriage as a
sacrament and as a lesser alternative to celibacy.l'" The major branches of
Protestantism include the Lutheran, Calvinist, Anglican and Free Church
branches.l'"
3.4.2.1 The Lutheran social model
Although at one time an Augustinian friar, Martin Luther (1483 - 1546) became
convinced that man, as a sinful and corrupt being, could be saved only through
faith in God's grace and not, as the Catholic tradition would have it, by faith, good
works and sacrarnents.l'" As a consequence, Luther came to view certain
Catholic practices, such as the granting of indulgences, with particular suspicion.
In terms of this practice, the punishment for sins could be remitted wholly or
partially if certain prescribed religious tasks were performed. Although these
tasks were originally particularly demanding in nature.!" it appears that, in time,
they had become watered-down to such an extent that a simpler act such as a
monetary contribution to a specified religious cause would suffice.198 After a
series of flagrant abuses by the Catholic clergy and their representatives
involving the issuance of indulgences came to light in Wittenberg in 1517, Luther
took the bold step of openly questioning the Catholic faith by posting the well-
known Ninety-Five Theses on the doors of the Church in that city-a move that
was to set the Reformation in full rnotion.l'" Amongst others, Luther argued that
a repentant sinner was pardoned by God and therefore did not require an
193 Coester-Waltjen and Coester 2007: 5.
194 Witte 1997: 4, 5.
195 Witte 2004: 6.
196 Haves et 0/1967: 352.
197
According to Haves et 0/1967: 352 examples of such tasks included pilgrimages and crusades.
198 Haves et 0/1967: 351, 352.
199 Witte 2004: 5.
35
indulgence by the Church.2oo Indeed, over the next few years Luther questioned
the status of the Pope and the nature of the Church as mediator between God
and His creation; instead professing that the Scriptures were the supreme
authority and that only baptism and the Eucharist were to be retained as
sacraments.ê'" Unsurprisingly, this did not endear him to the Pope and the
Catholic Church, and Luther was excommunicated at the Diet of Worms in
1521.202
Luther's message of reform spread throughout Germany and the movement
against the Roman Catholic Church intensified (particularly after the German
Peasants' War of 1524),203 so much so that two distinct parties, Catholic and
Lutheran, subsequently emerged in what only a decade or so earlier had been
the almost exclusive domain of the Roman Catholic Church.204 Although an
uneasy peace accord was struck between these two factions in 1555,205
Lutheranism continued to spread beyond German borders and throughout
Europe.206
In particular, Luther launched a fierce assault on the canon law perception of
marriage and the total dominance wielded over this institution by the Roman
Catholic Church.207 Much of this criticism appears to have been fuelled by the
prevailing social ills and the apparent inability of the Roman Catholic model to
address, counter or explain them. As Luther argued, the institution of marriage
"ha[d] fallen into awful disrepute" by instances of immorality, rape and incest; and
the premium placed on celibacy by the Catholic Church and its "accursed papal
200
Haveseto/1967:353.
201
Haveseto/1967:353.
202
Haves et 0/1967: 353.
203
The so-called "Deutcsher Bouernkrieg."
204
Haves et 0/1967: 354.
205
Amongst others, the Peace of Augsburg of 1555 permitted each ruler to determine the religion of
his people-see Haves et 0/1967: 354.
206
Haves et 0/1967: 354.
207
Witte 1997: 42.
36
law" often dissuaded people from marrying, or prompted parents to coerce their
children into becoming priests or nuns instead of opting for marriage.208
The Lutheran model of marriage proceeded from the basis that a distinction had
to be drawn between the kingdoms of heaven and earth; and that it was
fundamental to realise that the institution of marriage formed part of the latter.209
For the Lutherans, the Roman Catholic Church had usurped marriage as an
institution and had incorrectly bestowed upon it a sacramental character instead
of recognising it for the "social estate of the earthly kingdom of creation" which it
really was; an institution that, although divinely ordained, was not sacramental in
nature and was aimed at the fulfilment of social needs and therefore subject to
the jurisdiction of the State as opposed to that of the Church."? For this reason,
marriage was placed under the legal authority of the State and its formation and
termination were brought into the public sphere.i" Nevertheless, the Church still
had a valuable role to play in counselling both prospective spouses and the
secular authorities and, at the same time, complementing the latter by
"publicizing and disciplining,,212 marriage.213 As Westermarck214 observes
"[m]arriage certainly ceased to be thought of as a sacrament, but continued to be
regarded by the Protestants as a Divine institution; hence sacerdotal nuptials
remained as indispensable as ever." The major difference was, however, that
God's law was to be administered by the State, as marriage was deemed to form
part of the earthly kingdom. Divorce was therefore allowed, as marriage was not
a sacramental union that formed part of the heavenly realm.215 Moreover, the
208 PerWitte 1997: 47.
209 Witte 1997: 5; Raath 2009: 14.
210 Witte 1997: 5; Westermarck 1903: 428.
211 Witte 1997: 6.
212 Witte 1997: 6.
213
Witte 1997: 6. See Raath (2009: 6): "Marriage is the lawful and divine union of one man and one
woman. It has been ordained for the purpose of calling upon God, for the preservation and
education of offspring, and for the administration of the church and the state. Marriage is the
first and chief thing; for it is the beginning and origin of the whole life." (LW 5: LG [Luther's
Works (volume 5), Lectures on Genesis] (Genesis 28: 2)).
214 1903: 428.
215 Witte 1997: 6.
37
premium placed on celibacy by the Catholic tradition was removed, with the
result that clerics were free to marry. Nonetheless, many important principles of
canon law such as those pertaining to morality were retained.216
3.4.2.2 The Calvinist covenantal model
The third model proposed by Witte stems from the Calvinist tradition-the second
chief sub-division of Protestantism. John Calvin (1509 - 1564) was born in
Noyon, France and trained as both a priest and later as a jurist.217 In his early
twenties he experienced a religious conversion which led him to renounce
Catholic teachings in an attempt to regain, as Hayes et al describe it,218the
"purer Christianity" as he believed it once to have existed prior to the influence of
Catholicism.U'' Published in 1536, Calvin's seminal work, The Institutes of the
Christian Religion, professed a faith that was based purely on the Scriptures and
was almost completely devoid of the Catholic sacraments.F? As the French
monarch was a staunch supporter of Catholicism, Calvin elected to leave his
native France and to settle permanently in Switzerland.221
As mentioned above, Calvin's teachings were based on an attempt to return to a
purer and simpler Christianity. As such, church services were remodelled so as
only to include practices expressly sanctioned by the Bible, and a puritanical way
of living-which promoted moral rectitude, sobriety and clean living-came to be
encouraged.222 Calvin's motto-cor mactatum in sacrificium offero (I bring my
heart as an offering)-reflected his view that those who acknowledged God's
216
Witte 1997: 6.
217
Hayes et 0/1967: 355.
218
Hayeseto/1967:355.
219
Hayes et 0/1967: 355.
220
Hayes et 0/1967: 355, 356.
221
Interestingly, Calvin's work was dedicated to the French monarch (Francis I), who was a staunch
supporter of Catholicism, in an ostensible (but unsuccessful) effort to convert him-see Hayes et
0/1967:355
222
Hayeseto/1967:356.
38
authority understood that every aspect of life was based on Biblical principles
and that all of Creation was to seek to honour God.223
As far as marriage was concerned, the Catholic notion of marriage as a
sacrament was, as had been the case in the Lutheran tradition, once again
rejected. Instead, Witte states,224 the Calvinists viewed marriage as a
"covenantal association" involving not only God and the spouses in a tripartite
agreement, but also the entire community including their parents (the consent
givers), the witnesses to the marriage (the spouses' spiritual peers), the minister
(who blessed the union) and the magistrate (the registrar and legal protector).
For Calvin and his followers the institution of matrimony therefore involved each
of these parties forming part of the covenant and portraying varying but essential
divinely-determined roles; all of which were governed by God's over-arching
moral law.225 This law comprised complementary civil and Christian spiritual
norms, enforced by the State and the Church respectively and therefore not, as
the Lutherans would have it, solely by the State.226 This implies that the
covenantal view of marriage bridged the strict divide between the earthly and
heavenly kingdoms observed by the Lutherans, "by [adding] a spiritual dimension
to marriage life in the earthly kingdom, a marital obligation to spiritual life in the
heavenly kingdom, and complementary marital roles for both church and
state.,,227Witte228illustrates this two-way process as follows:
In marriage cases, the consistory [ecclesiastical court] was the court of first instance; it
would call the parties to their higher spiritual duties, backing their recommendations
with (threats of) spiritual discipline. If such spiritual counsel failed, the parties were
referred to the city council to compel them, using civil and criminal sanctions, to honor
at least their basic civil duties for marriage.
223 Gaum 2009.
224 Witte 1997: 7.
225 Witte 1997: 7.
226 Witte 1997: 7.
227 Witte 1997: 8.
228 1997: 8.
39
The Calvinistic model of marriage placed considerable emphasis on the voluntary
consent of the parties thereto, and on ensuring that parties were fit for marriage,
with the result that the process was communal and transparent from the outset
and that disputed betrothals were more common than divorces.229 Once entered
into, betrothals were binding.23o A formal church ceremony had to follow the
betrothal and civil registration of the marriage.231 A properly contracted marriage
was presumed permanent, and annulments or divorces-while not easily granted
to begin with-involved the public and were granted in open Courts. An
annulment was possible in the event of the marriage being void ab initio without
the knowledge of either or both the parties (i.e. a putative marriage) or on
grounds such as incurable disease, impotence or the discovery by a husband
that his wife had not been a virgin at the time of the marriage.232 Divorce was
only granted in limited circumstances, and pre-eminence was always placed on
reconciliation where possible (Wate33 recounts a letter written by Calvin in which
he instructs a Protestant woman to continue to live with her abusive Catholic
husband unless her life was endangered). The only grounds of divorce were
adultery or desertion, and only a completely innocent spouse could sue for
divorce.234
Civil administration was dominated by the Consistory and under Calvin's
influence Geneva became a theocracy; a fact that attests to the profundity of
Calvin's influence as a reformer.235 Calvinism later spread throughout Europe,
where churches established by adherents thereto became known as "Reformed
Churches"; notably in Germany and the northern Netherlands.f" In France-
Calvin's homeland and a Catholic stronghold under Francis I-religious wars
raged for years until the Edict of Nantes of 1598 granted Protestants the right to
229 Watt 2006: 326.
230 Watt 2006: 327.
231 Witte 1997: 84, 85.
232 Witte 1997: 85, 86.
233 2006: 327.
234 Witte 1997: 85, 86.
235 Hayes et 0/1967: 356.
236 Hayes et 0/1967: 357.
40
practice their religion and to participate in private and (albeit limited) public
worship.237 Calvin's theological doctrines and views on authority were later to
play a particularly important role in the political scene in South Africa in the Boer
Republics and the later influence of Afrikaner Christian-Nationalisrn.P" This
aspect will be embroidered upon later.
3.4.2.3 The Anglican commonwealth tradition
3.4.2.3.1 Introduction
In as far as matrimonial matters are concerned, the Catholic Church began to
make its influence felt on English soil as from the 7th century onwards,
particularly with regard to aspects such as incest and prohibited degrees of
relationship.239 According to Pollock and Maitland240 ecclesiastical rules
pertaining to marriage and its dissolution appear to have been enforced by
Archbishop Theodore from these times but, interestingly, the notion of marriage
as an indissoluble union was not applied strictu sensu; a fact that is probably
partially due to certain allowances made for the Germanic customs regarding
divorce. A few centuries later, during the reign of Canute the Great (King of
England from 1016 - 1035), Christian marriage legislation was enacted in terms
of which the bishop adjudicated on matters such as adulterous conduct.ê"
Moreover, after William the Conqueror defeated the last Anglo-Saxon King of
England (Harold Godwinson or Harold II) in the Battle of Hastings in 1066, the
Norman influence began to permeate the law of marriage,242 and within two
decades William placed the law of marriage under the jurisdiction of the
Ecclesiastical CourtS.243The Church's influence in this regard increased, and by
237 Hayes et 0/1967: 357 - 359.
238 Sachs 1973: 70 et seq; Robinson 2005: 489 (note 3).
239 Pollock and Maitland 1898(b): 366.
240 1898(b): 366.
241 Pollock and Maitland 1898(b): 367.
242
For example, see Pollock and Maitland 1898(b): 367, 370.
243 Coester-Waltjen and Coester 2007: 72.
41
the twelfth century English law firmly reflected the view that marriage
"appertained to the spiritual forum" and was thus governed by canon law.244
Nevertheless, marriage was based on consensus (consensus facit nuptias), with
no ecclesiastical blessing being essential for the validity thereof.245 This much is
substantiated by the case of Richard of Anesty that was preceded by a
matrimonial dispute (c 1143) in which a second marriage that had been
ecclesiastically blessed and which had produced offspring was annulled in favour
of a prior marriage concluded solely on the basis of verbal consent.246
By the time that Henry VIII (1509 - 1547) acceded to the throne of England,
Catholicism was firmly entrenched as the dominant religion. Indeed, the English
monarch was among the first vehemently to defend Catholicism against Martin
Luther's teachings, an effort for which Pope Leo X bestowed the title of
"Defender of the Faith" upon him in 1521. However, when Henry conspired to
have his marriage to his wife, Catherine of Aragon, annulled, he ran into difficulty
due to the fact that his marriage had received papal authorisation years before,
and the incumbent Pope (Clement VII) was, for political and other reasons,
hesitant to attempt to grant the annulment sought.247 After years passed with no
decision being taken, Henry became incensed by what he regarded as an abuse
of power by the Pope, so much so that he set about forcing a split between the
Catholic Church and the English monarchy by formally declaring himself the
supreme earthly head of the Church of England in 1534.248 It is to be noted that
this schism did not imply that Protestant doctrines were embraced in totality by
Tudor England. Indeed, with the exception of papal supremacy, fundamental
Catholic doctrine was adhered to despite Henry's feud with the Church; a fact
that was reaffirmed by the "six articles" promulgated by the English Parliament in
244
Pollock and Maitland 1898(b): 367.
245
Coester-Waltjen and Coester 2007: 72; Pollock and Maitland 1898(b): 370, 371.
246
Pollock and Maitland 1898(b): 367.
247
Hayes et 0/1967: 361, 362.
248
Hayes et 0/1967: 362.
42
1539.249 Moreover, severe penalties were meted out to anyone who disputed
Henry's revised Catholic doctrines.25o
Importantly, the rift between England and the Catholic Church which had
developed as a result of Henry VIII's marital shenanigans meant that the
reformative measures occasioned by the Council of Trent in 1563 were not
applied on English soil.251 As a result, the formal ecclesiastical blessing of
marriages, while serving as a means of publicising the marriage, appears only to
have been required in the event of property disputes; a position that obtained for
the most part until 1753.252
Henry's nine year old son Edward VI succeeded to the throne in 1547 and under
the new King Protestantism gained a greater foothold in England, with the result
that a number of practices and doctrines fundamental to the Catholic faith were
adapted in such a way as to reflect Protestant beliefs.253 This period of
Protestant pre-eminence was, however, short-lived, and when Edward VI's half-
sister Mary succeeded him as the English Monarch after his death in 1553 the re-
establishment of the breached ties with the Catholic Church was foremost on the
agenda; a task that, accompanied by much bloodshed, led to the restoration of
Papal supremacy coupled with the repeal of the legislation which her father had
caused to be enacted two decades earlier and the re-instatement of laws against
heresy.254
However, Mary died only five years later and, as she was heirless, she was
succeeded by her half-sister Elizabeth, a pro-Protestant Monarch who was to re-
establish the Anglican faith and to mould it into much of what it remains to this
249 Hayes et 0/1967: 362.
250 Hayes et 0/1967: 362, 363.
251 Coester-Waltjen and Coester 2007: 72.
252
See Coester-Waltjen and Coester 2007: 72 who mention that this state of affairs was interrupted
by the republican revolution (1649 - 1660).
253 Hayes et 0/1967: 363.
254 Hayes et 0/1967: 364.
43
day.255 Although pro-Protestant in the main, Elizabeth retained many icons of the
Catholic faith, with the result that the Church of England "while embracing a
modified Protestant theology, retained all the outward form of Catholic
organization, save only the pope.,,256As such, Elizabeth remained the supreme
ruler of the Church of England; a fact that was reinforced in that, for a time, any
attempt to promote Catholicism (and hence Papal supremacy) was regarded as
an act of high treason justifying capital punishment. In time, however, recusant
Catholics and dissident Protestants were permitted to practice their faith more
freely.257
The entrenchment of Anglicanism in England can however be attributed to more
than just Elizabethan politics and religious views. Coinciding with the
resuscitation of Anglicanism, Elizabethan England entered into a period of
resurgence that encompassed enormous economic, social, political and
intellectual prosperity-aspects that created immense pride in all things English.
Set against this backdrop, it is easy to understand why Elizabeth's modified
Anglicanism came to be viewed as an element of this national pride; a factor that
undeniably contributed to its acceptance and sustainabillty.P"
The developments outlined above provide the background to the fourth model of
marriage identified by Witte, namely the Anglican commonwealth tradition. The
reforms to matrimonial law as initially occasioned by Henry VIII's schism
"triggered an explosion of new Protestant literature in England both on marriage
and its dissolution and on the canon law of marriage and its reformation" in turn
prompting a series of legal reforms.259 However, the tug-af-war between
255
Hayes et 0/1967: 365.
256
Per Hayes et 0/1967: 365. Also see Witte 1997: 131.
257
Hayes et 0/1967: 365, 366. Despite Elizabeth's return to Protestantism, not all Protestants were
convinced that Elizabeth's modified Anglicanism was sufficiently removed from Catholicism, and,
by establishing movements of their own, these dissidents, including the English Calvinists (or
"Puritans") and the Brownists (or "Congregationalists") later played no small role in political and
other developments both in England and abroad-see Hayes et 0/1967: 366.
258
Hayes et 0/1967: 366, 367.
259
Witte 1997: 131; 140.
44
Catholicism and Protestantism in the years following Henry's death had
displaced many of the ecclesiastical reforms so occasioned, and by the time of
Queen Elizabeth's reign "much of the marriage law of the medieval Catholic
tradition" had been reintroduced.F" Nevertheless, during her reign both a
revised Book of Common Prayer of 1559 and the Thirty-Nine Articles of Religion
(1571) were promulgated; the combined effects of which were that only Baptism
and the Eucharist were recognised as sacraments, that Parliament (albeit
indirectly) approved clerical marriages, that the publication of banns was
required, and that marriages were required to be solemnised as a public event in
a parish church.261 Nevertheless, the Catholic canon law as it had existed prior
to Henry VIII's schism-and, as a result of which unaffected by the Decretum
Tamesti of 1563-continued to govern the institution of matrimony in England,
with the result that compliance with the banns requirement or participation in a
religious ceremony were not essential in order to constitute a valid marriage, but
rather facilitated proof thereof.262
The canon law of marriage was adapted by the Canons and Constitutions
Ecclesiastical in 1604. To begin with, the Canons of 1604 tried to prevent the
conclusion of secret marriages by reaffirming the requirements of banns, church
solemnisation and parental consent for persons under the age of 21.263
However, the Canons made provision for prospective spouses to be absolved
from these requirements by obtaining a licence to this effect from an authorised
cleric. This procedure was soon abused so that the legislation's intended
purpose was easily frustrated by the creation of an "underground marital
industry.,,264 As far as dissolution was concerned, the Canons tightened up the
procedure regarding divorces and annulments, and maintained the position in
terms of which divorced spouses were permitted to separate from bed and board
260 Witte 1997: Bl.
261 Witte 1997: 155; 159.
262 Coester-Waltjen and Coester 2007: 72; Witte 1997: 159, 160.
263 Glendon 1977: 33; Witte 1997: 16l.
264
Per Witte 1997: 161, 162.
4S
but were prevented from remarrying.265 On the other hand, an annulment
entitled the erstwhile spouses to remarry, but disentitled a woman from insisting
on her dower (claim from the marital estate).266 Faced with these unfavourable
alternatives, Witte267 mentions that women were often discouraged from
attempting to extricate themselves from marriages where abuse or adultery was
rife, but the eventual practice of awarding alimony to a woman who found herself
in such a position did much to improve this unfortunate state of affairs.
3.4.2.3.2 The commonwealth tradition
By the seventeenth century it appears that theologians were generally ad idem
that marriage, although ordained by God, was not a sacrament.268 However, the
statutory acknowledgment of this conception of marriage as far back as 1571269
and reaffirmation thereof in 1604270 led to increased pressure for a definitive
explanation as to why complete or absolute divorce (as opposed to mere
separation from bed and board) could not be countenanced in the light of this
fact. Witte271 opines that the commonwealth tradition as propagated by
theologians such as Perkins, Cleaver and Gouge, aimed to point the way
forward.
The Commonwealth tradition, which was spawned by the process of theological
reform that had begun with Henry VIII's schism and later gained momentum
during the turbulent reign of the Stuarts, proceeds from, acknowledges and
encompasses the three models explained above while viewing marriage as
serving as the divinely-ordained bed-rock and seminary of the cornrnonweatth?"
265 Witte 1997: 162.
266 Witte 1997: 163.
267 1997: 163, 164.
268 Witte 1997: 165.
269
The Thirty-Nine Articles of Religion of 1571.
270
The Canons and Constitutions Ecclesiastical of 1604.
271 1997: 167.
272 Witte 1997: 131.
46
As such, Witte273states that the main purpose of marriage was to constitute a
"little church, and a little commonwealth" (consisting of the family) which was
divinely tasked with instructing the "broader commonwealth" (consisting of
Church, society and State) regarding core "Christian and political norms and
habits." Therefore, marriage was also initially used as a means of explaining the
hierarchical structure to which society ascribed: The "little commonwealth," with
its hierarchy of husband over wife and parent over child, could fit into (and indeed
be mirrored by)274the "broader commonwealth" where the Church exercised
authority over the family, while the State was superior to the Church.275
According to Cleaver, the interdependence between these commonwealths is
borne out by the fact that the paterfamilias, in carrying out his responsibility to
instruct and discipline his family, not only played an instrumental role in assisting
State and Church officials in their tasks and therefore maintaining civil order, but
also demonstrated that he possessed the necessary understanding, knowledge
and skill required to govern the broader commonwealth, for "[i]t is impossible for
a man to vunderstand to gouerne the common-wealth, that doth not knowe to
rule his owne house ... ,,276
In this way, the commonwealth tradition aimed to rationalise the prohibition on
absolute divorce: To tamper with the very nature of things by permitting a
marriage to be broken for any reason other than expressly provided for in God's
divine law was, in effect, to break the "little commonwealth" which constituted the
very foundation of the broader English cornmonwealth.?"
The ecclesiastical Courts continued to exercise jurisdiction over the institution of
marriage well into the mid seventeenth century. However, the English
273 1997: 8, 9.
274
See Witte 1997: 171 who cites Sir Robert Filmer's (1588 -1653) statement that "[ilf we compare
the natural duties of a father with those of a King, we find them to be all one, without any
difference at all but only in the latitude or extent of them."
275 Witte 1997: 131.
276 Per Witte 1997: 170.
277 Witte 1997: 175.
47
Revolutions that occurred during the tempestuous reign of the Stuarts due to the
perceived abuse of power by the monarchy278would have a drastic impact on
English society in general and its perceptions of marriage in particular. In order
to understand the reasons for this change, it first necessary to consider the
historical developments that occurred after the demise of the Tudor reign.
3.4.2.3.3 The Stuart dynasty: Volatility and absolutism
The reign of the Stuarts commenced when James VI of Scotland succeeded
Queen Elizabeth as James I of England in 1603. Although the new King of
England was intent on entrenching the supremacy of the monarchy, he faced a
number of difficulties, including the fact that he was perceived as a foreigner, that
he was considered to be a spendthrift in a time of financial difficulty and that the
absolute power for which he strove was curtailed by a combination of the
parliamentary and legal systems of the time.279 Indeed, throughout his reign,
King James had an uneasy relationship with Partlarnent.""
As far as his religious views were concerned, James I supported the Anglican
reforms that had been occasioned by his predecessors, and, as such, was a
staunch adherent of monarchical supremacy in religious matters.ê" However,
although Anglicanism had firmly been established and embraced by the time of
Queen Elizabeth's demise, its fundamental doctrines were being met with
increasing opposition from within its ranks by those who advocated Calvinist
beliefs.282 These opponents were categorised chiefly as Puritans and
fundamental Calvinists. While the former group was so named due to its
278
Witte 1997: 176.
279
Hayes et 0/1967: SOl.
280
See Hayes et 0/1967: 503 for a complete description.
281
Hayes et 0/1967: SOl.
282
Hayes et 0/1967: 502, 503.
48
attempts to "purify" the Anglican faith,283 the latter group championed
Presbyterianism or Congregationalism as the preferred faith of England.
Nevertheless, despite these differences in theological doctrine, both of these
groups advocated religious beliefs that were "purged" of all things Catholic.284 At
the request of the Puritans, King James sanctioned a new English translation of
the Bible which appeared in 1611. Despite this, the King continued to be viewed
as a supporter of Catholicism; a belief that was intensified by his perceived
attempts to remain on friendly terms with the Spanish at all costs. Matters did
not improve under the reign of Charles I, King James's son who succeeded him
in 1625. From the outset, the new King incensed the Puritans by marrying a
French Catholic princess and by adhering to Anglican beliefs that were intensely
formalistic and reminiscent of Catholicism.285 Furthermore, by 1629 his
relationship with Parliament had reached such a state of disintegration that he
resolved to rule England on his own; a state of affairs that persisted for more
than a decade. Undoubtedly fuelled by this new-found carte blanche, Charles
gained firm control of the judiciary and initiated a number of almost draconian286
-and at times fanciful287-financial policies that did little to endear him to his
subjects. In addition, religious conflict was fuelled by the ever-growing Catholic
influence on Anglican practices; and was inflamed when Charles attempted to
impose Anglicanism on Presbyterian Scotiand.288
By 1640 England had, for all intense and purposes, virtually become an absolute
monarchy. However Charles's Scottish policies proved to be the beginning of the
end for this process when his failed attempts to quell the rebellion in Scotland
283
As an example of this, Hayes et al (1967: 503) mention the fact that the Puritans viewed the
custom of exchanging rings at marriage ceremonies as a Catholic practice that was not in keeping
with their beliefs.
284 Hayeseta/1967:s03.
285 Hayes et a/1967: 504.
286
Charles I reinstated feudal laws and began to monopolise trading practices-see Hayes et al
1967: 504.
287
In this regard, the example of "ship money" is cited by Hayes et al (1967: 505). Although entitled
to revenue and ships from seaside towns, Charles determined to collect contributions from
inland towns as well.
288 Hayes et a/1967: 505.
49
eventually forced him to attempt to convene an English Parliament.289 This failed
to resolve the problem posed by the Scottish rebellion and the newly-established
Parliament was disbanded less than a month after it had been formed.29o Under
the guidance of a number of Puritan leaders this second Parliament gradually
began to curtail the King's powers and to assume greater powers for itself.291
Matters came to a head two years later when the King attempted to reassert his
authority by personally appearing in Parliament and demanding the arrest of
certain of his opponents. A rebellion ensued that pitted Parliament against the
Crown; and thus the radical anti-Anglican "Roundheads" against the royalist
"Cavaliers", eventually leading to full-scale civil war.292 Despite initial royal
victories, the Parliamentary army's conquest of 1644 led to the abolition of many
Anglican traditions and practices and a shift towards Presbyterianism. Although
the religious and political landscape in England had been drastically altered, the
Presbyterians appear to have been content to permit Charles to continue to
occupy the throne. This moderate approach does not appear to have sat well
with the more radical Congregationalists (or Independents) who not only were
staunchly Anti-Anglican but also approved neither of Presbyterianism nor of the
latter group's intention to restore Charles to power. Under Oliver Cromwell (1599
O.S. - 1658 O.S.) the Congregationalists formed the so-called "New Model" army
that defeated Charles the following year. Presbyterians were ousted from
Parliament and the new exclusively Congregationalist government had Charles
executed in early 1649.293 England was now without a Monarch and was
declared to be a republican "commonwealth and free state",294and after his
appointment as supreme commander of the Parliamentary army in 1650,
Cromwell embarked upon a virtual dictatorship that was cemented by 1651 in the
wake of successful conquests over the Irish and Scottish rebels.295 Indeed,
289 Hayeseto/1967:S0S.
290 Hayeseto/1967:S0S.
291 Hayeseto/1967:S0S.
292
Witte 1997: 176; Hayes et 0/1967: 505, 506.
293 Hayes et 0/1967: 507.
294 Witte 1997: 176.
295
Witte 1997: 176; Hayes et 0/1967: 507, 508.
50
Cromwell's dictatorial style coupled with developments such as that he had
himself declared "Lord Protector" of England for life, implied that "although it
started out to 'withstand the fierce licentiousness of kings,' [Puritanism's] leader,
Oliver Cromwell, himself became an absolute monarch in everything but
name.,,296 This notwithstanding, Cromwell was an astute leader under whom
commerce, trade and industry in England ftourished.?" Furthermore, one of the
most important results of the Puritan influence was that, ever since the early
1640's, England was placed on a steady road towards embracing Parliamentary
supremacy.F'"
Cromwell's death in 1658 paved the way for a re-constituted and freely-elected
Parliament and, equally significantly, the return of the exiled Stuart family-in the
person of Charles II-to the English throne in 1660.299Anglicanism was restored
to power and Charles II promised to steer clear of the royal despotism that had
categorised his father's reign.30o Although his twenty-five year reign was an
uneasy one typified by excesses and a complete deviation from the moral
severity of Cromwell's government, the English people continued to favour the
monarchy, most likely in fear of the alternative of another civil war.301 However,
under the pro-Catholic James II-who succeeded his brother Charles II-abuse
of royal power intensified.302 Indeed, James's attempt to revert to the practices
of pre-1640 England led to him being forced, in the wake of such despotic
abuses coupled with the fear of the possibility of a Catholic successor to the
throne,303 to flee to France as a result of the "Glorious Revolution" of 1688.304
296
Berman 1983: 28. Also see Haves et a/ 1967: 508: "Cromwell's power was more absolute than
that of Charles I had ever been."
297
Haves et a/1967: 508.
298 Berman 1983: 27.
299 Haves et a/1967: 508.
300 Haves et a/1967: 508.
301 Haves et a/1967: 51l.
302 See for example Bryson 1984: 645.
303
Although James II had two Protestant daughters, his second marriage to Marv of Modena-who
was a Roman Catholic-had produced a son, who it was feared would be reared in the faith of his
mother-see Haves et a/1967: 511.
304
Witte 1997: 177; Haves et a/1967: 511.
51
His daughter Mary and her Dutch husband William III succeeded to the throne as
joint sovereigns in 1689.305 This development, brought about by an increasingly
robust Parliament, finally broke the back of the absolute rule of the monarchy in
England and ensured that Parliamentary supremacy would henceforth be the
order of the day.306 Moreover, although Parliament consisted largely of the
aristocracy, this new system did much to protect the rights of all English citizens
by the enactment in 1689 of both the Bill of Rights (which, amongst others,
required respect for freedom of speech and demanded the free election of
Parliament) and the Act of Toleration which permitted non-Anglican Protestants
to associate and to worship freely, although, it must be emphasised, did not
permit Catholics to do the same_3°7 By the Act of Settlement, 1700 the
independence of the judiciary-subjected only to Parliament-was confirmed.308
The lasting impact of the Glorious Revolution is nicely summarised by Berman309
who states that this revolution "ended almost fifty years of acute civil strife, and
established a system of government which survived into the twentieth century."
3.4.2.3.4 A remodelling of the commonwealth model
The increasing recognition of the principles of equality and liberty in the decades
following the Revolution of the 1640's demanded that the traditional hierarchy
that was previously viewed as being determined by natural order make way for a
democratised hierarchy that instead was created by individuals freely contracting
with one another of their own volition thereby leading to the creation of reciprocal
obligations within this hierarchy and corresponding mechanisms to counter
305 Witte 1997: 177; Hayes et a/1967: 511.
306 Berman 1984: 591. It must however be remembered that the curtailment of royal power was
not utterly new. In this regard, Bryson (1984: 647) points out that such measures had already
been introduced by the Magna Carta of 1215, the Statute of Mar/borough of 1267 and the
Confirmatio Cartarum of 1297.
307 Berman 1984: 592; Hayes et a/1967: 512; Glendon et a/1982: 155.
308 Glendon et a/1982: 155.
309 1984: 591.
iJV - ur'.
_i\''' \...1 :Y
52
abuses of power within them.31o As such, the Biblical duties which earlier had
represented the basis of the interlocking commonwealth relationships were
remodelled as contractual relationships between the parties thereto.i" This
newly-conceived commonwealth model, with its revolutionised hierarchy of
marriage, society and State, eventually also led to reforms in the marriage laws
of England.312 Furthermore, although the statute that originally embodied some
of these changes was repealed less than a decade after the resumption of the
Stuart dynasty in 1660, a number of important changes that it had occasioned
pertaining specifically to marriage and divorce were retained and in this way
continued to permeate English culture.313 More importantly, this revised model of
marriage with its emphasis on equality and contractual freedom was instrumental
in providing a platform upon which the fifth model identified by Witte could be
established.
3.4.3 Moving ahead: Marriage as a contract in consequence of the Age
of Enlightenment
The Enlightenment is held to be the source of critical ideas, such as the centrality of
freedom, democracy, and reason as primary values of society. This view argues that the
establishment of a contractual basis of rights would lead to the market mechanism and
capitalism, the scientific method, religious tolerance, and the organization of states into
self-governing republics through democratic means. In this view, the tendency of the
philosophes in particular to apply rationality to every problem is considered the
essentra. I cahnge. 314
310 See Witte 1997: 132: "Just as the English commonwealth could be rent asunder by force of arms
when it abused the rights of the people, so the family commonwealth could be put asunder by
suits of law when it abused the marital rights of either spouse. Just as the King could be relieved
of his head for abuses in the English Commonwealth, so the paterfamilias could be removed
from his headship for abuses in the domestic commonwealth" (italics added).
311 Witte 1997: 9; 132.
312 Witte 1997: 132.
313 Witte 1997: 132.
314 http://en.wikipedia.org/wiki/Age of Enlightenment#lnfluence (accessed on 28 September
2009). Also see Mautner (ed) 2000: 167 - 169 for a general discussion.
53
The foremost philosophe of his day was the Frenchman Franclos Arouet (also
known as Voltaire 1694 - 1778) who advocated rationalism over what he and his
followers believed to be the exploitative, tyrannical and superstitious beliefs
enforced upon mankind by the Catholic Church, and compounded by a societal
structure ruled by the idle arlstocracy.ê" The influence of Enlightenment thought
was however not restricted to theological debate but also found expression in the
propagation of natural law so that
[t]he whole universe could now be regarded as a Newtonian machine, perhaps originally
created by God, but left by Him to function according to the rules He had established ...
Nature, as man saw it, was the outer aspect of this world machine. What was natural
was good. Everything worked out for the best if left alone. Man must not interfere. He
must not try to go against nature. His laws should be merely explanations and
declarations of what was natural ... Man could find out about natural law, and the
workings of nature could be discovered and understood by human reason, as Newton
had found out about gravitation. Man should trust his reason. What was rational was
good. What was irrational or merely traditional was bad ... Man should treat man in a
humanitarian fashion.316
A focus on the individual and equality of man ensued, so that, under the
influence of the humanists, the celebration of humankind and its capacities-as
a direct outflow of God's endowment on humankind of creative capability-was
viewed as a more "appropriate" form of worshipping the Almighty.317 The
increased focus on the individual coupled with the growing influence of the
increasingly affluent merchant class meant that "individualism, freedom and
change replaced community, authority and tradition as core European values.,,318
As Brians319mentions, although religion survived, the transformation which both
religion itself, the aristocracy and monarchial supremacy experienced due to
315
Brians 1998: 1; Hayes et 0/1968: 486.
316
Hayes et 0/1968: 489.
317
Brians 1998: 2.
318
Brians 1998: 5.
319
1998: 5, 6.
54
Enlightenment thinking was undeniable. As monarchical supremacy in England
had already been severely dented in the wake of the developments in the 1600's
explained above, the effects of this revolution had irrevocably placed England on
the road to democracy so that the volatile consequences of the manifestation of
these new views in France a century later could be avoided.32o Nevertheless the
developments in England were to play a vital role in the changes that were to
take place in American societl21 which, as will be seen below, will for the
purposes of this study be used as an example of the influence of the Age of
Enlightenment on marriage. It is against this backdrop that the continued
development of the four major Catholic and Protestant models of marriage-
dispersed and applied throughout the territories in which Western law322-must
be understood.
The effects of the Enlightenment of the eighteenth century notwithstanding, it is
interesting to note that-admittedly with variations-the Catholic and Protestant
models as they had existed in the sixteenth century still featured strongly in both
English and American marriage legislation of the early twentieth century, with the
crux of these models implying that marriage was perceived as a stable and
enduring monogamous union between two heterosexual adults "designed for
mutual love and support, and for mutual procreation and protection" that was
required to comply with formal and religious precepts that were similar to those
inherited from these traditions.323 (As will be seen below this description could
320
Brians 1998: 8. In France the ideas of the English political thinker and writer John Locke (1632 -
1704) were of particular importance for French Enlightenment political (albeit not revolutionary)
thought-see Quinton (1994: 323 and at 327 where he describes this very effectively as "[t]he
effect of the importation of Locke's doctrines into France was much like that of alcohol on an
empty stomach").
321 Brians 1998: 8.
322
See Witte 1997: 10: "The Catholic sacramental model flourished in southern Europe, Iberia, and
France, and their colonies in Latin America, Quebec, Louisiana, and other outposts. The Lutheran
social model dominated portions of Germany, Austria, Switzerland, and Scandinavia, together
with their colonies. The Calvinist covenantal model came to strong expression in Calvinist
Geneva and in dispersed Huguenot, Pietist, Presbyterian, and Puritan communities in Western
Europe and North America. The Anglican commonwealth model prevailed in much of Great
Britain and its many colonies across the Atlantic."
323 Witte 1997: 194.
ss
apply equally to the framework within which the South African civil marriage was
accommodated until the final decade of the pre-1994 Apartheid regime.)324
However, Witte325states that in the last one hundred years this perception has
changed radically in the West, where, particularly in the United States of
America, Enlightenment thinking has resulted in marriage increasingly being
viewed as a contractual undertaking devoid of the religious, social and natural
functions ascribed thereto by the four religious models so that these theological
models have been "slowly eclipsed.,,326 As examples of this phenomenon,
Witte327mentions a number of developments that have taken place in America,
including:
• The premium placed on prenuptial and nuptial agreements, and deeds of
settlement that allow spouses to regulate contractually the formation,
operation and termination of their unions;
• The extension of the reciprocal duties of support to cohabitants on the
basis that a tacit "marital contract" exists between them;
• The recognition of agreements sanctioning surrogacy, artificial fertilisation
and abortion;
• The relaxation of the formal requirements pertaining to the formation of
marriage, such as parental consent and witnesses;
• The removal of the fault requirement as a prerequisite for obtaining a
decree of divorce, leading to divorce becoming no more than "an
expensive formality";
• The increasing recognition of the clean-break principle in divorce matters,
with the result that dependency for maintenance is reduced;
• The increasingly nominal role played by the Courts as far as scrutinising
and supervising property settlements in divorce matters is concerned;
324 See 3.4.7.3 below.
325 Witte 1997: 195.
326 Witte 1997: 196.
327 1997: 195, 196.
56
• The blurring of the distinctions between the rights attaching to marriage
and cohabitation, to heterosexual and homosexual relationships, and to
children born in or out of wedlock;
• The fact that "deference to the constitutional principles of sexual autonomy
and separation of church and state" has curtailed the influence of Church,
State and community on marriage;
• The abolition of many sexual offences;
• The removal of the erstwhile prohibitions of contraception and abortion on
the basis of their perceived violation of constitutional rights; and
• The fact that the actions based on the "interference with one's spouse and
children" have largely become redundant.
In fairness, Witte328 mentions, many of these changes have led to the furtherance
of human rights such as equality, and have been expedited by the dramatic
progress of science and technology, increasing globalisation and in the
furtherance of human rights such as equality. However, these factors, combined
with the theories propagated by the political thinker John Locke (1632 - 1704)
and subsequently developed by other Enlightenment thinkers, have resulted in
the emergence of a new model of marriage. According to Witte, the foundation
of this model is rooted in the "impious hypothesis" advocated by Locke in terms
of which marriage could be accommodated and understood on a purely
contractual basis without recourse to religious or social purposes or perspectives.
In short, Locke proposed therefore that the institution of marriage could, as it
were, be divorced from the realm of the religious and accommodated and
understood within a secular framework.F? In further expounding on Locke's
perspectives, the Enlightenment theorists averred that, on the basis of their
foundational theologl30 comprising deism, individualism and rationalism,
marriage was a secular contractual undertaking entered into between the
328 1997: 196.
329 Witte 1997: 196.
330 See Witte 1997: 197 for a discussion.
57
spouses in accordance with the contractual prescripts and civil norms of the
society in which they lived.331 As such, the function of marriage and the roles
played by the parties thereto were not derived from or comprised of the elements
traditionally ascribed thereto by the Catholic and Protestant models, but instead
were secular aspects left to be contractually structured by the spouses
thernselves.F" As a result, a new model of marriage, the so-called
"Enlightenment contractarian model" had emerged.
3.4.3.1 Reforms occasioned by the Enlightenment contractarian model
3.4.3.1.1 The "first wave": Gender equality and the focus on the family
The Enlightenment contractarian model of marriage led to a drastic reform of
many concepts most fundamental to the Catholic and Protestant models of
marriage. Returning to English law (which was eventually to influence
developments in the United States), one of the first important developments was
the expansion of religious marriage in the mid 1830's so as to permit non-
Anglican parties to marry in accordance with their religious traditions followed by
registration of their marriage. Equally significantly, English law also introduced
the dual system of permitting both civil and religious marriages.333 Furthermore,
by the Matrimonial Causes Act marriage and divorce were placed under the
jurisdiction of the common law Courts in 1857, and, by the same statute private
divorce suits were introduced coupled with a right of remarriage for the faultless
party.334
Although the Enlightenment model generally retained the requirements pertaining
to the formation of marriage, it deviated from the other models in that it placed a
greater focus on the content of marriage and family, eventually leading to greater
331 Witte 1997: 196, 197.
332 Witte 1997: 197.
333 Witte 1997: 203.
334 Witte 1997: 204.
58
equality and to the improvement of the position of women and children both in
the family and in society in general.335 To begin with, the invidious position in
which children born out of wedlock had previously found themselves was greatly
improved,336 and the Matrimonial Causes Act recognised the custody rights of
mothers in consequence of divorce or annulment, thereby paving the way for the
eventual recognition of the "tender years" doctrine.337 In the wake of this Act, the
property rights of female spouses were dramatically developed as from the
1870's, thereby promoting gender equality; a process that would eventually
culminate in 1918 when women were granted the franchise and the right to hold
public office.338 These developments in England evince a gradual swing from the
marriage controlled and regulated by a dominant religion towards one in which
the State prescribed certain boundaries within which the parties to the marriage
were free to move unrestricted by constraints such as "excessive paternalism,
patriarchy and prudishness,,339and premised instead on the welfare of all of the
parties concerned. For this reason, Witte welcomes this "first wave" of reforms
as an overall improvement of marriage in the Western tradition."?
3.4.3.1.2 The Enlightenment model pressed further
As an outflow of the developments in England, Witte acknowledges that the first
phase of the Enlightenment model was instrumental in realising the ideals of
equality and freedom and in the overall improvement of the position of women
and children in society and, as such, was commendable. However, he opines
that in the wake of these developments, marriage in the Western tradition now
finds itself in a new phase in terms of which the ideals encapsulated in the
Enlightenment model are being utilised to "reject traditional marriage laws
335 Witte 1997: 202; 207.
336 See Witte 1997: 203.
337 Witte 1997: 204, 205. In South Africa this doctrine is commonly referred to as the "maternal
preference" principle-see P v P 2007 (5) SA 94 (SeA) at par [26].
338 Witte 1997: 206.
339 Witte 1997: 208.
340 Witte 1997: 207, 208.
59
altogether,,341and he cites the recognition of certain fundamental rights in the
United States as the key to this new paradigm. These include:
(a) The recognition of a fundamental civil right to marry
According to Witte the recognition of this right is embodied in the Uniform
Marriage and Divorce Act (1973), which reflects the increasing judicial
recognition by the Supreme Court of the right to marry that has taken place since
the 1960'S.342The Act defines marriage as a "civil contract" that is predicated on
the consent of both husband and wife. In addition, the Act has relaxed the formal
and substantive343 requirements for valid marriages and provides that non-
compliance with the few formalities that are indeed prescribed will not invalidate
such a marriage unless the parties themselves (or the parents of a minor) apply
for annulment within prescribed time limits. Although it protects the right to have
a marriage annulled on the basis of a lack of consensus, the option to elect to
have a marriage set aside on any other grounds is left to the sole discretion of
the parties.344
(b) The recognition of the right to privacy and greater freedom of contract
In this regard, Witte345 inter alia cites the recognition of the right of spouses to
choose whether or not to bear children,346and the erstwhile recognition of the
husband as head of the household as examples of the recognition of these
rights. Further examples mentioned by Witte include the fact that antenuptial and
marital contracts allow parties to determine the personal and patrimonial
consequences of the dissolution and termination of their marriages as they see
341
Witte 1997: 209.
342
Witte 1997: 210.
343
Such as prohibitions pertaining to consanguinity, bigamy and adoption-see Witte 1997: 209.
344
Witte 1997: 209.
345
1997: 210.
346
Griswold v Connecticut 381 U.S. 479 (1965) (the right to use contraceptives) and Roe v Wade 410
U.S. 113 (1973) (the right to an abortion within the first 12 weeks of pregnancy).
60
fit, subject, of course, to the requirement of legality. In addition, the introduction
of no-fault divorce and divorce at the instance of one party has resulted in the
effective granting of a "right to divorce.'?" As far as property is concerned, "one-
time divisions" made on the basis of what the Courts' find to be an equitable
apportionment are now being ordered in the event of the spouses being unable
to reach a settlement. Interestingly, the Uniform Marriage and Divorce Act does
not permit blameworthy conduct on behalf of the spouses to be considered in
determining the quantum of the apoortionment.P" Provided that it can be
proved, fault is however still relevant in custody disputes, where the best
interests of the child remain the paramount consideration. Regarding the
increasingly contractarian nature of marriage, Witte349 cites a number of other
examples that attest to the fact that minor children play a major role in mitigating
the contractual freedom which otherwise categorises marriage in the United
States.350
In conclusion, it is important to note that Witte stresses that although marriage
obligations are not necessarily enforced as rigidly as commercial contractual
undertakings, "the strong presumption in America today is that adult parties have
free entrance into marital contracts, free exercise of marital relationships, and
free exit from marriages once their contractual obligations are discharged";
consequences which also have spilled over into non-marital relationshipsf" As
a result, a number of other authors352 point out that the contractualisation of
marriage poses the serious (and paradoxical) threat of in fact undermining the
protection enjoyed by women and children that was occasioned by the "first
wave" of Enlightenment reforms due to the inferior bargaining positions in which
they often find themselves in a system that increasingly reflects a state of nature
347 Witte 1997: 212.
348 Witte 1997: 212.
349 1997: 213.
350
Examples in this regard include better enforcement of maintenance and other obligations or
duties towards minor children-see Witte 1997: 213.
351 Witte 1997: 214.
352 See for example Witte 1997: 214.
61
in which Church, State and society play no significant roles and in which married
life has become "brutish, nasty and short." As a consequence, it can be argued
that the contractarian model promotes equality in form rather than substance.
In the final analysis Witte expresses the rather dismal opinion that the second
phase of the Enlightenment contractarian model has resulted in a legal revolution
that, due to the fact that it has attempted to deconstruct a "millennium-long
tradition of marriage" by way of "rudimentary disquisitions on equality, privacy
and freedom", is devoid of tangible future benefits and instead will result in the
ultimate deconstruction of the family into a "random collection of individuals,,353
and the dismissal of the roles traditionally portrayed by Church, State and
society.
3.4.4 Quaere: Same-sex marriage-a 21st century phenomenon?
Bearing the global developments pertaining to marriage in mind, it is at this point
apposite to consider whether a phenomenon that is often viewed as being alien,
unheard of and sacrilegious is rightly classified as such. In the paragraphs that
follow the law's (in)tolerance of homosexuality and same-sex marriage will briefly
be explored.
Uncertainty persists as to whether or not homosexual activity was penalised in
early Roman times,354 but according to Eskridge355 contemporary research
suggests that same-sex unions appear to have been tolerated in the Republican
period and that they may even have enjoyed some status in law akin to marriage.
By the time of the emperors there appears to be no doubt that such unions were
permitted and that legally-valid male same-sex marriages involving public
ceremonies were common among the artstocracy.f" It is certain that Nero was
353
Witte quoting Nietzsche.
354
5 v K 1997 (9) BCLR1283 (C) at par (12).
355
1993: 1445 (also see note 87). Also see Church 2003: 47.
356
Eskridge 1993: 1446.
62
involved in at least two homosexual unions, while it has been widely suggested
that the relationship between Hadrian and the youth Antinous (whom Hadrian
had deified after his death) was undoubtedly also of a romantic nature.357 It is in
fact interesting to note that Claudius was the only emperor not to have been
involved in a homosexual relationship.358 Female same-sex unions were also
permissible but less common due to the prevailing social and political climate.359
The Christianisation of Rome led to the criminalisation of homosexual activity in
342 AD and by the time of Justinian it was regarded as a capital crime in the
Eastern Empire.36o After the fall of the Western Roman Empire homosexual
practices were prohibited in territories such as Visigoth Spain while they were
tolerated amongst the Frankish tribes.361 The spread of Christianity and the early
notion that sexual intercourse was intended only for procreation led the Church to
discourage such practices, but nevertheless to remain relatively ambivalent
towards homosexual relationships.362 Eskridge363mentions that during the early
and high Middle Ages the Church became "spiritually critical" of homosexual
relations, but "[p]aradoxically ... was in some respects tolerant of same-sex
unions in practice, especially those within its own clergy." In this regard
[e]xisting scholarship documents the existence of Roman Catholic and Greek Orthodox
rituals of "brother-making," "enfraternization," and "spiritual brotherhoods."
Ceremonies creating these brotherhoods were sometimes performed for male
missionaries before they embarked on their missions, as well as for other males who
wished to formalize their friendships_364
357 Eskridge 1993: 1446, 1447; Church 2003: 47.
358 http://en.wikipedia.org/wiki/Homosexuality#Europe (accessed on 25 July 2009).
359 Eskridge 1993: 1446.
360 5 v K 1997 (9) BCLR1283 (C) at par [14]; Eskridge 1993: 1447, 1448.
361 Eskridge 1993: 1449.
362 Church 2003: 48; Eskridge 1993: 1448.
363 1993: 1450.
364 Eskridge 1993: 1450.
63
Eskridge365mentions that the ceremonies formalising these unions differed from
those followed for heterosexual marriage in the sense that the latter emphasised
the procreative aspect of marriage while the former was based on its
companionate nature. Nevertheless, he concedes that it is probable that these
ceremonies were "little more than send-offs for missionaries" and that they did
not envision or sanction sexual unions as such. Over and above these "brother-
making" liturgies it has been suggested that the Church permitted the
solemnisation of genuine same-sex marriages, but whether this is so has never
been confirmed.366
As from the thirteenth and fourteenth centuries the Church's initially
accommodating attitude towards same-sex unions began to change and, on the
basis of theological constructions by theologians such as Thomas Aquinas,
homosexual relations came to be viewed as heretical.367 Ecclesiastical law
proscribing homosexual conduct was taken up by the secular authorities of the
day and punished as crimes "contrary to the order of nature.,,368 In this manner
Roman-Dutch law criminalised rnale-to-rnale sodomy (although some writers
were of the opinion that male-ta-female or female-ta-female sodomy should also
be prosecuted) and bestiality.369 This practice was followed in South African law
which criminalised both male-ta-male sodomy and other "unnatural sexual
offences" between males, irrespective of whether such activity was
365 1993: 1451.
366
Eskridge 1993: 1452, 1453. Also see Church 2003: 48.
367
5 vK 1997 (9) BCLR1283 (e) at par [15]; Church 2003: 49; Eskridge 1993: 1469.
368
Church 2003: 49. Eskridge (1993: 1471) opines that this may also have been related to the
medieval thinking of the 1200's that demanded conformism and the criminalisation of non-
conforming conduct which then transmogrified into the general criminalisation of categories of
persons. As Eskridge (1993: 1472) states "[d]uring the early modern period (about 1400-1700),
society's obsession with bad conduct gave way to an obsession with bad categories of people.
Attention shifted from persecuting specific conduct evincing heretical beliefs to identifying and
excluding "heretics," from forbidding demonic behavior to identifying and excluding "witches,"
and from penalizing inverted sexual behavior to identifying and excluding "inverts," or people
who engaged in crimes against nature (bestiality, sodomy, and so forth). Eventually, isolated
prosecutions of individuals engaging in bad conduct gave way to hysterical persecutorial crazes
that swept up throngs of people in popular, ecclesiastical, and official dragnets."
369
5 v K 1997 (9) BCLR1283 (e) at par [19].
64
consensuat."? As will be seen in the Chapter that follows, sodomy continued to
be criminalised until the Constitutional Court's decision in National Coalition for
Gay and Lesbian Equality v Minister of Justice'" found this common law crime to
be unconstitutional in October 1998.
The preceding paragraphs show that in the Western tradition the concept of
marriage as an exclusively heterosexual union cannot necessarily be taken for
granted. It is also noteworthy that African customary law also recognises same-
sex marriages within the context of so-called "woman-to-woman" marriages.372
In such a case, the danger of a "house dying out" prompts an older woman who
is past child-bearing age to marry another woman.373 Although usually not
involving a sexual relationship.V" such a marriage is concluded according to the
usual customary rituals, and any children born to the wife are regarded as the
children of the barren woman (who is now regarded as a husband).375 In the
event of the female bride not having children, a male genitor is found in order for
her to conceive. The genitor has no rights to the children so born.376 In
customary law it also sometimes occurs that a woman who has considerable
status or power marries another woman instead of marrying a man which would
place her in a subordinate position as a wife.377 The South African Legislature
has recently taken cognisance of the existence of such marriages by enacting
legislation to give effect to the intestate succession rights of a surviving spouse to
such a marriage.378 Finally, it must also be mentioned that, though uncommon,
370 S v K 1997 (9) BCLR1283 (C) at par [20].
371 1999 (1) SA 6 (CC).
372 Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) at par [12];
Church 2003: 50.
373 Oomen 2000: 275.
374 Bonthuys 2007: 533, 534.
375 Oomen 2000: 275.
376 Oomen 2000: 275.
377
Church 2003: 50; Oomen 2000: 276; Bonthuys 2007: 533.
378
The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009
was assented to on 19 April 2009 but is not yet in operation. This Act is discussed within the
context of domestic partnerships in Chapter 7.
65
marriages between African males have also been reported, particularly between
migrant rntneworkers.i"?
3.4.5 Preliminary conclusions
The development of the various models of marriage and the manner in which the
law has accommodated them since Roman times shows that marriage has never
been a static concept and that it has been adapted by Church and State alike. It
therefore appears that there really is no such thing as a traditional and uniform
concept of marriage that can be accepted without more as being the "correct"
one. Indeed, it has been shown that even the most basic common assumption
regarding marriage-namely that it is of necessity a heterosexual union-cannot
simply be accepted at face value in either the West or in African customary law.
The preceding analysis shows that each phase of the development of marriage
demands a contextualised analysis of the nature of the relevant society and of
the epoch in questton"?
379
Bonthuys 2007: 534; Church 2003: 51.
380
It is insightful in this regard to compare a recent contribution by VentreIla (2009: 81 - 129) who
bases his arguments against the recognition of what he refers to as "same-sex 'rnarriage'" on the
contention that "[s]ame-sex 'marriage' advocates are not seeking to correct a misapplication of
regulatory power to marriage; rather, these advocates are walking the same analytic aisle with
the polygamists because, in each situation, the altar they seek demands the structural
obliteration of marriage" (at 112, emphasis added). Ventrella essentially contends that marriage
is and always has been a monogamous union between a man and a woman ["[m]arriage in
Calfornia, for example (and in all cultures and at all times for that matter), has always meant a
union between a man and a woman" (at 90, emphasis added)]. As a result "[s]ame-sex
'marriage' impugns marriage's qualitative essence; plural marriage impugns marriage's
quantitative essence. In both cases, marriage's structure is transmogrified." (note 27). Ventrella
opines that "the true analogue" to gay marriage is not laws based on miscegenation, but rather
on polygamy "because in each case' the advocates are seeking to alter the essence of marriage's
structure" (at 94, emphasis added). It is submitted that this "true analogue" is precisely where
Ventrella's arguments become vulnerable, especially in a (South) African context, where not only
has polygyny always been a part of the culture of the majority of the population (leading to such
marriages being legally entrenched by the Recognition of Customary Marriages Act 120 of 1998),
but where, as seen above, same-sex marriages have indeed been permitted. Therefore it must
be reiterated that the argument that the validation of same-sex marriage and the recognition of
polygamous marriages will alter the very "structure" of marriage must, as stated above, be
viewed against "a contextualised analysis of the nature of the relevant society and of the epoch
in question." It is submitted that doing so will show that marriage really has no immutable and
66
Regarding the shift towards a contractarian model of marriage in the West, Witte
and Glendon's381point that under the contractarian model marriage has become
"short" is undeniable, but whether this model is also the cause of it being "brutish
and nasty" is surely debatable. Life in the 21 st century-as influenced by factors
such as technological and scientific advances, the separation of Church and
State and the greater awareness of universal human rights and the concomitant
need to cater for increasingly less homogenous societies-dictates that the shift
towards a contractarian approach towards marriage is inevitable. Moreover,
when the possibility of a "brutish, nasty and short" marriage under the
contractarian model is compared with the possibility of the same marriage being
"brutish, nasty and perpetuaf' under any other, the latter option is certainly
preferable. It is however also undeniable that women and children bear the brunt
of the shift towards a contractarian marriage model, and that the increasing
incidence of single-mother and child-headed households, abortions and "lost
children" could at least partially be attributed towards this shift.382 Whether, in a
first-world society, these problems would be solved by a reversion towards the
stringent sacramental or austere pre-Enlightenment Protestant models is
possibly debatable; in an essentially third-world society positively untenable.
Indeed, such a reversion may in fact compound the problems to which Witte and
Glendon refer, as it is a known fact that the stringent requirements and strictures
of marriage often constitute one of the main reasons for couples choosing not to
marry.383 A legal system that ignores this fact and fails to provide adequate
recognition for such relationships prejudices all of the parties involved-not
merely the most vulnerable members of society, but in fact society in general
(think, for example, of an outsider to such a relationship who contracts with such
a couple). No model of marriage can provide a solution to the problems faced by
individuals who-by choice or by force-find themselves in non-formalised
relationships that do not enjoy adequate legal recognition and protection.
universal structure, and that VentreIla's arguments cannot hold water in a pluralistic society such
as South Africa's.
381 See Witte 1997: 214.
382 See Witte 1997: 214, 215.
383 See SALRC2006: 27, 28; Sinclair and Heaton 1996: 272.
67
It is submitted that the answer to these problems lies not so much in expecting
any particular model of marriage as such to shoulder the burdens of achieving
greater equality and freedom for women and better protection of children, but
rather, as will be seen in the Chapters that follow, in the drafting of legislation
based on an effective, pluralistic and legally-robust domestic partnership rubric in
order to co-exist with marriage in a broader interpersonal relationships model. It
is however important to note that the furtherance of equality for women and
better protection of children cannot be the sole objective of such a rubric and its
resulting legislation, for the incidence of unmarried cohabitation is increasing
worldwide384 (and South Africa is no exception)385 and it is therefore imperative
that the legislation should provide legal protection for the men, women and
children involved in such relationships, and for the broader society in which they
live. While ensuring contractual autonomy for couples irrespective of gender,
race or religion, the broader model must enable them freely to contract regarding
the level of commitment and/or religious significance which they wish to attach to
their union; and thus to obtain legal recognition thereof irrespective of whether
they enter into a marriage or a domestic partnership, and irrespective of whether
the domestic partnership is of a conjugal or non-conjugal nature.386 In order to
ensure adequate protection for the partners themselves as well as for their
children, the model would have to ensure that its domestic partnership legislation
provides a form of "catch-all" protection, so that legal protection would not be
contingent on opting-in to the model, but would also be available by default. This
should be achieved by providing for both formalised and non-formalised domestic
partnerships. The idea behind the interaction between marriage and the
domestic partnership legislation drafted according to the rubric (represented by
the shaded area) can be illustrated as follows:
384
See for example SALRC2006: 20; Sinclair and Heaton 1996: 269 and Schrama 2008: 311 (in a
European context).
385
See 1 in Chapter lo
386
The legislation contained in such a broader model should also provide a means for countering
the role played by patriarchy in society-see De Vos and Barnard 2007: 813 and 824.
68
Broad interpersonal relationships model:
,-----------,,. , - - - - - - - -- - ---- - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - --,
Option A: ,,,
MARRIAGE ,, Option B:, FORMALISED
~r--------------------------- ~, DOMESTICPARTNERSHIP
Rubric ~ legislation
Option C:
"Catch-all": NON-
FORMALISED DOMESTIC PARTNERSHIP
Figure 2.1: The broad interpersonal relationships model
Nevertheless, while being sturdy in law, the broad interpersonal relationships
model would have to comprise laws that are flexible enough to accommodate the
lived reality and needs of the persons involved by taking cognisance of societal
prejudices, cultural differences and religious beliefs. Furthermore, the rules
governing the formation and dissolution of all interpersonal relationships would
ideally also have to be "comparable in their stringency.,,387 These guiding
principles notwithstanding, a model that complied with these guidelines would be
meaningless if it did not provide adequate protection for the most vulnerable
members of society namely its women and children. In this regard the
functionality and efficiency of the entire model would depend on the functionality
and efficiency of domestic violence, maintenance and child-care legislation.
It is submitted that these principles apply equally to a South African setting so
that, in the end result, the litmus test for the broader model and for the domestic
partnership legislation contained therein would be whether or not it is able to
pass constitutional muster by promoting the overall achievement of human
dignity, equality and freedom. A broad interpersonal relationship model that
387 Witte 1997: 218.
69
embodies these characteristics by including legislation drafted according to a
robust domestic partnership rubric that co-exists with marriage, will serve to allay
many of the fears expressed by Witte and Glendon. In the Chapters that follow
an attempt will be made to ascertain whether (i) such a rubric is required in South
Africa, and (ii) if so, how the rubric should be employed towards drafting the
requisite domestic partnerships legislation.
In view of these findings, the development of marriage in Roman-Dutch law and
subsequently in South Africa must now be considered.
3.4.6 Roman-Dutch law and marriage
Bearing the developments sketched earlier in this Chapter in mind, it comes as
no surprise that after the tenth century the canon law of marriage as
administered by the Bishop of Utrecht applied in the northernmost Dutch
provinces.388 This was the case until the end of Spanish rUle,389after which the
Reformation led to the secularisation of the marriage laws in many jurisdictions,
including the province of Holland.39o However, lawmakers of the time appear to
have recognised the merits of a number of features of the decree of 1563,
notably pertaining to the abolition of clandestine marriages and the publication of
banns.391
When the law of marriage was reformed and consolidated by the Political
Ordinance of the States of Holland and West Friesland of 1 April 1580, the
388 Witte 1997: 127.
389
As from 1566 a number of provinces revolted against Spanish rule under Philip (who had
succeeded Charles V in 1555 and had become Philip II of Spain). In terms of the Union of Utrecht
of 23 January 1579 (which, incidentally, formed the basis for the later United Republic) a number
of northern provinces (namely Holland, a portion of Gelderland, Zeeland, Utrecht and Groningen)
formed an alliance aimed at overthrowing their Spanish rulers, and in 1580 William of Orange
(1533-1584) was proclaimed Count of Holland and of Zeeland. In 1648 the Treaty of Munster
finally terminated Spanish rule throughout the Netherlands-see Hahlo and Kahn 1968: 404;
525; 529.
390
Witte 1997: 127.
391
Fourie v Minister of Home Affairs 2005 (3) SA429 (SCA) at par [71]; Hahlo 1985: 11.
70
secular authorities did not do away entirely with the marriage laws as they had
existed prior to the Reformation: Indeed, as Hahl0392 mentions, the secular
authorities maintained the notion of marriage as a divine institution while
distancing themselves from the notion of marriage as a sacrament.
Article 3 of the Political Ordinance took the regulation of marriage to a new level:
It applied to all marriages regardless of any religion393and required marriages to
be solemnised by a marriage officer (who was either a magistrate or a minister of
religion)394 in the presence of witnesses. In addition, it retained the Decretum
Tametsi's banns requirement,395and required the prospective spouses to obtain
parental consent in the event of the male being younger than 25 or the female
being younger than 20.396 Failure to comply with the provisions of section 3 led
to nUllity.397
In Roman-Dutch law the nature of the espousal (sponsalia trouwbeloften) as a
reciprocal obligation-enforceable by an actio in personam-was retained, but
the enforcement thereof took on a rather unusual format in that the Courts could
appoint a person to go through the marriage ceremony on behalf of the defaulting
party, so that that person was married in absentia.398
392 1985: 1l.
393
Wessels 1908: 439. Wessels mentions that although Jewish couples intending to marry initially
did so according to their own regulations, they were required as from 1656 to comply with the
requirements of the Political Ordinance.
394
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [71]. In terms of the law of 7 May
1795 all marriages in Holland were required to be solemnised by a magistrate, otherwise they
were void ab initio-see V.d.K Th 84.
395
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [71]. Interestingly enough, the
Political Ordinance was not the first law that secularised marriage in the province of Holland: An
ordinance that had been issued four years earlier (in 1576) in Rynland had already required the
prospective spouses to appear before the sheriff and to publish banns. The ordinance also
proclaimed that all clandestine marriages concluded since 1572 had to be registered and
proclaimed as such either in church or in the Court of Rynland-see Wessels 1908: 438; Hahlo
and Kahn 1968: 450, 45l.
396
Hahlo 1985: 12. A male spouse attained majority by virtue of the marriage-see Hahlo and Kahn
1968: 45l.
397
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [71].
398
Lee 1931: 52; Hahlo 1985: 12; Van Warmelo 1954: 104.
71
Forty years before the Political Ordinance was adopted, the matrimonial property
law of Holland had already been drastically reformed by the Perpetual Edict of
1540.399 In terms of Article 17 of the Edict, a man who had married a girl who
was younger than 20 years of age without the consent of her parents (or friends
and relatives in the event of her not having any parents) or the Courts, was
forever barred from taking any benefit or receiving any dowry from her even if
such consent was later given.4oo The same applied to a woman who married a
man who was younger than 25 years of age without obtaining the requisite
consent."?' The rationale behind the imposition of this perpetual penalty is,
according to Voet,402 to remove the possibility of a profit being gained from a
clandestine marriage. As Hahl0403 mentions, "if deterrence was the object, this
was obviously the right way to go about it."
399
Visser and Potgieter 1998: 20.
400
The first part of this section, translated and accepted as such in Ex parte Van der Wait et Uxor
1954 (1) SA 565 (C) at 566 (G) - (H) and Ex parte Nortje en 'n Ander 1977 (3) SA 1058 (T) at 1060
(A) - (B). reads as follows: "If anyone shall take upon himself to solicit and induce any young girl
of not more than twenty years, by means of promises or otherwise, to contract marriage with
him, or shall in fact contract marriage with her without the consent of the father or mother of
the said girl, or of the majority of the friends and relatives, if she has no father or mother, or of
the judicial authorities of the place, such man shall at no time be entitled to take or receive any
dowry or other benefit (whether by way of ante-nuptial contract or by the custom of the country,
by testament, gift, transfer, cession, or otherwise, in any manner whatever) out of the goods
which the said girl may leave behind, even though he may, after the marriage has been
completed, have obtained the consent of the father and mother, of the aforesaid friends and
guardians or of the Court, of which we do not wish any notice to be taken in this particular."
401
Lee 1931: 57. It is interesting to note Lee's (1931: 57) observation that, in the former case (i.e.
where consent on behalf of the woman had not been obtained), the edict refers to the
completion of the marriage (na't houwelijek volbracht sijnde). whereas in the second case (a
woman marrying a man under the age of 25 without consent) the edict refers to the
consummation of the marriage inoe't huwelick gheconsommeert). Over and above the penalties
already mentioned, Article 17 prohibited Charles V's subjects from being present at such
marriages or from providing accommodation to the spouses thereto. The punishment prescribed
was a fine of 100 Caroli or "other severe punishment" at the discretion of the Court. Similarly,
notaries were, on pain of loss of office or other discretionary punishment, prohibited from
effecting these marriages-see Lee (1931: 57).
402
Voet 23.2.16.
403
1975: 95 (note 66).
72
As from the thirteenth century'?' marriages in Roman-Dutch law were presumed
to be in community of property and of profit and loss (gemeenschap van
goederen), unless an impediment to the marriage existed405 or unless an
antenuptial contract stated the contrary.t'" Postnuptial contracts were, however,
not perrmtteo.?"
After the reception of Roman law, donations between spouses stante matrimonio
were generally prohibited.40B
Regarding the personal consequences of a marriage concluded in terms of
Roman-Dutch law, a man who was a minor before marriage became a major.409
The same did not, however, apply to his wife: Marital power was applied
irrespective of her age at the time of the conclusion of the marriage, with the
result that a wife was regarded as a minor who was under the power of her
husband,"? and was bound by any contracts concluded by him during the
rnarriaqe.t" In addition the marital power implied that:
(i) The husband became the head of the family. This position could not be
varied by antenuptial contract.t"
(ii) The wife acquired the rank of her husband, and this status was retained if
she survived him;413
404
Hahlo 1985: 13. Prior to this date the patrimonial consequences of the marriage was determined
by the customs of the particular jurisdiction in which they resided-see Hahlo and Kahn 1968:
451.
405
In this regard, (i) minor parties who married without consent were prohibited from benefiting
from the marriage; and (ii) if the parties fell within the prohibited degrees community of
property did not occur unless (and for as long as), the marriage was putative-see Lee 1931: 71.
406
Gr 2.11.8; Wessels 1908: 453.
407 Hahlo 1985: 14.
408
Gr 3.2.9: "Insgelyks een man niet aen zyn huysvrou dog dusdanige gifte, also ook van de huysvrou
aen de man, werd door de dood beveftiqt, ingevalle niet en blykt van verandering des wittes."
Also see Hahlo 1968: 452; Lee 1931: 92; Voet 24.1.1.
409
Gr 1.6.4 and 1.10.2. By virtue of this change a man who was previously a minor could acquire
marital power over his wife-see Hahlo 1975: 152.
410
Gr 1.5.19; Lee 1931: 64.
411
Lee 1931: 67.
412 Hahlo 1975: 152, 153.
73
(iii) The wife had to be represented in Court.?"
(iv) The husband administered his wife's property freely, regardless of
whether it formed part of their community of property.?" and was placed
under no duty to account for his administration thereof.416 This power
could, however, be curtailed by an antenuptial contract?" or, in the event
of maladministration, by an application brought by the wife for division of
the joint estate (boedelscheiding);418
(v) A husband could contract in his wife's name and in so doing could acquire
rights or incur responsibilities for her while, generally speaking,419she was
incapable of entering into binding transactions without her spouse's
consent.F, ? and
(vi) A husband was permitted to chastise his wife, provided that this was done
moderately and reasonably.?"
The notion of marriage as a union for life was retained,422with the result that
divorce "continued to be looked upon as a condign punishment for a serious
413
Lee 1931: 63.
414
Gr 1.5.22, 23; Hahlo 1985: 13.
415
Gr 1.5.22; Lee 1931: 64; Wessels 1908: 452.
416
Lee 1931: 64.
417
Hahlo 1975: 153; Scholtens 1959: 214. To begin with, Roman-Dutch law did not prescribe any
formalities for the conclusion of an antenuptial contract. Such contracts could therefore be
concluded orally, and the conclusion of the contract in this form was binding on the spouses and
third parties (cf Lee 1931: 71). As is to be expected, proving the existence of such an agreement
could be problematic but this did not influence the validity thereof. The registration of
antenuptial contracts involving immovable property appears to have been required in a plakaat
of 1624, but this stipulation appears to have been disregarded-see Ex parte Spinazze and
Another NNO 1985 (3) SA 650 (A) at 656 (D) - 657 (B) and Lee 1931: 71; Wessels 1908: 459, 460.
418
Hahlo and Kahn 1968: 452.
419
This power could be regulated by the parties' antenuptial contract (Lee 1931: 67). Other
exceptions that applied were contracts (i) which a minor was competent to conclude, unless the
husband had deserted his wife, in which case she was fully competent to contract on her own
behalf; (ii) contracts involving household necessities; (iii) contracts in the course of her public
trade or profession, provided that she practised such with her husband's consent; (iv) unilateral
contracts that were solely to her benefit (Lee 1931: 65). Also see Hahlo 1985: 13; Robinson et al
2009: 26; Sinclair and Heaton 1996: 192.
420
Gr 1.5.22; Hahlo and Kahn 1968: 451; Hahlo 1985: 13.
421
S v Neanywa 1992 (2) SA 182 (eK) at 187 (F) - 188 (e); Hahlo and Kahn 451; Hahlo 1975: 154.
422
Hahlo and Sinclair 1980: 2.
74
matrimonial offence.,,423 Drawing on the Protestant reforms, Roman-Dutch law
permitted divorce a vinculo at the instance of either party mainly on the grounds
of adultery424or, in latter years, malicious desertion.425 These grounds became
the common law grounds of divorce. Certain writers appear to have been of the
opinion that adultery could be widely interpreted to include sodoml26 and that
perpetual imprisonment was also a ground of divorce.427 In line with Protestant
reforms, Roman-Dutch divorce law was characterised by a distinctly punitive
element; an outflow of which was manifested in the fact that a "guilty" spouse
was not permitted to obtain a divorce.428 In the event of both spouses being
"guilty", divorce was imposslble.v" An adulterer was prohibited from marrying his
or her lover, and, in some instances, from remarrying at all until the death of the
"innocent" spouse.f" Save for these exceptions, remarriage was not precluded,
but a divorcé was not permitted to marry his ex-wife's sister, and, by the same
token, a divorcée was not permitted to marry her ex-husband's brother.431
423 Hahlo and Sinclair 1980: 2. An order for judicial separation was, however, obtainable in instances
where continued cohabitation was not possible. This would at least relieve the parties from the
duty of living together as man and wife-see Van der Vyver and Joubert 1991: 461.
424 Article 18 of the Political Ordinance of 1580; Gr 1.5.18 ("Volgens Chrijtus vermaninge werdt in
deze Landen geen fcheydinge des Egt-bandts toegelaten, dan door de doodt van een der Egt-
genooten, ofte door Overfoei. Alle andere willige ofte regtelyke fcheydinge, kannen van Egt-bandt
nagte de regten daar uyt ontftaande niet verbreeken"). Also see Voet 24.2.5.
425 Voet 24.2.5; Hahlo 1985: 12, 13. The origin of divorce on the ground of malicious desertion
appears to be unclear and doubt originally persisted as to whether or not this was the case-see
Allen v Allen 1951 (3) SA 320 (A) at 326 (H) - 327 (A). Wessels (1908: 470 - 472) states that the
earliest authorities appeared to have conflicting views in this regard as De Groat in his Inleidinge
(1.5.18-see preceding note) appears on the basis of Christian teachings not to have recognised
such a ground, while other authorities such as Groenewegen and Brouwer did. On the other
hand, Wessels mentions that he had encountered various references to malicious desertion as
ground for divorce (for example a Consultation of 1623 that pre-dated De Groat's work). Others
viewed malicious desertion as not being a ground of divorce due to the fact that, in itself, the
desertion terminated the marriage ipso iure leaving the Court merely to declare this fact (see
Alien v Alien 1951 (3) SA 320 (A) at 327 (B)). In any event, divorce on the ground of malicious
desertion has been recognised by Roman-Dutch law since 1650-Wessels 1908: 472.
426 See McGill v McGill (1926) 47 NPD 398 at 398 and the authorities cited.
427 See V.d.K Th 88 and 89 who states that the "commission of a heinous crime is an equally good,
and even stronger ground" than adultery. Also see Lee 1931: 89 (notes 1 and 2).
428 Hahlo and Sinclair 1980: 2.
429 Hahlo and Sinclair 1980: 2.
430 Hahlo and Sinclair 1980: 2; Robinson et 0/2009: 26.
431 Lee 1931: 89.
7S
Regarding the patrimonial consequences of divorce, the "guilty" spouse could
forfeit all of the financial benefits accruing from the marriage, whether by virtue of
community of property or otherwise.432 In certain instances the "guilty" spouse
could even be ordered to forfeit the whole or part of his own estate.433 A further
manifestation of the extent to which the fault principle was applied is illustrated by
the fact that the "innocent" spouse was generalll34 entitled, as a reward for his
or her chastity, to custody of any minor children born of the marriage.435
If one of the spouses died leaving minor children born of the marriage, the
community of property usually continued to operate between the surviving
spouse and the children, and in certain instances a "one sided" community arose
in terms of which the latter shared only in the profits while all losses were borne
by the former.436 The joint estate was then dissolved upon the children attaining
the age of majority or upon the death or remarriage of the parent concerned. In
the event of no minor children surviving a first-dying spouse, the surviving
spouse received one half of the joint estate while the other half was inherited by
the heirs of the deceased spouse.?" If a wife survived her husband, she could
renounce her entire share of the joint estate in order to avoid liability for joint
debts.438
The lex hac edictali of AD 472 was received into Roman-Dutch law with the
purpose of protecting the children of a person who remarried.439 In terms of this
edict, a person was prohibited from bestowing a gift or inheritance on his or her
second spouse that exceeded the smallest amount bequeathed to any of his
432
Lee 1931: 89;
433
Hahlo 1985: 14; Hahlo and Sinclair 1980: 2.
434
A Court could, in its discretion, decide otherwise if this was in the interests of the children's
welfare-Lee 1931: 89.
435
Lee 1931: 89; Hahlo and Sinclair: 1980: 2.
436
Gr 2.13.2,3; Hahlo and Kahn 1968: 452; Lee 1931: 93.
437
Hahlo and Kahn 1968: 452; Hahlo 1985: 13.
438
Hahlo and Kahn 1968: 452; Hahlo 1985: 13.
439
Lee 1931: 95; Wessels 1908: 467.
76
children from the previous marriaqe."? In the event of this occurring, the edict
provided that the excess was to be distributed between all of the children of the
previous marriage in equal shares.i" In the event of remarriage following the
death of a spouse, the survivor was placed under a duty to secure or to disburse
that to which the minor children were entitled from the deceased estate.442
3.4.7 South African law
3.4.7.1 The Dutch East India Company
Roman-Dutch law was received at the Cape of Good Hope not so much as a
product of military expansion, but of mercantile interest instead.443
The instrument by which this was accomplished was the Dutch East India
Company (Vereenigde Geoctroyeerde Oost-Indische Compagnie or "VOC") that
had received a charter (Octrooi) from the Staten-Generaal (the highest body
governing territory foreign to the Republic of the United Netherlands, comprising
representatives of all seven provinces of the United Netherlancsj'?" in 1602 in
terms of which the monopoly of trade of all territory to the east of the Cape of
Good Hope had been entrusted to it.445 As such, the VOC remained subject to
the sovereignty of the Steten-Genereetï"
440
Lee 1931: 95; Wessels 1908: 467.
441
Lee 1931: 95; Wessels 1908: 467.
442 Lee 1931: 95.
443
Hahlo and Kahn 1968: 540: "Throughout the lSO-odd years of its existence the V.O.e., with an
eye on its shareholders, pursued an unashamedly mercantilistic policy, regarding its possessions
first and foremost as sources of profit for shareholders at home."
444
Hahlo and Kahn 1968: 533; De Wet 1958(b): 85.
445
Visagie 1969: 24; Hahlo and Kahn 1968: 534. A point of contention immediately arises as to
whether or not the Cape actually fell within the territory governed by the Octrooi of 1602-see
Visagie 1969: 40, 41 for a discussion.
446
De Wet 1959(b): 84. It does however appear that wide powers were granted to the vae. This
inference can be drawn from the preamble to the Octrooi of 1602, as discussed below.
77
On 25 March 1651 the VOC issued an instruction for the creation of a victualling
station at the Cape of Good Hope.447 The Cape was regarded as res nullius
since the earlier British occupation by the British in 1620448 had not been ratified
by the British monarch, and the intention was consequently for it to become
Dutch property that would be placed under the management of the VOC.449
Jan van Riebeeck was the Commander of the Dutch convoy of ships that arrived
at the Cape of Good Hope on 6 April 1652. Such a minor settlement was, as
Theal states, regarded as being a "single ship in a fleet.,,450 As such, Van
Riebeeck was the Head of Government and of the Council (Raad); a council that
consisted of himself and the senior officials who accompanied him.451 The
settlement at the Cape was regarded as an out-station (buitencomptoir) subject
to the jurisdiction of the Governor-General and Council of India (Raad van Indie)
that was seated in Batavia, the headquarters of the VOC in the East.452 In turn,
the Raad van Indie was under the jurisdiction of the VOC (and, more specifically,
its directors, the Here Sewentien) which, in the final instance, was subject to the
Staten-Generaal.453
It appears as if the instructions regarding the settlement at the Cape as received
by Van Riebeeck from the VOC in 1651 made no mention of the organisation of
government at the Cape, either administrative or judicial.454 This
notwithstanding, De Wet455 mentions that Van Riebeeck, as an experienced
official of the VOC, exercised these functions nonetheless, and the fact that he
was required to report to his superiors in Batavia and the Netherlands appears to
447
De Wet 1958(a): 162 (note 1); Van Zy11908: 7.
448
On 3 July 1620 Andrew Shillinge and Humphrey Fitzherbert declared that they had "taken quiet
and peaceable possession of the Bay of Saldania" on behalf of the King of England-see Visagie
1969: 40.
449
De Wet 1958(a): 163 (note 6).
450
Per Hahlo and Kahn 1968: 537 (note 57).
451
Visagie 1969: 41; Hahlo and Kahn 1968: 538; De Wet 1958(a): 164.
452
Visagie 1969: 24; Hahlo and Kahn 1968: 536; De Wet 1957: 237; Roos 1897: 3.
453
Hahlo and Kahn 1968: 537; De Wet 1957: 237.
454
De Wet 1958(a): 164; Visagie 1969: 63.
455
De Wet 1958(a): 164. Also see Van ZyI1983(a): 429.
78
indicate that his activities were, at the very least, ratified by them (to the extent
that this was possible).456 However, it is necessary to investigate a fundamental
issue before the validity of any such "ratification" could even be contemplated.
This is because any possibility of "ratification" by the vac would be subjected to
an important sine qua non, namely whether or not the vac was vested with
legislative competence to begin with. On the one hand, a number of authors
seem to support the view that the vac never had the capacity to legislate in any
of the territories which it occupied.t'" As De Wet458mentions:
Die State-Genraal het in die Oktrooi geen wetgewende bevoegdheid aan die Here
Sewentien verleen nie, en hierdie liggaam kon dus nie die reg voorskryf wat in Oos-Indië
toegepas moes word nie.
However, in Spies v Lombard 459the Appellate Division stated that it was "well
known" that the Staten-Generaal had "conferred legislative powers" on the
directors of the vac. The opinion that the vac was empowered to legislate is
also propagated by authors such as Stock460and by the Legislature.461 Although
this debate has raged for many years, it is important for the purposes of
understanding the development of family law that this issue is considered in
some detail. Moreover, it is submitted that a closer look at a number of
provisions of the Octrooi of 1602 might yield a fresh perspective on this debate.
456 De Wet 1958(a): 164. Regarding legislative functions, there are many examples of plakaten
issued by Van Riebeeck. Indeed one of the first was issued aboard the Dromedaris (Van
Riebeeck's ship) merely three days after setting foot ashore-see Van Zyl 1908: 8, 9.
457 See De Wet 1958(b): 85, 88, 90, 94; Van Zyl 1907: 132 - 147; 1908: 5, 6; Roos 1897: 1 - 23;
Visagie 1969: 38; 63; 78; Van der Merwe 1995: 235.
458 1958(b): 88.
459 1950 (3) SA 469 (A) at 482 (C).
460 1915: 336. That Stock was of the opinion that the vac indeed was vested with legislative
capacity can be deduced from his view that the Statutes of Batavia (see main text below) were
binding on the Cape as ua settlement dependent on the central Government of Batavia."
461 See for example section 1(1) of the Cape Statute Law Revision Act 25 of 1934: U[t)he laws
enacted by the legislative authority established at the Cape of Good Hope prior to the tenth day
of January, 1806 ..." (emphasis added).
79
As a point of departure, it is submitted that De Wet's statement quoted above
should be considered against the backdrop of a number of factors:
(i) It is submitted that the preamble to the Octrooi may be instructive in
determining the ambit of the vac's powers. The relevant portion of the
preamble is the following:462
[I]t having been considered and maturely debated by us [the Staten-Generaal]
what the value to the United countries and to the good inhabitants of the same
would be, if the said navigation trade and commerce were maintained and
extended under good general order, policy, correspondence, intercourse and
management, we [the Staten-Generaal] have deemed fit to appoint Directors of
the aforesaid Company on our behalf ... which having been well understood by
the Deputies of the said Company, and the same having been agreed upon after
various communications, deliberations, agreed to and confirmed the said
Association, as we do hereby agree to and confirm, for the promotion of the
welfare of the United countries, as well as for the benefit of all the inhabitants
thereof, by sovereign power and authority, likewise with sure knowledge under
the stipulations, privileges and advantages hereinafter set forth.
The wording in the preamble is clear and unambiguous-the directors of
the vac were appointed to act on behalf of the Staten-Generaal, and,
furthermore, were entitled to exercise "sovereign power and authority"
while doing so. Admittedly, the preamble cannot be read in isolation, but
must, as the preamble states, be considered in conjunction with the
"stipulations, privileges and advantages" set out in the remainder of the
Charter. None of the sources consulted463 appear fully to have
appreciated the value of the preamble in terms of ascertaining the scope
of the vac's authority in the East Indies.
462
As per Van Zy11907: 135, 136 (emphasis added).
463
See, for example, De Wet 1958(b): 85, 88, 90, 94 and 1985: 28 - 42; Van Zyl 1907: 132 - 147;
Roos 1897: 1 - 23; Van Zyl 1983(a): 425, 433; Swanepoel1958: 7 - 26; Visagie 1969: 24 - 78.
L- ~
80
(ii) Secondly, article 35 of the Charter deals specifically with legal matters
pertaining to the vac's activities.464 Sir John Wessels465 (later Chief
Justice of the Union of South Africa),466accepts the fact that this article
made provision for Court structures to be established in the East Indies
without any reservation. If one takes a closer look at the article in
question, it entitles the VOC to "appoint Governors, soldiers and officers of
justice, and to establish the necessary services for the preservation of the
place, the maintenance of good order policy and justice, as well as for
progress and trade.,,467
Although it can be acknowledged that article 35 does not categorically
provide for legislative competence, it is difficult to imagine a situation in
which an organisation could be vested with the competence to establish
Courts and to appoint judicial officers to serve in them without that
464
Article 35 (per Van lyl 1907: 137) states that: "Also that the aforesaid Company shall be allowed
to make contracts with the princes and potentates to the east of the Cape of Good Hope, and
beyond the Strait of Maghellan, as also contracts in the name of the States-General of the United
Netherlands or the Supreme Authorities of the same; likewise to build there any fortresses and
fortifications; to appoint Governors, soldiers and officers of justice, and to establish other
necessary services for the preservation of the place, the maintenance of good order policy and
justice, as well as for progress and trade; provided that the aforesaid Governors, officers,
administrators of justice and soldiers, shall take the oath of allegiance to the States-General, or
to the Supreme Authorities aforesaid, and to the Company, as far as industry and trade are
concerned, and they shall dismiss the aforesaid Governors and officers of justice in so far as they
find that they behave badly or treacherously, upon this understanding that they shall not prevent
the aforesaid Governors or officers from coming here to lodge their complaints or grievances, in
case they believe that they have such, with us, and that the Company shall at every arrival of
ships be obliged to inform the States-General about the Governors and officers whom they have
appointed to the aforesaid places, in order that their Commission may then be agreed to and
confirmed."
465 1908: 355.
466
According to Kahn 1991: 337 Sir Johannes (John) Wilhelmus Wessels (1862 - 1936) was a
member of the Cape Bar (1886) and of the Pretoria Bar as from 1887 - 1899. He served as a
judge in the then Transvaal Supreme Court from 1902 - 1920, and was appointed Judge
President of that Court in 1920, a position held until his appointment as Judge of Appeal in 1923.
He served in this capacity until becoming Chief Justice of the Union of South Africa (1932 -1936).
He was knighted in 1909. When tribute was paid to Mr Justice Wessels after his passing in 1936,
his friend and colleague Mr Justice John Stephen Curiewis (Chief Justice of the Union from 1936-
1938) stated that "[hlis profound knowledge of our common law entitles him, in my view, to rank
among the three greatest Roman-Dutch lawyers of our time" -see the "Notes" section of the
South African Law Journal (1937: 451- 453).
467 AsperVanlyl 1907: 137.
81
organisation having the power to promulgate legislation. Moreover, could
it not be argued that, had the Staten-Generaal indeed envisaged the
utilisation of a specified body of law in the East Indies (as opposed to
legislative powers granted to the VaC), it would have granted judicial
competence coupled with a specific reference to the legislation which it
required to be applied? To put it differently, bearing in mind that the
Staten-Generaal specifically granted the (sovereign) power to act on its
behalf to the VOC468 and that it vested the company with the power to
establish a Court structure without specifying the legislation to be applied
by those Courts, it could be argued that legislative competence was an
implied term of the Charter. Indeed, the Staten-Generaal might well have
envisioned the fact that the establishment of services necessary for the
"maintenance of good order policy and justice", and for facilitating
"progress and trade" would certainly require the promulgation of legislation
that was context-specific for the needs of the specific territory in question.
(iii) Article 35 did not, however, provide the vac with carte blanche to appoint
officer-bearers in the East Indies, but clearly required the vac to report
back to the Staten-Generaal regarding its affairs as well as all
appointments made in order for them to be confirmed.469 The accounting
requirements prescribed by the Octrooi dictate that the Staten-Generaal
could surely not have been oblivious to the (legislative) developments
taking place in the East.
If, as De Wet470 argues, ratification by the Staten-Generaal was an
absolute prerequisite for the validity of any legislation in the East Indies,
an interesting argument presents itself in that the only clear ratification by
the Staten-Generaal appears to have been in the Octrooi of 10 January
1661, in terms of which those articles of the Political Ordinance dealing
468
See the preamble to the Octrooi of 1602, as discussed above.
469
Article 35 as quoted in note 464 above.
470 1958(b): 95.
82
with intestate succession were expressly made applicable to the
colontes.?" For the rest, it could therefore be argued that the Political
Ordinance was never validly applied in the East Indies. Nonetheless,
even if, as Van Zyl472opines, the VOC was aware of the fact that it had no
power to legislate, it is interesting to note that neither the VOC nor the
Staten-Generaal ever appeared to have made any attempt to nullify the
actions by the "Legislatures" at the various outposts.f" Therefore,
although they were never ratified, they were also never expressly rejected;
this despite the fact that the VOC had in 1660 informed the Staten-
Generaai that "geen vast recht" obtained in the East Indies.474 lt is
therefore not too far-fetched to assume that the legislative and other
developments at the Cape acquired force of law by tacit ratification by the
Staten-Generaal.
(iv) Why would the Staten-Generaal specifically grant legislative competence
to other companies, but not to the VOC? Van Zyl475argues that "[t]he only
reason to account for it is this, that the Dutch East India Company was not
a colonizing, but essentially only a trading company."
This argument, although not without merit, cannot be supported. It can be
conceded that the Octrooi contains many references to the VOC as a
trading company as opposed to an instrument of colontsation.f" By the
same token, the instructions issued by the VOC to Van Riebeeck also
create the impression that colonisation was (at least initially) not intended
to take place.477
471
De Wet 1958(b): 95; Swanepoel1958: 23; Visagie 1969: 34.
472 1907: 147.
473
Indeed, the vac later permitted the sub-dependencies in the East Indies to deviate from the
Statutes of Batavia as a result of geographical separation and varying local conditions-see Stock
1915: 329; Roos 1897: 2.
474
See De Wet 1958(b): 94, 95 and 1985: 33.
475 1907: 14l.
476 See articles 34 and 35.
477 For example, see Van Zyl 1908: 10.
83
However, it is submitted that the mere possibility that colonisation might
not have been an expressly-stated objective of the VOC's activities in the
East Indies cannot without more be used as a basis for justifying Van Zyl's
conclusion that this (i) was the reason why the Staten-Generaal expressly
dictated the law and procedures to be followed by other companies478but
did not do the same for the VOC and (ii) serves as proof that the VOC was
never vested with legislative cornpetence.f" To begin with, a colonisation
objective is not a sine qua non for the granting of legislative competence.
These issues must be treated separately. In this regard, the settlement at
the Cape serves as a prime example: The territory in question was res
nullius that became Dutch property by way of occuoeuoï" The fact that it
may have been a trading as opposed to a colonising functionary that
exercised the occupatio is irrelevant. Moreover, it stands to reason that
some or other body of legal rules and norms would have to be applied in
the new territories in order to ensure the "maintenance of good order
policy and justice.,,481 It is therefore submitted that it would be simplifying
things too much if it were to be accepted that the Staten-Generaal granted
the VOC the authority to establish Court structures and to appoint "officers
of justice" without either prescribing the legislation to be applied by them,
or, in the alternative, intending them to legislate of their own accord.482
478
Other companies include the Dutch West India Company (West-Indische Compagnie) which
received its Octrooi on 3 June 1621 although detailed prescriptions regarding the administration
of justice were only issued on 13 October 1629 in which, amongst others, the Political Ordinance
of 1580 was applied in the West Indies (see the references to and brief comment on Spies v
Lombard 1950 (3) SA 469 (A) at note 506 below); the Paul de Loando Company (instructions
received on 5 July 1642) and the Dutch Brazil Company (instructions received on 23 August
1636). All of these companies received far more comprehensive instructions pertaining to the
administration of justice than the VOC did-see Van Zyl 1907: 138 - 141; Visagie 1969 38, 39
(with reference to the Dutch West India Company).
479
See Van Zyl 1907: 138 - 141.
480
De Wet 1958(a): 163.
481
See article 35 of the Octrooi of 1602 (per Van Zyl 1908: 137).
482
Swanepoel (1958: 14) also does not support Van Zyl's view, and is of the opinion that article 35
implies "die een of ander wetgewing en verhore."
84
(v) Finally, as Stock483 mentions, it must be borne in mind that the Statutes of
Batavia (discussed below) did not comprise only local (that is to say
Batavian) laws, but also consisted of the "laws made by the States-
General of the Netherlands and the Instructions and Ordinances of the
XVII." Indeed, as will be seen below, the Political Ordinance of 1580
(which was properly promulgated by the States of Holland) is one of these
statutes.t'" Moreover, the Political Ordinance was expressly applied to
the West Indies by the Staten-Generaal, a fact which strengthens the
presumption that the latter body had no reservations regarding the
worthiness of this piece of legislation.485 It is consequently submitted that
the Statutes of Batavia are therefore not entirely comprised of legislation
of dubious force and effect.
The preceding factors lead only to two possible conclusions, namely (i) that the
Staten-Generaal intended the law of the United Netherlands to be applied in the
East Indies, or (ii) that the Octrooi of 1602 was worded in such a way as to permit
an interpretation that could, at the very least, provide for the Staten-Generaal to
approve tacitly any legislative activity undertaken by the vac in the East Indies.
It is suggested that the latter argument, which could for the sake of convenience
be termed the "interpretation argument" does not appear to have received due
recognition.486
483 1915: 330.
484 De Wet 1958(b): 94.
485
See Spies v Lombard 1950 (3) SA 469 (A) at 482 (A) - (C).
486
Also see Van Zyl 1983(a): 433 who is of the opinion that the States of Holland, the vac, the Raad
van Indie and the Politieke Raad at best had delegated competence in this regard (cf Visagie
1969: 39 and 65). Van Zyl does not, however, substantiate this submission. Although Swanepoel
(1958: 13, 14) is of the view that article 35 implies "die een of ander wetgewing en verhore", he
appears to use this as a basis for arguing that this implication could not be used to justify the
argument that a specific legal system (in this case the law of the States of Holland) was intended
to be applied in the East Indies. Swanepoel therefore stops short of suggesting that article 35
could, especially when considered in conjunction with the factors highlighted above, be taken a
step further to imply that legislative competence (i.e. the ability to promulgate new and context-
specific legislation) was granted, as opposed to a mere indication as to which specific existing
body of law was to be applied in the East Indies.
85
Conclusion (i) is problematic simply because of the fact that, in 1602, there was
no such "uniform" law in the Netherlands, and therefore no "default" body of law
that could automatically be applied in any of the outside territories.487 On the
other hand, conclusion (ii) is, to a large extent, based on an inferential argument
and is therefore not entirely flawless. Nonetheless, it is submitted, on the basis
of the inferences drawn above coupled with the practical necessity of having a
governmental system that was capable of promulgating context-specific
legislation where required, that conclusion (ii) is to be preferred.
In closing it is submitted that the preceding discussion shows that the debate as
to whether or not the VOC was authorised to legislate is not as clear-cut as
certain authors488 appear to believe. Nevertheless, there is no doubt that article
35 of the Octrooi of 1602 provided, inter alia, for the VOC to establish Court
structures with judicial officers in its territorles.t'" As far as the Cape of Good
Hope was concerned, it appears that the government had already begun to
distinguish between administrative and judicial functions as early as 1656,490and
express mention is made of a Raad van Justitie at the Cape in 1682.491 An
inferior Court, the Col/egie van Commissarissen van de Cleijne Zaken, was
established in 1682, and the first magistrate (Landdros) was appointed three
years later.492 The Raad van Justitie however remained the highest Court in the
Cape with respect to both criminal and civil rnatters.t'"
487 De Wet 1958(b): 84; Visagie 1969: 38.
488 For example, see Van lyl 1907: 132 et seq; De Wet 1958(b): 85, 88, 90, 94; Van lyl 1983(a): 425.
In one instance De Wet (1958(b): 90) does however caution that it would be "safer" to assume
that legislative competence was not granted to the vae.
489 Wessels 1908: 355.
490 De Wet 1958(a): 164; Van lyI1983(a): 429; Visagie 1969: 41, 42.
491 De Wet 1958(a): 165. The Road van Justitie was only formally convened and separated from the
Politieke Raad in 1685-see De Wet 1958(a): 165.
492 De Wet 1958(a): 165; Botha 1921: 408; Visagie 1969: 52.
493 Visagie 1969: 45.
86
lt is at this point that the history of the reception494and development of Roman-
Dutch law as the common law of South Africa is worthy of special consideration.
It is often commonly accepted that the common law of South Africa is that which
obtained in the province of Holland during the "sixteenth and seventeenth
centuries as received and developed in South Africa during the nineteenth,
twentieth and twenty-first centuries.,,495 But, as De Wet496 points out, this
statement should not be accepted without due appreciation of the events leading
thereto. That this is so is clearly illustrated by historical fact: The Republiek der
Verenigde Nerderlanden consisted of a number of provinces that each exercised
sovereignty with regard to their legal systems, with the result that no uniform
system of law applied in the Republic.?" The province of Holland was merely
one of the provinces of the Republiek der Vereenigde Nederlanden, and, as
such, there is no specific reason why the laws of that particular province (and no
other) should of necessity have applied to the territories colonised by the
Dutch.498 As De Wet499mentions:
Suiwer juridies gesien, het die Hollandse reg in die gebiede van die Kompanjie net so
min aanspraak gehad op gelding as wat dit in die verowerde "Generaliteitslande", in
Nederland self geleë, gehad het.
How this came to happen is, however, quite fascinating. In July 1620 the
Governor-General of Batavia, Jan Pietersz Coen, sent a report to the VOC in
which he requested the Here Sewentien to advise him, inter alia, as to the taxes
to be levied regarding Jacatra; a territory that he had conquered the previous
494
Swanepoel (1958: 7) notes that the term "Roman-Dutch law" was used for the first time in 1652,
the same year that Van Riebeeck landed at the Cape. It therefore appears that it is probably
incorrect to speak of the "reception" of Roman-Dutch law at the Cape as taking place in that
year.
495 Thomas 2005: 296.
496 1958(b): 84.
497 De Wet 1958(b): 84; Swanepoel1958: 12.
498
Spies v Lombard 1950 (3) SA 469 (A): 481 (H) - 482 (A); De Wet 1958(b): 84.
499 1957: 237.
87
year and that was later to be named "Batavia.IJ50o De Wet501 mentions that it
appears as if the Here Sewentien misinterpreted this request as being a request
to determine the civil law to be applied in Jacatra, and, in a letter dated 4 March
1621, stated that the Political Ordinance of 1580 (as adapted by the Plakaten of
13 March 1594 and 18 December 1599) was to be applied to the territory in
question502 (which in the interim had been renamed).503 This instruction was
reinforced by a subsequent letter dated 6 December 1621 in which Coen was
instructed to ensure that the requirements of the Political Ordinance were strictly
complied with regarding the solemnisation of marriages.504 It is, however, clear
that the vac's letter of 4 March was of little help in solving the problem for which
it was originally requested as the issue of taxation is covered by neither the
Ordinance nor the Plakaten.505 As such, it appears that a mere oversight may
have been responsible for the application of the law of Holland in the East
Indies.506
500
De Wet 1958(b): 87; Visagie 1969: 28.
501 1957: 237, 238.
502
As De Wet (1957: 242) mentions, if it is true that the Here Sewentien misinterpreted Coen's
request for advice, he must have been dumbfounded when he received their reply in 1621, as, in
dealing (inter alia) with the law of marriage and of succession, the Political Ordinance of 1580
was absolutely useless as a means of regulating matters of taxation-see De Wet 1957: 242.
503
De Wet 1958(b): 88. Visagie (1969: 29) opines that, although ultra vires, this letter provides the
first indication of a definite policy regarding the body of law to be applied in the East Indies.
504
De Wet 1957: 244.
505 De Wet 1957: 242.
506
See Visagie 1969: 30; 36. Hahlo and Kahn (1968: 572) appear to adopt a more pragmatic point of
view. According to them, "[t]he reason why the law of Holland was adopted in preference to the
laws of the other provinces was, simply, that as the wealthiest and most powerful of the
provinces Holland exercised the predominant influence in the affairs of the vac. and supplied
most of its directors, officers and servants. Thus it came about that throughout the period of
Company rule the law of Holland was the law of the Cape." In Spies v Lombard 1950 (3) SA 469
(A), Van den Heever JA was of the view that the Political Ordinance of 1580 became applicable in
the East Indies by a more circuitous route, namely due to its application in the West Indies,
where it had been applied by an Ordre van Regieringe of 13 October 1629 (although article 59 of
the latter Ordre mistakenly refers to the date of the Ordinance as being 1582 rather than 1580-
see Visagie 1969: 37 (note 17)). According to Van den Heever JA (c[Visagie 1969: 37, 38 and 76
and De Wet 1985: 42 (note 101) who reject this view), Dutch law accepted that a federal
directive such as the one in question did not only apply to that specific colony, but that it was
applicable to other Dutch colonies as well-see 482 (A) - (H). This point of view therefore
appears to accept a type of "cross-pollination" between the law applied in the East and West
Indies. Nonetheless, irrespective of which route is accepted as being the one leading to the
application of the Political Ordinance of 1580 in the East Indies, the fact remains that it was
applied there and was, as a consequence hereof, later applied at the Cape, leading Visagie (1969:
88
As seen above, it has been argued that the instructions contained in the letters
sent by the vac (and, indeed, any legislation "promulgated" by the vac and its
officials) were ultra vires as the charter granted to the vac by the Staten-
Generaal made no express mention of legislative competence to be exercised by
the former.sO? Furthermore, there appears to be doubt as to whether or not this
competence was ever granted subsequent to the granting of the original
charter.soB Nonetheless, the fact remains that the law of the province of Holland
was applied in the East Indies.sOg In so doing, the Political Ordinance, amongst
others, was incorporated into legislation that was drafted under the instruction of
Governor-General De Carpentier in 1625,510ostensibly in consequence of the
letter of 4 March 1621.511 When, in 1635, the vac decided to appoint the first
fully-fledged legal practitioner in the East Indies, the task of developing this
legislation was taken a step further. To this end, Advocate Jan Maetsuycker+"
compiled and drafted the Statutes of Batavia that were enacted in 1642.513 The
Statutes included an adaptation of the Political Ordinance of 1580 under the title
Commissarissen van Huwelijks Zaken; a title that was enacted with a view to
streamlining the regulation of marriage.s14 This newly-drafted legislation would
76) to conclude that the entire body of law as applied at the Cape was based on custom. On the
other hand, De Wet (1985: 42) submits that only those laws that were expressly made applicable
to the East Indies by the Staten-Generaal applied proprio vigore to the Cape, while the
remaineder acquired force of law through custom. It is submitted that the "interpretation
argument" proffered earlier can provide a solution to these differing viewpoints.
507 De Wet 1958(b): 88.
508 De Wet (1958(b): 90) mentions that certain authors have attempted to construe the granting of
such authority in certain instruetie that were later issued by the Staten-Generaal to the VOC in
1609 and 1617, but that these attempts are unconvincing.
509 Visagie 1969: 36; 38.
510 In order to supplement the Plakaten. it was decided that the common law as applied in the
"Vereenigde Nederlanden" was to be applied-see De Wet 1958(b): 89.
511 Visagie 1969: 31.
512 Maetsuycker took office on 7 October 1636, with the main aim of advising the Road van Justitie
in Batavia regarding Dutch substantive and procedural law-see Visagie 1969: 32.
513 De Wet 1958(b): 93, 94. It appears that these statutes were originally intended to be of a
provisional nature. However, regardless of the intended degree of permanence, the validity of
these statutes is also debatable: See Visagie (1969: 33) who reiterates (i) that neither the Road
van Indie nor the Here Sewentien had the capacity to promulgate this legislation and (ii) that no
record of any express approval of these statutes by the Staten-Generaal is to be found.
Nevertheless, he concedes that the statutes "as gesaghebbend in die Kompanjie-gebied beskou
[is]."
514 Botha 1914: 252; De Wet 1958(b): 93, 94.
89
henceforth apply in the East Indies, and, as a consequence thereof, in the areas
falling under its junsdlcnon.?"
As mentioned earlier, the settlement at the Cape of Good Hope was under the
jurisdiction of the Raad van Indie seated in Batavia.516 As such, the legal system
as it applied in Batavia would of necessity apply to the Cape. Indeed, as early as
1657, a letter was addressed to the free-burghers in which it was intimated that
they were subject to the "wetten, ende rechten" (statutes and laws) as they
applied in the East Indies.517 To this end, therefore, the Statutes of Batavia
(incorporating the Political Ordinance of 1580) were also applied in South
Africa.518 For purposes of this analysis it is of critical importance to note De
Wet's519observation that as far as substantive law was concerned, the Statutes
at this time regulated little more than the formalities pertaining to marriage and
the prohibited degrees of affinity. It can therefore be assumed that the law of
marriage as applied in Batavia was applied at the Cape of Good Hope as from
the earliest days of Dutch rule,52othereby constituting the platform from which the
entire South African body of (civil) matrimonial law later developed.v"
515
The Statutes of Batavia were reviewed and re-drafted in 1766, after which they were submitted
to the vac for ratification. This, however, never occurred (see Visagie 1969: 35). Copies of these
new Statutes (which were later named after the Governor-General of Batavia at the time and
consequently came to be referred to as the "Van der Parra code") were sent to the Cape, but
never acquired force of law there-see Stock 1915: 332. Nevertheless, it is interesting to note
that the "new" statutes retained the erstwhile provisions regarding the formalities pertaining to
marriage and the prohibited degrees of affinity-see De Wet 1958(b): 95.
516
See the introductory paragraph to 3.4.7.1 above.
517
See De Wet 1958(a): 167 who is of the view that Van Riebeeck must therefore have been in
possession of a copy of the Statutes. This view is not shared by Roos (1897: 6) who opines that
the first copy of the Statutes was only received at the Cape in 1708. Others, (see the authorities
quoted by Stock 1915: 328) are of the opinion that the Statutes were only applied at the Cape
after a resolution to this effect was adopted on 12 February 1715. Stock (1915: 328) accepts the
1708 viewpoint and consequently considers the 1715 resolution to be of exaggerated
importance.
518
As Visagie (1969: 66, 67) states: "Die posisie kom eienaardig voor. Die Goewerneur en sy Raad
het geensins die bevoegdheid gehad om te bepaal watter reg, al is dit dan ook die Statute van
Batavia, aan die Kaap sou geld nie. Daarbenewens is dié statute in elk geval van toepassing
verklaar op die gebiede van die Oos-Indiese Kompanjie en wel deeglik toegepas."
519 1958(a): 168.
520
Spies v Lombard 1950 (3) SA 469 (A) at 482 (D) - (E): "From the appendices to the late Mr.
Scheeper's unfinished thesis on 'Intestate Succession' it is clear that the Political Ordinance of
1580, in so far as it related to these subject matters, was repeatedly applied to the Cape by
90
The abovementioned state of affairs places an interesting spin on the
development of South African family law in particular and common law in
general, as it could be argued that the vac's letters of 1621522 (coupled with the
legislation commissioned by De Carpentier in 1625) in fact constitute the very
reason for the application of the (Roman-Dutch) law of Holland in South Africa,
and, therefore constitute one of the cornerstones on which the entire South
African legal system is founded.523 Moreover, if one considers the subject matter
competent authority" (italics added). Van den Heever JA's use of the words "these subject
matters" may be confusing. This is so because of the reference to the unfinished treatise on
"Intestate Succession" in the first part ofthe sentence. However, it is submitted that Van den
Heever JA was not merely referring to intestate succession when he referred to "these subject
matters." Firstly, the paragraph read as a whole makes it clear that he was referring to the
Political Ordinance's content regarding matrimonial matters as well as both testate and intestate
succession. Secondly, if only matters of intestate succession were being referred to, he might
have made use of wording such as "this aspect" instead of "these subject matters." Thirdly, in
the sentence immediately following the one cited, Van den Heever JA states that "[tlo remove all
possible doubt the Estates-General again applied it with modification by the Octrooi of 10 Jan.
1661." It is submitted that the reference to "it" refers to the Political Ordinance in a broader
context and not merely to the law of intestate succession as such.
521 Many of these principles still apply today. For example, the provisions dealing with the
prohibited degrees of affinity are still applied in modern South African family law.
522 4 March and 6 December, see above.
523 Swanepoel (1958: 21 et seq) is of the opinion that the view that the letters of 1621 are
responsible for the introduction of Roman-Dutch law in the East Indies is incorrect as, firstly, the
term "Roman-Dutch law" was only coined by Van Leeuwen in 1652 and that neither the term nor
the system was in existence in 1621. Secondly, Swanepoel refers to a statement made by Beyers
to the effect that the letter received in March of 1621 established the law of Holland in Batavia
and that it provides "die grondslag waarop die Romeins-Hollandse reg berus in die gebiede
begrepe in die Oktrooi." According to Swanepoel, this view is incorrect as the Roman-Dutch law
was comprised of far more than merely the Political Ordinance and the other plakaten
mentioned in the letters of 1621. Although these views are not without merit, it is submitted
that they are somewhat exaggerated. Although it can be conceded (i) that the term "Roman-
Dutch law" may only have been coined in 1652, and (ii) that this body of law undoubtedly was
comprised of far more than merely the sources referred to in the letter of 1621, the important
point to be made is that the letter introduced a cornerstone of the law of Holland (namely the
Political Ordinance of 1580) which, in turn, constituted a cornerstone of that which was later to
become Roman-Dutch law which, in turn, was later to be adapted in order eventually to become
the common law as we understand it and apply it in contemporary South Africa. In addition,
Swanepoel (1958: 22) states that the letter of 1621 might be interpreted in such a way as to
provide for the possibility of the laws in their original format being adapted in order to suit local
conditions; an interpretation which Swanepoel uses in order to strengthen his argument that the
sources imported by the letter could be given ,on ander kleur." Even if this were so, it is
submitted that this observation does little to support Swanepoel's argument, as the fact remains
that the vac specifically incorporated these sources into the East Indies in their original format.
The possibility of modification in order to suit local conditions does little to change the fact that
the sources referred to in the letter contributed in no small manner towards laying the
foundation for the establishment of the law of Holland in the East Indies. Furthermore, at least
91
of the Political Ordinance of 1580 and the fact that this Ordinance provided the
basis for the law of marriage throughout the Dutch colonies in the East Indies,524
it becomes clear that the law of marriage is one of the building blocks of the
entire South African legal system as we know it tOday.525
3.4.7.2 The law of marriage in South Africa: 1652 - 1838
To return to the development of the law of marriage in South Africa, it is clear that
the common law of Holland formed the common law of the Cape of Good
Hope,526 and, in accordance with the chain of command illustrated in the
preceding discussion, a right of appeal from the local Courts of all out-stations in
the East lay to the Raad van Justitie at Batavia.527
As far as the law of marriage is concerned, the Statutes of Batavia played an
important role in that they regulated the formalities pertaining to marriage and the
prohibited grounds of affinity.528 As such, these regulations were gleaned from
the Political Ordinance of 1580 which, as seen above, the VOC had already
in as far as the Political Ordinance of 1580 is concerned, the subsequent "adaptations" did not
deviate substantially from the original versions-see De Wet 1958(b): 93 - 95. In consequence of
these and other arguments, Swanepoel (1958: 26) is of the opinion that the letter of 21 February
1657 (in terms of which the free-burghers were informed that they were subject to the "wetten,
ende rechten" as they applied in the East Indies) is the true reason for the adoption of Roman-
Dutch law in southern Africa, as this body of law only applied to the free-burghers (as opposed to
other employees of the VOC). Again, it is submitted that this argument is only partially valid. The
law of marriage serves as an example in this regard, as this component of what was later to
become known as "Roman-Dutch law" was applied throughout the Cape to free-burghers and
company employees alike as from the earliest days of Dutch rule. Swanepoel's argument that
"Roman-Dutch law" was only applied to the free-burghers therefore cannot be supported.
524
De Wet 1985: 34 and 42 (note 101).
525
In 1950 the Appellate Division confirmed the fact that the pre-1652 plakaten of the States of
Holland that had been expressly promulgated in South Africa indeed formed part of our law-see
Spies v Lombard 1950 (3) SA469 (A) at 481 (H) - 483 (A); Van ZyI1983(a): 438.
526
Wessels 1908: 356, 357; Van der Merwe 1995: 236. De Wet 1958(b): 84 et seq mentions that this
fact should not be accepted as a matter of course as it must be remembered that the law of
Holland was merely the law as applied in one of the provinces of the Republiek der Vereenigde
Nederlanden. Nonetheless, De Wet concludes that, for various reasons, the law of Holland
became the common law of the East Indies (1958(b): 96, 97).
527
De Wet 1958(a): 164; Wessels 1908: 356.
528
De Wet 1958(a): 168.
92
instructed Governor-General Coen to apply in the East Indies in 1620 (albeit that
the Statutes were actually only applied as from 1625).529
Between 1652 and 1665 marriages at the Cape of Good Hope were solemnised
by the Politieke Raad 530 (from which, it will be remembered, a separate Raad
van Justitie was only officially constituted in 1685). Banns were called in the
Council Chamber, after which the marriage was solemnised by the Secretary of
the Raad in the presence of all the council rnernbers.F" The position changed in
1665 when the first clergyman was appointed-marriages were henceforth
solemnised by him after the Raad had granted permission for the marriage to
take place and after the banns had been called on three occasions.532
In terms of the Statutes of Batavia (which as far as marriage was concerned, as
seen above, were based on the Political Ordinance of 1580),533the matrimonial
courts were tasked with combating "abuses and irregularities" regarding
rnatrirnonial law.t" To this end, a resolution was taken by the Politieke Raad on
28 December 1676 in terms of which the Collegie van Commissarissen van
Huwelijks Zaken-a special Court dealing with matrimonial matters and modelled
on a similar Court in Batavia-was established.t" This lower Court was subject
to the jurisdiction of the Raad van Justitie as the superior Court in the Cape.536
In accordance with the principles elucidated above, a right of appeal lay from the
Cape Courts to the Raad van Justitie in Batavia.537
In consequence of this new development, the prospective spouses were now
required to appear before the four commissioners (comprising two officials and
529 See the discussion above.
530 Fourie v Minister of Home Affairs 2005 (3) SA429 (SeA) at par [72].
531 Botha 1914: 251; Visagie 1969: 55.
532 Visagie 1969: 55; Botha 1914: 25l.
533 DeWet 1958(b): 94.
534 Botha 1914: 252; De Wet 1958(b): 93,94.
535 Botha 1914: 251; De Wet 1958(a): 166.
536 Botha 1914: 253.
537 Botha 1914: 253.
93
two civilians) of the Col/egie van Commissarissen van Huwelijks Zaken.538 lf
satisfied that the couple complied with the statutory requirements, the
commissioners granted a certificate permitting the banns to be called by a
c1ergyman.539 The appearance before the commissioners was generally followed
by a celebratory dinner that was attended by friends and relatives of the
couple.54o The Banns were required to be called on three successive Sundays,
and any objections raised to the marriage were referred back to the Matrimonial
Court for adjudication.P" If no objection was raised, the marriage was
solemnised by the minister of their church.542
The Col/egie van Commissarissen van Huwelijks Zaken existed as a separate
entity for approximately 35 years before being merged with the earlier-
established Col/egie van Commissarissen van Cleijne Zaken in 1711, to form the
Col/egie van Commissarissen van Cleijne Ziviele en Huwelijks Zaken. 543
Initially, all prospective spouses had to appear before the commissioners in Cape
Town. As from 1 June 1790, parties living elsewhere were permitted to have
their banns called by their local minister or announced by the local magistrate,
after which a certificate to this effect was granted and submitted to the
commissioners in Cape Town for approval. Once approved, the marriage could
be solemnised in the local parish if the parties so wished.544
The final decades of the eighteenth century witnessed the steady decline of the
VOC, and, on 16 September 1795, a century and a half of Dutch rule came to an
end when the Cape of Good Hope was occupied by Britain. While the former
development could largely be attributed to corruption and mismanagement, the
538
DeWet 1958(a): 166; Botha 1914: 252; Visagie 1969: 55.
539 Botha 1914: 252; Visagie 1969: 55.
540 Botha 1914: 252.
541 Botha 1914: 253.
542
Hahlo 1985: 15; Botha 1914: 251; Visagie 1969: 55.
543
DeWet 1958(a): 166; Hahlo 1985: 15; Botha 1921: 421.
544 Visagie 1969: 56; Botha 1914: 255.
94
latter development had come about as an indirect result of the French
Revolution, which had led to the demise of the United Republic of the
Netherlands and to the establishment of the Batavian Republic and, as a
consequence hereof, a hasty attempt by Britain to occupy the Cape before it fell
into French hands.545 A military government, under General James Henry Craig
and Admiral George Keith Elphinstone, initially took control, and all the
inhabitants at the Cape were required to undertake an oath of allegiance to their
new British masters.P" Despite this development, the legal system remained
largely as before. This much is evident from a proclamation dated 11 October
1795 in which the Raad van Justitie was reinstated and ordered to administer
justice in the name of the British monarch "in the same manner as has been
customary till now, and according to the Laws, Statutes, and Ordinances which
have been in force in this Colony ... ,,547The first period of English occupation at
the Cape therefore did not bring about dramatic changes to the substantive law
at the Cape.548
Following the Treaty of Amiens that was concluded on 28 March 1802, the Cape
was returned to Dutch control, although this only came to be known there in
March 1803.549 In anticipation of this development and as a result of the utterly
confusing state of affairs regarding the prevailing administration of justice,55oa
commission of enquiry had earlier been convened under Jacob Abraham de Mist
in order to make recommendations regarding the governance and management
of the Cape. The work done by him in this regard was of such an exceptional
standard that he was later appointed as Commissary-General in the Cape; a rank
that was superior to that of the governor (J.W. Janssens) serving alongside
545
Grutter and Van Zyl 1982: 16.
546
Grutter and Van Zy11982: 17.
547
Per De Wet 1958(a): 172.
548
One significant change was however occasioned in 1797 when the Road van Justitie was reduced
in number and the possibility was introduced of an appeal in civil matters to a Court presided
over by the Governor, with a further appeal to the King in Council-see De Wet 1958(a): 173.
549 Van Zyl 1907: 135.
550 Wessels 1908: 359.
95
him.551 It is noteworthy of mentioning that these recommendations were, from
the outset, viewed as being of a transitional nature pending the drafting of a
comprehensive charter that would be subjected to the approval of the Dutch
Legislature (which charter, incidentally, never materialised). According to De
Wet552one of the most innovative of the developments occasioned in the wake of
De Mist's recommendations was the re-composition of the Raad van Justitie so
that, for the first time in the history of the Cape colony, the Raad was fully
comprised of qualified jurists. Moreover, as far as matrimonial law was
concerned, De Mist broke new ground in 1804 with the introduction of the civil
marriage to the Cape-a development that appears to have been occasioned in
consequence of the practical reality of a lack of clergymen in the remote outposts
of the Cape rather than an outright rejection of marriage as a religious
institution.553 In rural areas marriages could, as from 1 January of the following
year,554 be concluded before a landdrost and two heemraden,555 who, in
consequence of De Mist's report, had by now become responsible for all civil
administration in their respective districts.556 Bya similar token, the Collegie van
Commissarissen van Cleijne en Huwelijks Zaken was competent to solemnise
marriages in Cape Town itself.557
The second period of Dutch rule at the Cape of Good Hope was short-lived:
Britain and France again went to war, and on 10 January 1806 the English, under
Sir David Baird and Sir Hope Popham, regained control of the Cape.558
According to Grutter and Van Zyl559the brevity of the Dutch rule between 1802
and 1806 "was unfortunate, because this administration promised to be the kind
of civil government which might have developed into a model of enlightened
551
Grutter and Van Zyl 1982: 18.
552 1958(a): 174.
553
Grutter and Van Zy11982: 18.
554
Botha 1914: 255 and 1921: 414.
555
Hahlo 1985: 15.
556
Wessels 1908: 361.
557
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SeA) at par [76].
558
Wessels 1908: 362.
559 1982: 17.
96
control." Once again, a military government was initially established, and the
Articles of Capitulation of 10 and 18 January 1806 again retained Roman-Dutch
law as the official substantive law of the Cape.560 British rule at the Cape was
confirmed by the Convention of London in 1814.561 Nevertheless, the influence
of English law could not be ignored, and its eventual infusion with the prevailing
law was inevitable, especially after English became the official language of the
Cape colony in 1822.562As Hahlo and Kahn563state:
Despite the official retention of Roman-Dutch law as the law of South Africa, however,
there was a general movement towards English law and institutions. The broad pattern
was one that repeated itself in almost every country where as a result of British
conquest a civilian system of Continental origin had to face the competition of English
law and institutions.
Matrimonial law became one of the first fields to experience the effects of the
new order when the concept of civil marriage as introduced barely two years
earlier by De Mist, was abolished.564 According to Sir David Baird, the previous
view by which marriage could be regarded as "a mere civil contract" was
rejected, and all marriages were now required to be performed by "an ordained
clergyman or minister of the gospel.,,565 In the country districts, the magistrate's
Courts could, however, still be approached in order to establish whether or not a
legal impediment to the prospective marriage existed.566
560
See Brand 2009: 71 who states that the Judges were however free to "formulate their own law of
procedure." The retention of the Roman-Dutch common law at the Cape was reaffirmed by both
the First and Second Charters of Justice (1827 and 1832 respectively)-see Hahlo and Kahn 1968:
576.
561 Grutter and Van Zy11982: 18.
562 Hahlo and Kahn 1968: 576.
563 1968: 576.
564 Hahlo 1985: 15, 16.
565 As per Farlam JA in Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [76]. Also see
Botha 1914: 256.
566 Botha 1914: 256.
97
The extent to which the strict requirements of the religious marriage were
enforced appears to be uncertain. For example, in Ex parte OOW,567 a case
dealing with the formalities of marriage in contemporary South African law,
Broome j referred to an opinion written in 1812 in consequence of a question
arising as to the validity of "marriages" solemnised at the Cape by someone
professing to be a cleric, while this was not so. The opinion expresses the view
that the "marriages" could not be nullified by virtue of the fact that the person in
question was not a minister of religion.568
The banns requirement was relaxed as from 1818, when it became possible for
prospective spouses to obtain a special license (at the cost of 200 rixdollars) that
enabled them to acquire the requisite certificate allowing them to marry in church
without the banns having to be called.569
In 1829 the ages of majority as prescribed in the Perpetual Edict of 1540 were, in
compliance with English law, reduced from 25 for males and 20 for females to 21
for both sexes.570
On 7 September 1838 the Marriage Order in Council was passed with the aim of
providing for persons of the Christian faith to marry one another.571 In terms
hereof, the Matrimonial Court was abolished, and orders for specific performance
regarding espousals could no longer be granted-aggrieved parties would
henceforth have to have recourse to claims for damages.572 The Order also
regulated the publication of banns573 and provided for the establishment of a
567 1987 (3) SA 829 (D).
568 At 832 (D) - (F).
569 Botha 1914: 256; Hahlo 1985: 16.
570
Kelling 1975: 17, 18. This would continue to be the case until1 July 2007 when the Children's Act
38 of 2005 further reduced this age to 18 years for both sexes.
571
See C.T.C. 1886(a): 64.
572
Lee 1931: 52; Van Warmelo 1954: 114.
573
Banns were to be published before the congregation of each spouse (in the event of them being
of different denominations of the Christian faith) on three consecutive Sundays prior to the
marriage. If this was not possible, a special license could be obtained from the Governor of the
Colony-see C.T.C. 1886(a): 64; Hahlo 1985: 16.
98
marriage register. In addition, the Order provided that secular marriage officers
could be appointed in instances where Christian ministers were not available.574
All things considered, Wessels575 concludes that the Order in Council did not
depart substantially from the Political Ordinance regarding the requirements for a
valid marriage.
In 1860 the Cape Legislature made provision for resident magistrates to be
appointed as marriage officers and for the Governor of the Colony to appoint
marriage officers to solemnise Jewish and Islamic marriages.576 Marriages could
still be solemnised by Christian ministers of religion if the parties so wished.577
The banns requirement was retained, but adapted so that the magistrate could
perform those tasks previously reserved for the Church.578 In addition, if the
banns had been called and no objection had been raised, a marriage solemnised
by a magistrate could no longer be set aside for lack of parental consent.579
It is, however, important to note that, although it undoubtedly widened the scope
thereof, the Act of 1860 did not reintroduce secular marriage to the Cape.
Indeed, one of the most dramatic consequences of the Order in Council of two
decades earlier was that it permitted secular marriages to be concluded for the
574 Fourie v Minister of Home Affairs 2005 (3) SA429 (SCA)at par (77); Hahlo 1985: 16.
575 1908: 439.
576 Marriage Act 16 of 1860 (C).
577 See C.T.C. 1886(b): 121 who describes the state of affairs in the following terms: "This law,
however, is only permissive, that is, merely allowing the subject the privilege of solemnising
marriage in this way. The alternative to those who do not care about being married by a
Magistrate, or have a sentimental objection thereto, is, to be united in the bonds of matrimony
by a 'Minister of Religion: that is to say, by the Minister of a particular sect of the Christian
faith." It is interesting to note the author's sentiments regarding the fact that the parties may
"not care about being married by a Magistrate" or that they might have "a sentimental
objection" to doing so-in today's terms these sentiments would probably be expressed in
different terms, in the sense that the parties might object to a religious marriage, and not the
other way around!
578 C.T.C.1886(a): 65.
579 Schedule A paragraph 28, per Hahlo 1985: 92 (note 26).
99
first time since 1806.580 The statement by Van der Vyver and Joubert581to the
effect that
[d)ie reëling was dat die huwelik bevestig word voor 'n leraar, maar in 1860 is daar weer
voorsiening gemaak vir gewoonweg burgerlike huwelike toe resident magistrate as
huweliksbevestigers aangestel is ...
should therefore be read with caution, as it could lead to the conclusion that the
1838 Order did not make provision for the conclusion of secular marriages, but
that such marriages were only permitted in 1860.
The provisions of the 1838 Order in Council were systematically adopted by the
other colonies in South Africa,582and, at the time of the coming into being of the
Union of South Africa in 1910, each colony had its own marriage laws. As the
Order of 1838 differed little from the Political Ordinance of 1580 it may be said
that the English influence on the law of marriage was minimal,583 and that,
despite the individual legislation "broadly speaking ... the marriage ceremony in
South Africa [at the time was] identical with that instituted by the Politique
Ordonnantie of 1580." 584
3.4.7.3 The influence of Christian Nationalism
At this point it is apposite to digress from the main topic in order briefly to discuss
the influence of Calvinism and Christian-Nationalism in pre- and post-Union
South Africa.585 The point of departure can be taken from the revocation of the
Edict of Nantes by Louis XIV in 1685, as a result of which many French
580
Cronjé 1990: 164; Cronjé and Heaton 2004: 5.
581 1991: 462.
582
The first colony to do so was Natal, by Ordinance 17 of 1846.
583
See for example Hahlo and Kahn 1968: 578
584
Wessels 1908: 439 (italics added).
585
As Bekink 2008: 483 mentions: "Before the dawn of the democratic dispensation, the former
South African state was often perceived to favour Christianity. Such favouritism was specifically
attributed to the Calvinistic background of the government."
100
(Calvinist) Huguenots left France to settle in other European territories and areas
as far afield as America and South Africa.586 Over the next two hundred years
the Huguenots who settled in South Africa came to regard themselves as
Afrikaners and were bound together in the religious tradition of the Dutch
Reformed Church (Nederduitse Gereformeerde Kerk) in the Cape Colony, which
was in essence a Calvinist Church.58?
The second British occupation of the Cape as from 1806 provided the catalyst for
developments which were to follow. As Sachs explains:
In order to get away from British government, British taxes and British notions of justice,
thousands of white Afrikaner farmers in the eastern Cape in the 1830's packed their
belongings into wagons and trekked into the interior of southern Africa. Experience had
taught them that it was easier to emigrate en masse than to rebel, and what had
already been a slow, unco-ordinated movement of the land-hungry became the
accelerated and organised exodus of the discontented. Probably the greatest of all their
grievances stemmed from the British doctrine of equality before the law, which enabled
missionaries to bring servants and ex-slaves to court to lay charges against their
masters... This was not the departure of outlaws, but the migration of a community
determined to maintain what it considered to be proper relations between masters and
servants.588
Upon moving into the interior the Boers encountered little resistance due to the
effects of the difaqane of the preceding decade by which the Zulu kingdom had
forced the migration of the African tribes and had occasioned a substantial
depopulation of these areas.589 The Boers created two republics in the territory
beyond the Orange and Vaal rivers (later the Orange Free State) and north of the
Vaal (the Zuid-Afrikaanse Republiek or ZAR). Patterson states that for the Boers
586 Hayes eta/1968: 428.
587 Hexham 1980: 198.
588 Sachs 1973: 68.
589 Sachs 1973: 68.
101
[t)he Old Testament was like a mirror of their own lives. In it they found the deserts and
the fountains, the drought and the plagues, the captivity and the exodus. Above all they
found a Chosen People guided by a stern but partial Deity through the midst of the
heathen to a promised land. And it was the Old Testament and the doctrines of Calvin
that moulded the Boer into the Afrikaner of today ... The doctrines which the Boers took
with them on their trek through the veld and the centuries were those of sixteenth
century CaIvr.r.usrn ...590
Although multiracial, multicultural and independent communities were created as
a result of the infusion of the Afrikaner and African peoples, Sachs rightly
mentions that "civic inequality and social distance" persisted along the same lines
as it had done prior to the abolition of slavery at the Cape.591 Thus while the
Constitutions of the two Boer Republics proclaimed equality for all, such equality
was restricted to Europeans, with the ZAR's Constitution categorically stating that
"the People will countenance no equality between Black and White in Church or
State.,,592
Whether the theological basis of the Dutch Reformed Church was constituted by
Calvinism in its true form is debatable, and is questioned by Hexham593who
states that there is little evidence to support "a continuous Calvinist tradition
before 1870" in the sense of one that adhered to the Synod of Dart (1616 _
1618). Instead, Hexham argues that the orthodox Calvinism that formed the
backbone of what was later to become Christian-Nationalism was propagated by
the Reformed Church (Gereformeerde Kerk) that had been formed in 1859 as a
breakaway from both the Dutch Reformed Church (prevalent in the Cape and the
Orange Free State) and the Dutch Re-formed Church (Nederduitse Hervormde
Kerk) that had become entrenched in the ZAR. This secession-which occurred
590
Per Hexham 1980: 195. Also seeRitner 1967: 18 (note 2).
591 Sachs1973: 69.
592
Per Sachs1973: 70.
593 1980: 197.
102
under a Dutch Minister by the name of Dirk Postma-found great support in the
ZAR under President Paul Kruger.594 As Hexham595states:
The existence of this strict Calvinist Church alongside the Dutch Reformed Church, has
led many commentators to attribute Calvinist attitudes to the Dutch Reformed Church
which in fact come from the Reformed Church.
The roots of the Christian-Nationalism movement can be traced to developments
in the Netherlands, where according to Hexham, a Calvinistic revival occurred
under Willem Bilderdijk (1756 - 1831) and later Groen van Prinsterer (1801 -
1876) during the 1800's in reaction to the increasingly liberalising Dutch society
in the aftermath of the Enlightenment and the French Revolution. Although
based on Calvinism to begin with, the politically-conscious Van Prinsterer created
the Anti-Revolutionary Movement which exhorted Christians to refrain from
thoughts of revolution which although "they did not appear to pose a threat to
Christianity, in fact struck at its core by denying the sovereignty of God in all
aspects of life.,,596This movement became known as Christian-Nationalism, and
under Van Prinsterer's successor (Abraham Kuyper [1837 - 1920]) the
movement gained such momentum in the Netherlands that the entire society was
influenced by it. From a South African perspective one of the most influential
developments was the establishment of the Free University of Amsterdam at
which a number of prominent South African Dutch Reformed theologians
received their training, and in this way contributed to the growth of the movement
in South Africa.59? The National Party was established in Bloemfontein in 1914
and later merged with General JC Smuts's South African Party to form the United
Party in 1934. Fundamentalist Nationalists under Dr DF Malan however refused
to accept the merger, and the breakaway party so formed (later called the
Reunited National Party) defeated the United Party and came to power in
594 Hexham 1980: 201, 202.
595 1980: 202.
596 Hexham 1980: 204, 205.
597 Hexham 1980: 206.
103
1948.598 Soon thereafter the policy of Apartheid was implemented, which in
essence was founded on Afrikaner Christian-Nationalist ideology, which Moodie
is reported having described as "a civil religion representing the integration of key
symbolic elements. These include major events in Afrikaner history, the
Afrikaans language, and Dutch Calvinism.,,599 Indeed, the latter beliefs were
increasingly used to justify Apartheid policies and principles.6oo
The effect of the new order on the South African social order in general and
family law in particular was pervasive and immediate, with a country-wide
legislative prohibition on marriages between "Europeans and non-Europeans=?'
(so-called "mixed marriages") being enforced as from 1949 in terms of the
Prohibition of Mixed Marriages Act 55 of 1949.602 Such "marriages" would
henceforth be null and void, although certain "concessions to border-line
cases,,603were made.604 In addition, the application of matrimonial property law
was also differentiated along racial lines: The "default" matrimonial property
system for South African marriages was (and still is) is the marriage with
598
Grutter and Van Zy11982: 52.
599
http://science.jrank.org/pages/8334/Apartheid-Rise-Afrikaner-Nationalism.html(accessed on 29
July 2009).
600 Gaum 2009.
601
The prohibition only applied to "marriages" between a "European" and a "non-European"
person-marriages between two persons of differing races were therefore valid provided that a
"European" was not involved-see Hahlo and Kahn 1960: 398.
602
This type of invasive legislation was however not altogether novel as marriage legislation in the
erstwhile colonies had sometimes been restricted in its application to marriages between two
white persons (Hahlo and Kahn 1960: 397). So, for example, in the Zuid-Afrikaanse Republiek,
the Transvaal Huweliks Ordonnantie 3 of 1871 applied to marriages between white persons only,
and separate legislation provided for marriages between "non-whites" (Law 3 of 1897 and
Proclamation 6 of 1900-see Hahlo 1985: 16; Sinclair and Heaton 1996: 195). Similarly, in Natal,
Law 46 of 1887 permitted black persons to marry in accordance with the Christian faith, unless
they had not been exempted from customary law (in which case special permission to do so was
required-Hahlo 1985: 16). These laws were abolished by the Marriage Amendment Act 12 of
1973 (SincIair and Heaton 1996: 197).
603
Hahlo and Kahn 1960: 398.
604
The Act contained a deeming provision (section 3) in terms of which a person whose appearance
was either decidedly European or non-European was deemed such until the contrary was
proved. An example of such a concession is found in section 1 which provides that, prior to its
nullification, the children born of a couple whose "marriage" had in good faith been solemnised
by a marriage officer retained their legitimate status.
104
community of property, and a rebuttable presumption to this effect applies.6os
However, in accordance with section 22(6) of the Black Administration Act 38 of
1927, marriages concluded between black persons were automatically regarded
as being out of community of property unless an antenuptial contract provided
otherwise or unless both of the parties to the marriage had in writing declared a
contrary intention to a magistrate, commissioner or marriage officer. This piece
of legislation therefore had the marginalising effect of treating marriages between
black persons in a diametrically opposite way as those entered into between all
other race groups.
On 1 January 1962 the civil marriage laws of the Republic of South Africa were
finally consolidated by the coming into operation of the Marriage Act 25 of
1961.606 The requirement that parties to all civil marriages concluded in the
Republic were generalll07 required to be at least 16 and 18 years of age in the
case of females and males respectivell08 was retained.609 Based in the main
on the principles contained in the Decretum Tametsi of 1563 and the Political
Ordinance of 1580,610 this Act regulates the formalities pertaining to the
conclusion of a valid civil marriage between two persons of the opposite sex611
and provides for the solemnisation of marriages by both secular and religious
marriage officers. Despite the fact that religious marriage officers are permitted
to solemnise marriages in terms of this Act, the Act itself "is concerned solely
605 Ede/stein v Ede/stein 1952 (3) SA 1 (A) at 10 (A) - (B) and 14 (G); Odendaa/ v Odendaa/2002 (1) SA
763 (W) at par [1] - [2].
606 Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [78]. The Act repealed or
amended the majority of the civil marriage laws as applied since the Order in Council of 1838
through pre- and post-Union South Africa-see the Schedule to the Act.
607 The Act makes provision for persons younger than the specified ages to marry with the
appropriate consent-see sections 24 - 26 of the Act.
608 Section 26 of Act 25 of 1961.
609 These requirements were originally contained in section lof the Marriage Law Amendment Act 8
of 1935. Persons younger than the prescribed ages could, in terms of the 1935 Act, marry if, over
and above the consent of their parents, the permission of the Minister of the Interior was
obtained-see Hahlo and Kahn 1960: 399.
610 Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [78].
611 See the discussion in Chapters 3 and 8.
105
with marriage as a secular institution,,612 and any religious significance of the
marriage is, for all intents and purposes, confined to that which the parties
themselves (or their religious denominations) ascribe thereto.
In 1970 the Marriage Act 613was amended so that the requirement of banns was
abolished in toto,614and the age at which girls could marry was decreased from
16 to 15 years of age. In 1984 the Act was again amended by the insertion of
section 24A that provides for the dissolution of marriages of persons under the
age of majority who have failed to obtain parental consent (or the equivalent
thereof)615 as well as for the consequences of such dissolution.P'" At the same
time, the Matrimonial Property Act 88 of 1984 also repealed articles 3 and 13 of
the Political Ordinance of 1580, as well as article 17 of the Perpetual Edict of
1540.617
As far as marriages between black persons were concerned, the Black
Administration Act 38 of 1927 distinguished between "marriages" and "customary
unions" between such persons, with only the former being recognised by law:
"Marriage" means the union of one man with one woman in accordance with any law
for the time being in force in any Province governing marriages, but does not include any
union contracted under Black law and custom or any union recognised as a marriage in
Block law under the provisions of section one hundred and forty-seven of the Code of
612
Fourie v Minister of Home Affairs 2005 (3) SA429 (SCA) at par [78].
613 25 of 1961.
614
Section 6 of the Marriage Amendment Act 51 of 1970 repealed sections 13 to 21 of the 1961 Act.
615
Such as the consent of a guardian (in this regard, see section 18 (3) of the Children's Act 38 of
2005 in terms of which all guardians of a minor must consent to the minor's marriage) or the
commissioner of child welfare (see 4.3 in Chapter 8 for a discussion of a proposed amendment in
this regard).
616
Section 24 A was inserted by section 34 of Act 88 of 1984.
617
See the schedule to the Act. The relevant provisions of the Political Ordinance of 1580 and the
Perpetual Edict of 1540 are discussed in 3.4.6 above. The abolition of article 17 finally did away
with the penalties prescribed in that section in terms of which the major party to a marriage
concluded in secret was permanently precluded from take any financial benefits from the
minor's estate. Although these penalties had, strictu sensu, been part of South African law since
time immemorial, it appears that they were, as Hahlo and Kahn (1960: 401) state "widely
ignored" in modern South African law.
106
Black Law contained in the Schedule to Law No. 19 of 1891 (Natal) or any amendment
thereof or any other law. 618
This definition, coupled with the Act's definition of "customary union" as "the
association of a man and a woman in a conjugal relationship according to Black
law and custom, where neither the man nor the woman is party to a subsisting
marriage" meant that the South African family law of the day failed to recognise
marriages "under Black law and custom", so that black persons only had the
option of the monogamous civil marriage open to them, with the result that the
principle of polygyny was not recognised. A further differentiation occurred in
that even if black spouses indeed chose to enter into a civil marriage, the
matrimonial property regime governing their marriage was the exact opposite of
that which applied to any other civil marriage in South Africa, in that complete
separation of property was presumeo.?"
"Marriages" that were entered into according to the tenets of specific religions
without being solemnised as civil marriages were also not countenanced by the
law, and no distinction was drawn between such "purely religious 'marriages"
that were potentially as opposed to de facto polygynous. In 1983 the Appellate
Division (at that time the highest Court in South Africa) summarised the legal
position in respect of Islamic marriages in the case of Ismail v Ismail:62o
This union can obviously not be regarded as a valid civil marriage. Two requirements
were lacking. Firstly, under our law, a marriage is the legally recognized voluntary union
for life of one man and one woman to the exclusion of all others while it lasts... Within
South Africa the monogamous concept of marriage is fundamental. In the instant case
the union was, ex facie the pleadings, a polygamous one even though there may have
618 Emphasis added.
619
The enactment of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988
entailed that as from 2 December 1988 all civil marriages in South Africa were treated equally
with the result that the default matrimonial property regime for all civil marriages is today the
marriage in community of property.
620 1983 (1) SA 1006 (A).
107
been "a tacit consensus between plaintiff and defendant to the effect that their
marriage would be monogamous". Their tacit understanding cannot affect the inherent
nature of their relationship. Under our law a marriage is regarded as polygamous if it is
celebrated under tenets which allow the husband to take another wife during its
subsistence, whether he does so or not. A potentially polygamous union is equated
with a de facto polygamous union (see Seedat's Executors v The Master (Natal) 1917 AD
302 at 308).621
The influence of Christian-Nationalism and the resulting refusal to recognise
plural forms of marriage was patent. Therefore, although no reported case law
existed regarding the position of other potentially polygynous "purely religious
'marriages'" (such as Hindu marriages) it can be accepted with relative certainty
that the legal position in Ismail would have been held to apply to such cases.
3.4.7.4 The winds of change prior to 1994
The South African law of marriage's gradual break with centuries of Roman-
Dutch law began to become evident in the second half of the twentieth century.
An example of this occurs within the context of the South African law of divorce.
Until shortly before the Second World War, the law of divorce was still based
squarely on Roman-Dutch law and its reliance on the Reformational grounds of
divorce. In 1935 two new grounds of divorce (namely incurable insanity for a
period of seven years and the designation of a spouse as a habitual criminal
coupled with a five-year period of imprisonment) were added to the common law
grounds of divorce.622 Despite this development, the South African law of
divorce would retain the fault principle as its central criterion for another forty
years until the coming into operation of the Divorce Act 623 on 1 July 1979. In
terms of this Act, the fault principle was substituted by irretrievable breakdown of
621
At 1019 (H) - 1020 (B), emphasis added.
622
Namely adultery and malicious desertion-see 3.4.6 above.
623
Act 70 of 1979.
108
marriage as the major ground of divorce.624 The fundamental shift embodied in
this new approach is encapsulated by Hahl0625who states that:
In dissolving a marriage by divorce, the court does not kill a live marriage: it certifies
that the marriage is dead.
This development not only served to align the law of divorce with international
trends, but also constituted somewhat of a departure from the dictum of Boshoff
j in Holland v Holland where it was stated that "[m]arriage is thus of interest to
the State and its creation and destruction are regarded as matters which are to
be determined by the State alone and not in any degree by the mere will of the
spouses themselves,,626 in that a shift towards the contractarian model of
marriage (as originally precipitated by the Anglican commonwealth model in the
United Kingdom and later in the United States of America) became more evident
in South Africa.62?
In another dramatic and much-needed development, South African matrimonial
property law was also modernised by the Matrimonial Property Act 88 of 1984.
Although the marriage in community of property was retained as the default
matrimonial property system,628 the Act introduced the accrual system as a
"deferred community of gains,,629in order to assist spouses (more often than not
women)630who were married with complete separation of property and who were
often left out in the cold despite having "contribute[d] financially and otherwise to
the growth of the other spouse's estate.,,631In addition, the Act also provided that
624 See Hahlo 1985: 330.
625 1985: 331.
626 1973 (1) SA 897 (T) at 899 (H), emphasis added.
627 See Witte 1997: 181, 182 and 211- 213 respectively.
628 This system originally only applied as the default system for whites, coloureds and Asians, and
the default system for civil marriages between black persons was a marriage with complete
separation of property. This remained the legal position until 2 December 1988-see note 619
above as well as the main text below.
629 Hahlo 1985: 304.
630 Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SCA) at par [21].
631 SALC1982: 17.1.
109
the system of accrual sharing would apply automatically to all marriages out of
community of property and out of community of profit and loss unless expressly
excluded by an antenuptial contract.F"
The Matrimonial Property Act 633also vanquished the common law concept of
marital power by abolishing it for all marriages (with the exception, initially, of
marriages between black persons)634 concluded after 1 November 1984. It is,
however, worth mentioning that this Act was not the first to bring about
substantial reform as far as marital power was concerned. Indeed, three
decades prior to the 1984 Act marital power had already to some extent been
curtailed by the Matrimonial Affairs Act 7 of 1953 leading to greater
independence for the female spouse regarding both financial and parental
aspects of marriage.635 The death-knell for marital power was finally sounded on
1 December 1993 when the General Law Fourth Amendment Act 636abolished
the same in all marriages in South Africa regardless of when they had been
concluded.
On 19 June 1985 the prohibition on so-called "mixed marriages" was removed
when the Prohibition of Mixed Marriages Act 55 of 1949 was repealed.63? Sexual
intercourse between a "white person" and a "coloured person" was also
decriminalised on the same day.638 "Mixed" marriages concluded after this date
632 Section 2.
633 88 of 1984.
634
Such marriages were however placed on an equal footing with all other marriages on 2
December 1988 with the coming into operation of the Marriage and Matrimonial Property Law
Amendment Act 3 of 1988.
635 See Hahlo 1985: 18.
636
132 of 1993.
637
This Act was repealed by the Immorality and Prohibition of Mixed Marriages Amendment Act 72
of 1985-see Sinclair and Heaton 1996: 342 et seq for a comprehensive discussion.
638
This occurred by virtue of the amendment of the Immorality Act 23 of 1957. This Act has since
been renamed, and is now referred to as the "Sexual Offences Act 23 of 1957."
110
were permitted, but such marriages concluded prior to this date were not
automatically validated. 639
The unequal application of the principles of matrimonial property law (in terms of
which the "default" system that applied to all civil marriages other than those
entered into between black persons was the marriage with community of
property) was finally removed when the Marriage and Matrimonial Property Law
Amendment Act 640came into operation on 2 December 1988. Since that date,
the proprietary consequences of all South African marriages are determined
without reference to the race of the parties invoived.?"
In 1992, the Domicile Act 642introduced the concept of "domicile of choice" and
abolished the common law rule that a wife followed the domicile of her husband
in terms of her "domicile of dependence.,,643
The greater recognition that the Matrimonial Affairs Act of 1953 provided to
female spouses regarding guardianship finally came full circle when the
Guardianship Act 192 of 1993 came into operation and provided that a woman
was the guardian of her minor children and that such guardianship was equal to
that exercised by the father of the children at common law.644 1993 also saw the
abolition of "the one conjugal duty in respect of which a husband could exact
compliance and yet escape the ordinary sanction of the criminal law" namely the
right to demand sexual intimacy from his wife without the prospect of being
prosecuted for rape.645
639
The parties to such marriages could however apply to the Director-General of Home Affairs for a
declaration of validity that was issued in terms of section 7 of Act 72 of 1985. If such a
declaration was granted, the marriage was deemed to be valid from the date on which it was
entered into (section 7(4)).
640 3 of 1988.
641
Section 1 of this Act repealed section 22(6) of the Black Administration Act 38 of 1927.
642 3 of 1992.
643 Heaton 2008(a): 45.
644 Section 1(1).
645
Section 5 of the Prevention of Family Violence Act 133 of 1993.
111
3.4.7.5 Preliminary conclusions
The discussion of the development of the law of marriage in South Africa leads to
two preliminary conclusions. The first is that a broad parallel can be drawn
between the developments in South Africa and what Merin646 describes as a
universal evolution of marriage in the West "from the private to the public sphere,
from 'custom to law' and 'from sacrament to contract. '" South African law may
however not have been exposed to the full spectrum of this process to the same
extent as Western Europe, as the law in South Africa only began to develop at a
time when the influence of the Reformation was at its most prominent, with the
result that the notion of marriage as a sacrament would not have gained the
foothold that it did in those jurisdictions. Nevertheless, important developments
that were introduced during the epoch of the supremacy of the Catholic
sacramental model (particularly those embodied in the Decretum Tametsi of
1563 and the Political Ordinance of 1580) formed (and continue to form) the
backbone of the law of civil marriage in South Africa under the Marriage Act of
1961.647
Furthermore, it is clear that, beginning with the Order in Council of 1838, the
institution of marriage has, from a legal point of view, been viewed as a secular
institution, and that this position was continued with the promulgation of the
Marriage Act 25 of 1961.648 As Farlam JA observed in Minister of Home Affairs v
Fourie:
It is true that it is seen by many to have a religious dimension also, but that is something
with which the law is not concerned. Even though clerics are appointed marriage
officers, when they solemnise marriages they do so in a twofold capacity: first, as clerics,
giving the benedictio ecclesiae to the couple and affording them the opportunity to take
646
2002: 10.
647
Minister of Home Affairs v Fourie 2005 (3) SA 429 (SCA) at par [78].
648
Minister of Home Affairs v Fourie 2005 (3) SA 429 (SCA) at par [80].
112
their vows at a religious service; and, secondly, as State marriage officers, bringing into
existence a secular legal bond recognised by the State.
Consequently, the civil marriage as it existed even prior to 1994 allowed the
spouses themselves to attach any form of religious significance to the marriage if
they so chose, regardless of whether it was Protestant, Catholic, Islamic or
otherwise. The only condition imposed was that such a marriage had to be
solemnised according to the requirements of the Act. This relative freedom
notwithstanding, no deviation was permitted beyond the boundaries of the civil
marriage as it had developed in the Western legal tradition, with the result that no
provision was made for (polygynous) customary or "purely religious 'marriages.'"
While it is therefore clear that pre-1994 South Africa did not adhere to any
particular religious model of marriage (such as the Calvinist model) per se, the
authoritarian influence of Afrikaner Christian-Nationalism and the draconian
enforcement of this ideology on the majority of South Africans is clearly evident.
In this regard the evolution from "sacrament to contract" in pre-1994 South Africa
was drastically out of kilter with developments in the West, and it is clear that the
general model of marriage that dominated the scene at the turn of the twentieth
century in America and England (namely that marriage was "a permanent
monogamous union between a fit man and a fit woman of the age of consent,
designed for mutual love and support, and for mutual procreation and protection"
that was required to be formalised "before civil and/or ecclesiastical authorities"
and was governed by a male patriarchj'"? continued to prevail in South Africa
until the first moves towards greater "contractariansm" and equality between man
and wife in the late 1970's.
649 Quotes taken from Witte 1997: 194, 195.
113
4. ASCERTAINING THE ESSENCE OF THE PRE-1994 CIVIL MARRIAGE
IN SOUTH AFRICA-THE CONSORTIUM OMNIS VITAE
The preliminary conclusions drawn from the preceding discussion highlight the
fact that, beginning with the Cape Colony in 1838, the South African civil
marriage has come to be recognised as a secular institution. Consequently, the
evolution of civil marriage in South Africa has followed the same trends as those
generally experienced by the Western legal tradition, and it is trite that the South
African civil marriage-even prior to 1994 (and in fact at the earliest since
1838)-did not seek to force spouses to conclude a marriage that conformed to
any particular religious dogma. This notwithstanding the general framework
within which civil marriage functioned was shaped by and confined to the
boundaries demarcated by Afrikaner Christian-Nationalism as the "civil
religion,,65obased on male patriarchy and intolerant of any form of pluralism. As
such, until the 1990's the South African civil marriage (apart from a few
exceptions that were generally only prospective in nature )651resembled the
general model of marriage that prevailed in both America and in England at the
turn of the twentieth century, in the sense of being a model as yet untouched by
many of the reforms occasioned by the Enlightenment which were aimed at
"[purging] the traditional household and community of its excessive paternalism,
patriarchy and prudishness, and thus to render the ideal structure and purpose of
marriage a greater reality for all.,,652 The first and second "waves" of reform
occasioned by the Enlightenment contractarian model would only begin to reach
South African shores during the final decade of Apartheid rule.
Accepting, then, that even prior to the era of constitutional democracy "the law
[was] concerned only with [an admittedly narrow concept of] marriage as a
650
See the reference to Moodie in the main text above (at 3.4.7.3).
651
For example, the abolition of marital power initially only applied to marriages concluded after
1984 and was only abolished with retrospective effect in 1993-see 3.4.7.4 above.
652
Per Witte 1997: 208.
114
secular institution,,653the question arises as to with what, exactly, the law was
"concerned." That a portion of the rationale behind the requirements of the
formation and dissolution of marriage was (and is) to protect the interests of the
State and outsiders is patent.654 Nevertheless, it is submitted that regardless of
the theological model encapsulating it or of the legal nature ascribed to it, the
essence of a marriage has always been found in the invariable consequence of
marriage known as the consortium omnis vitae, which sets the marriage apart as
a relationship sui generis,655 for, as Hahl0656states "although there are some
consequences of marriage which the parties may vary or exclude by antenuptial
or postnuptial contract ... there are others which, being the essence of
matrimony, cannot be varied or excluded. Such are the duty to live together, the
duty to observe conjugal fidelity, and the duty to support each other." The
distinctive hallmark of marriage, therefore, is that it instantaneously creates "a
physical, moral and spiritual community of life"657or consortium omnis vitae. Due
to its abstract nature, this concept is not easy to define.658 Descriptions which
have, however, been met with the approval of the highest Court in South Africa
include that it is "an abstraction comprising the totality of a number of rights,
duties and advantages accruing to spouses of a marriage" which include
"[c]ompanionship, love, affection, comfort, mutual services, sexual intercourse"
653 Per Farlam JA in Minister of Home Affairs v Fourie 2005 (3) SA429 (SCA) at par [78].
654
"Marriage is not like an ordinary contract which can be terminated by the mere consent of the
parties and the reason why this is so is because it is in the interest of the State that the marriage
tie, which involves a matter of the status of the parties and the interests of the offspring, should
not be lightly dissolved"-per Centlivres JA in Carter v Carter 1953 (1) SA 202 (A) at 205 (B) - (C);
Holland v Holland 1973 (1) SA 897 (T) at 899 (H).
655 Rattigan v Chief Immigration Officer, Zimbabwe 1995 (2) SA 182 (ZS) at 188 (B).
656 1985: 22.
657 Per Q'Regan J in Dawood and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs
and Others 2000 (3) SA 936 (CC); 2000 (8) BCLR837 (CC) at par [33].
658
Church 1979: 379; Cronjé and Heaton 2004: 49; Visser and Potgieter 1998: 74; Smith and Grobler
2005: 754.
115
all of which "belong to the married state.,,659In Peter v Minister of Law and Order
it was stated that:66o
The concept of matrimonial consortium has been termed an abstraction comprising the
totality of a number of rights, duties and advantages accruing to spouses of a marriage
... These embrace intangibles, such as loyalty and sympathetic care and affection,
concern etc; as well as the more material needs of life, such as physical care, financial
support, the rendering of services in the running of the common household or in a
support-generating. busm. ess, etc.661
In T v T 662consortium was eloquently described as comprising three core
elements, namely "(i) eros (passion), (ii) philia (companionship) and (iii) agape
(self-giving, brotherly love).,,663
Despite the fact that the move towards the contractarian model of marriage and
the introduction-inter alia-of no-fault divorce may have led to the duties
imposed by consortium becoming merely hortative in nature,664 this does not
detract from the fact that consortium sets marriage apart from other relationships
based on consensus. Although the infringement of consortium is not actionable
in delict against the other spouse, the consortium can be protected against
outsiders by the institution of actions for adultery,665 harbouring or enticement.666
The existence of the consortium is also the reason why communications between
659
Grobbelaar v Havenga 1964 (3) SA 522 (N) at 525 (D) - (E) quoting from the English case of Best v
Samuel Fox Co. Ltd. (1952) 2 All E.R. 394. The Grobbelaar case was referred to with approval in
Oawood and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC)at par [33].
660 1990 (4) SA 6 (E).
661
At 9 (G) - (Hj, referred to with approval in National Coalition for Gay and Lesbian Equality v
Minister of Home Affairs 2000 (2) SA 1 (CC) at par [46] (see note 61 of the judgment) and
Oawood and Another v Minister of Home Affairs and Others 2000 (3) SA936 (CC)at par [33].
662 1968 (3) SA 554 (R).
663
At 555 (D) - (E), emphasis added.
664
SeeSinclair and Heaton 1996: 423.
665
See for example Biccard v Biccard and Fryer (1891-1892) 9 SC473; Viviers v Kilian 1927 AD 449;
Neethling et a/2006: 326.
666
See in general Cronjé and Heaton 2004: 50, 51; Neethling et a/2006: 327.
116
spouses are generally privileged in both criminal and civil proceedinqs.?" and
why the communication between spouses of defamatory words relating to an
outsider does not comply with the publication requirement for the purposes of an
action for defamation.668
The nub of the position pointed out above is that, regardless of the particular
theological or legal model of marriage that applies in any given legal system
(whether it be sacramental or contractarian in nature or anything in-between or
whether it is controlled by State or Church), the consortium omnis vitae between
spouses is the objective hallmark of marriage that transcends the prescripts of
any obligatory or uniformly-applied religious dogma or legal form. Bearing this in
mind, it is apposite to examine the core elements of consortium in more detail.
Referring with approval to De Vas Hugo J's conclusion in Joshua v Joshua669
where the learned judge held that
[m]arriage is rooted in the biotic aspect of life and is based on the difference of sex. It
has an unmistakable sexual basis. As an institution it has its foundation in the biotic
aspect of reality and finds its fulfilment in the moral sphere where love between the
spouses and between the parents and the children is the governing rule
Robinson'?" concludes that marriage is gender-based and morally designated.
In dealing with the question as to whether the concept of consortium can be used
as a yardstick for determining whether a marital relationship is no longer "normal"
667 Robinson et al 2009: 110. See Section 198 of the Criminal Procedure Act 51 of 1977 and section
10(1) of the Civil Proceedings Evidence Act 25 of 1965.
668 Sinclair and Heaton 1996: 438; Neethling et al 2006: 308; Whittington vBowies 1934 EDL 142 at
145.
669 1961 (1) SA455 (GW) at 459 (B).
670
1991: 509: "Ofskoon daar veel meer te sê is oor die struktuur van die huwelik soos pas
uiteengesit, word met die gevolgtrekking volstaan dat die huwelik gelsagtelik gefundeer en eties
bestem is."
117
for the purposes of section 4(1) of the Divorce Act 70 of 1979,671he reaches an
important conclusion: Of the three core elements described in T v T, he
concludes that only the first, namelyeros, is capable of precise juridical definition
(such as in the case of adultery), due to its connection to the biotic aspect of
marriage. However, as for philia and agape, these elements are not capable of
precise juridical definition due to their moral designation. For this reason, while it
may be sufficient to rely on the subjective feelings of the plaintiff as far as eros is
concerned, the further criterion posed in the Divorce Act, namely
reasonableness, should be used to ascertain whether, objectively speaking, the
philia and agape elements of consortium are no longer present.672 Robinson673
concludes that the concept of consortium is too vague to be of assistance in
formulating a juridical definition of a "normal marriage relationship."
It is submitted that this line of reasoning is of significance for this study, as the
appreciation of the impossibility of formulating juridical definitions for the core
aspects of consortium omnis vitae can be used as a platform for broadening this
concept beyond the confines of civil marriage in post-1994 South Africa. This
contention will be dealt with later in this study. Nevertheless, it can be accepted
that prior to the democratic era the socio-legal mechanisms were not yet in place
for this to be achieved.
To return to the position prior to 1994, two conclusions can be reached, namely
(i) that regardless of any particular (constricted) model of marriage that obtained
in South Africa prior to 1994, the distinctive hallmark thereof was the consortium
omnis vitae that existed between the spouses; and (ii) that the recognition of this
consortium omnis vitae was confined to heterosexual marital unions that
complied with the concept of civil marriage as it had developed in the Western
671 According to section 4(1) "[a] court may grant a decree of divorce on the ground of the
irretrievable break-down of a marriage if it is satisfied that the marriage relationship between
the parties to the marriage has reached such a state of disintegration that there is no reasonable
prospect of the restoration of a normal marriage relationship between them."
672 Robinson 1991: 510
673 1991: 511.
118
legal tradition until the turn of the twentieth century that functioned within a
framework based on male patriarchy and was bereft of any form of pluralism.
5. CONCLUSION
The conclusions reached in this Chapter can be divided into two categories,
namely those that are of a purely historical nature and those that are of a legal
nature. Regarding the former category, it has been seen that although the
question as to whether or not the Octrooi of 1602 indeed provided the VOC with
the competence to legislate in the East is somewhat of a moot point today, the
answer to this question is not as clear-cut as many historians believe, and that
there is some room for arguing that the granting of such a power can be inferred
from a broader interpretation of this document. Nevertheless, the fact remains
that the VOC's officers in Batavia did legislate, that this legislation was applied at
the Cape of Good Hope, and that the Cape government also legislated of its own
accord. The Political Ordinance of 1580 was applied in the East Indies and, as a
consequence, at the Cape as from the earliest days of Dutch rule.674 As such, it
constitutes one of the building blocks of the South African (family) law landscape
today. Indeed, as mentioned earlier, it appears that it is not too far-fetched to
submit that the Political Ordinance of 1580 is the very reason for the adoption of
the Roman-Dutch law in the Cape in the first place, later leading to the creation
of that to which we today refer to as "the common law of South Africa." To put it
differently, had it not been for the incorporation of the Political Ordinance of 1580
into the Statutes of Batavia, South Africa's legal heritage might have adopted a
markedly different guise. As a key component of the Political Ordinance of 1580,
the law of marriage has played a vital role in the creation and development of the
South African legal system as we know it today.
674 De Wet 1985: 34; Spies v Lombard 1950 (3) SA469 (A) at 482 (D) - (E).
119
As far as the legal conclusions are concerned, it is clear that although control
over the institution of South African marriage originally vacillated between Church
and State, the two systems have largely been able to co-exist with one another:
In the early days of Dutch rule, the system allowed for a type of symbiotic
relationship between the two poles with both the secular component (in the form
of verification of compliance with secular law) and the religious component (the
blessing) being required in order to constitute a valid marriage. With the return of
Dutch rule to the Cape in the early 1800's, the secular marriage was introduced
to the Cape, only for the Church to regain control in 1806. As from 1838 the fact
that civil marriage was indeed a secular institution pervaded throughout the Cape
Colony, Natal and the two Boer republics, and by the time that the various
marriage laws were consolidated in 1961, there was no doubt that the new
uniform South African Marriage Act was "concerned solely with marriage as a
secular institution.,,675This notwithstanding, spouses to a civil marriage were free
to attach religious significance to their marriage and to have it solemnised by duly
appointed clerical marriage officers.
The evolution of civil marriage up until 1994 demonstrated, followed and
embodied the same tendencies as those found in the Western legal tradition's
shift towards a contractarian model of marriage. Nevertheless, while the rest of
the Western world continued to shift closer towards a contractarian model, the
shift in South Africa did not-until the final decade of Apartheid rule-begin to
progress beyond the general model encountered in the United States of America
and in the United Kingdom at the turn of the twentieth century. The requirements
for the formation of marriage under the 1961 Marriage Act remained firmly rooted
in the Roman-Dutch law Political Ordinance of 1580 and the Decretum Tametsi
of 1563 that had evolved from the Catholic model. In this regard, Witte and
Reid's676 remark that "[m]odern marriage and family law has been decisively
shaped by the medieval conception of marriage as a sacrament, by the creation
675
Per Farlam JA in Minister of Home Affairs v Fourie 2005 (3) SA 429 (SeA) at par [78].
676
1999: 648.
120
of an intricate body of marriage law, and by the enforcement of that law in church
courts" is particularly appropriate in the South African context.
Despite the evolution of marriage as an institution, this Chapter has shown that
the essence and objective hallmark of marriage has always been the consortium
omnis vitae that existed between the spouses. In South Africa this consortium
was, however, only recognised in the Westernised model of civil marriage, with
the result that customary marriages and "purely religious 'marriages'" were not
recognised as such. This state of affairs in effect implied that parties to such
"marriages" were forced either to conclude a monogamous civil marriage that
complied with the Marriage Act, or to resign themselves to the fact that their
(potentially polygynous) customary or "purely religious 'marriage'" was null and
void according to South African family law.
Consequently, even though the Marriage Act of 1961 did not impose a particular
theological model on the South African civil marriage, the fact that it did not
discriminate on the grounds of religion was not sufficient: By failing to recognise
the consortium omnis vitae that existed in other marital relationships (such as
customary or purely religious marriages) and confining the institution of marriage
to the civil marriage in the legacy of the Western legal tradition, it was patent that
the law of marriage did not cater for the marital needs of a multifarious South
African society. It goes without saying that such an obdurate and marginalising
approach to marriage entailed that there was little chance of any recognition of
consortium omnis vitae between the partners to non-formalised life partnerships.
The brief analysis conducted towards the end of the Chapter shows that although
it is certainly true that many marital rules that discriminated against women may
have been changed in the early 1990's "in a frenetic bid by the National Party to
capture the votes of women in the April 1994 election,,677 it must also be
remembered that certain salutary developments (such as the introduction of no-
677 Sinclair and Heaton 1996: 69.
121
fault divorce, the accrual system and the legislative competence to redistribute
assets) occurred even during the Apartheid era. When all is said and done it is
undoubtedly true that, as Sinclair and Heaton678 state "[t]he National Party
government deserved commendation for its sudden flash of inspiration towards
ensuring equality."
Finally, the investigation into the models of marriage in the Western tradition has
shown that although the move towards contractarianism originally (that is to say
in the so-called "first wave"679 of reform) accomplished much in terms of
furthering the rights to equality and freedom of women and the better protection
of children, latter-day developments in this regard may-quite paradoxically-
have the effect of undermining these gains. It has however been suggested that
the institution of marriage per se should not solely be tasked with preventing this
phenomenon, but that legislation based on a robust domestic partnership rubric
that functions both alongside (and simultaneously as a "catch-all" to) marriage in
a broader interpersonal relationships framework is required in order effectively to
shoulder not only this burden, but also, in taking the needs of a pluralistic society
into account, to recognise the consortium omnis vitae that exists between the
partners themselves and to provide adequate protection for them and for their
children both during the existence of the relationship as well as after the
termination thereof.
In the Chapter that follows, the post-1994 developments pertaining to marriage
and analogous relationships will be considered with a view towards ascertaining
whether or not such a domestic partnership rubric (and its attendant legislation)
is required in South Africa.
678 1996: 435.
679 Witte 1997: 207.
123
CHAPTER 3:
ASSESSING THE NEED FOR AND FORMAT OF A DOMESTIC
PARTNERSHIP RUBRIC AND ATTENDANT LEGISLATION IN
SOUTH AFRICA:
THE DEMOCRATIC CONSTITUTIONAL DISPENSATION AND ITS
BROADENING EFFECT ON MARRIAGE AND THE CONCEPT OF
CONSORTIUM OMNIS VITAE
1. INTRODUCTION
A midnight on the 27th of April 1994 the (interim) Constitution of theRepublic of South Africa Act 200 of 1993 came into operation and Southfrica entered into a democratic constitutional era, the cornerstone of
which was constituted by chapter 3 of the Act which accorded a number of
fundamental rights including a right to equality.' human dignity,2 privacy' and
freedom of religion, belief and opinion" to "every person." Conspicuously absent
from both the 1993 Constitution and its 1996 successor, was a right to marry. In
certifying the 1996 Constitution, the Constitutional Court remarked in this regard
that:
The absence of marriage and family rights in many African and Asian countries reflects
the multi-cultural and multi-faith character of such societies. Families are constituted,
Section 8.
Section 10.
Section 13.
Section 14. The recognition of this fundamental right in 1994 implied that what Bekink (2008:
481) describes as the "intrinsic uneasy triangle between constitutionalism, secularism and the
right to freedom of religion" that had become a feature of democracies the world over also
became a feature of South African law. This "uneasy triangle" will be referred to in the
discussion of the Civil Union Act 17 of 2006 in Chapter 8.
124
function and are dissolved in such a variety of ways, and the possible outcomes of
constitutionalising family rights are so uncertain, that constitution-makers appear
frequently to prefer not to regard the right to marry or to pursue family life as a
fundamental right that is appropriate for definition in constitutionalised terms. They
thereby avoid disagreements over whether the family to be protected is a nuclear family
or an extended family, or over which ceremonies, rites or practices would constitute a
marriage deserving of constitutional protection ... On the one hand, the provisions of
the [new text of the 1996 Constitution] would clearly prohibit any arbitrary State
interference with the right to marry or to establish and raise a family. [Section] 7(1)
enshrines the values of human dignity, equality and freedom, while [section] 10 states
that everyone has the right to have their dignity respected and protected. However
these words may come to be interpreted in future, it is evident that laws or executive
action resulting in enforced marriages, or oppressive prohibitions on marriage or the
choice of spouses, would not survive constitutional challenge ... On the other hand,
various sections in the (new text] either directly or indirectly support the institution of
marriage and family life. Thus, [section] 3S(2)(f)(i) and (ii) guarantee the right of a
detained person to communicate with, and be visited by, his or her spouse or partner
and next of kin. There are two further respects in which the [new text] deals directly
with the issue, and both relate to family questions of special concern. The first deals
with the rights of the child, wherein the right to family and parental care or appropriate
alternative care is expressly guaranteed ([section] 28(1)(b)). The second responds to the
multi-cultural and multi-faith nature of our country. [Section] lS(3)(a) authorises
legislation recognising 'marriages concluded under any tradition or a system of religious,
personal or family law', provided that such recognition is consistent with the general
provisions of the {new text]. 5
The thrust of the decision not to include a specific right to marry or to family life
can therefore be summarised by stating that the Court found such rights to be
unnecessary in view of the wide array of constitutional guarantees already
included in the 1996 Constitution. An example of the way in which this could be
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the
RSA, 19961996 (4) SA744 (CC)at par [99]- [102].
125
achieved appeared a few years later in Dawood v Minister of Home Affairs;
Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs6 (hereafter
Dawood v Minister of Home Affairs) where the Constitutional Court held that "it
cannot be said that there is a more specific right that protects individuals who
wish to enter into and sustain permanent intimate relationships than the right to
dignity in s 10.,,7 As a consequence, Cronjé and Heaton" correctly conclude that
the right to dignity in effect protects the right to family life, and, moreover, that the
latter right includes the right to a consortium omnis vitee?
2. EXPANDING MARRIAGE TO INCLUDE CUSTOMARY MARRIAGES
One of the first major developments that was necessary for the institution of
marriage better to accommodate the needs of a multifarious society was the
necessity for it to recognise (potentially polygynous) marriages concluded in
accordance with customary law (i.e. the customs and usages traditionally
observed by and forming part of the culture of the indigenous African peoples of
South Africa),"? and to this end the Recognition of Customary Marriages Act 120
of 1998 came into operation on 15 November 2000. An obvious effect of this
development was that customary marriages that complied with the Act would
henceforth be recognised alongside monogamous civil marriages concluded in
accordance with the Marriage Act 25 of 1961. However, in keeping with the
notion of marriage as it had developed in the Western legal tradition, the
2000 (3) SA 936 (CC).
Par [36].
2004: 51.
The authors reach this conclusion as a consequence of the Court in Dawood's finding (in par [36])
"Marriage and the family are social institutions of vital importance. Entering into and sustaining
a marriage is a matter of intense private significance to the parties to that marriage for they
make a promise to one another to establish and maintain an intimate relationship for the rest of
their lives which they acknowledge obliges them to support one another, to live together and to
be faithful to one another."
10
Section 1 definition of "customary law" in the Recognition of Customary Marriages Act 120 of
1998.
126
institution of civil marriage remained an institution reserved for monogamous
heterosexual couples.
3. GAY AND LESBIAN LIFE PARTNERS PAVE THE WAY TOWARDS
SAME-SEX MARRIAGE
Unmarried life partners have never enjoyed comprehensive legal protection at
common taw." Male same-sex couples found themselves in an even worse
position in that sexual conduct between them was crirninatlsed." In 1994 South
Africa however became the first country worldwide to specifically include "sexual
orientation" as a listed ground on which unfair discrimination was prohibited.l"
and this provision was retained in the 1996 Constituuon," Thus, according to De
VOS,15 the first of four main objectives of the National Coalition for Gay and
Lesbian Equality-a coalition comprising 43 gay and lesbian organisations that
was established in 1994 with the overarching aim of striving for equality for gays
and lesbians through legal reform-was realised. This having been achieved,
the Coalition's second objective was accomplished on 9 October 1998 when in
National Coalition for Gay and Lesbian Equality v Minister of Justice 16 (the so-
called "sodomy case") the Constitutional Court struck down the common law
crime of sodomy (as well as a number of attendant laws that prohibited all-male
sexual relations), and held that private consensual intercourse per anum
between adult males was legally permissible. In a separate but concurring
judgment Sachs J expressed the telling sentiment that
11
Protection at common law is discussed in detail in Chapter 6.
12 See 3.4.4 in Chapter 2.
13
De Vos 2007(a): 435; De Vos and Barnard 2007: 797, 798.
14
According to Robson (2007: 418) "[t)his accomplishment should never be minimized and for
queer legal scholars in other nations, including the United States, it is a cause for envy."
15 2007(a): 439 - 443.
16 1999 (1) SA 6 (CC).
127
rijn my view, the decision of this Court should be seen as part of a growing acceptance
of difference in an increasingly open and pluralistic South Africa. It leads me to hope
that the emancipatory effects of the elimination of institutionalised prejudice against
gays and lesbians will encourage amongst the heterosexual population a greater
sensitivity to the variability of the human kind.17
The first chinks in the armour of the heretofore exclusive recognition of marital
unions between persons of the opposite sex were beginning to appear and, as a
victory for gay and lesbian equality and dignity, 18 this judgment paved the way for
the Coalition to embark on its third objective, namely to challenge discrimination
against homosexual couples by way of constitutional litigation.19 As far as this
objective was concerned, the first watershed case involving same-sex life
partnerships appeared in the form of National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs.2o This case will be discussed in detail in
Chapter 5, but for now it will suffice to say that in a unanimous judgment the
Constitutional Court expressly stated that although heterosexual civil marriage
was the only form of conjugal union that was legally recognised at the time (the
judgment was delivered prior to the enactment of the Recognition of Customary
Marriages Act),21 "there is another form of life partnership which is different from
marriage as recognised by law ... [that is] represented by a conjugal relationship
between two people of the same sex.,,22 Thus, a "new legal entity" was born.23
Moreover, concerning the consortium omnis vitae between partners to such a life
partnership the Court made the ground-breaking ruling that: 24
17 Par [138].
18
Bilchitz and Judge 2007: 469: "The ruling by the Constitutional Court signified a critical shift in the
'status, moral citizenship and sense of self-worth' of lesbian and gay people."
19
De Vos 2007(a): 439. Also see Bonthuys 2007: 528.
20 2000 (2) SA 1 (CC).
21
Act 120 of 1998. The judgment in the National Coalition for Gay and Lesbian Equality v Minister
of Home Affairs case was delivered on 2 December 1999 while Act 120 of 1998 only came into
operation on 15 November of the following year.
22
Par [36].
23
De Vos 2007(a): 450.
24
At par [53].
128
(iv) gays and lesbians in same-sex life partnerships are as capable as heterosexual
spouses of expressing and sharing love in its manifold forms, including affection,
friendship, eros and charity;
(v) they are likewise as capable of forming intimate, permanent, committed,
monogamous, loyal and enduring relationships; of furnishing emotional and
spiritual support; and of providing physical care, financial support and
assistance in running the common household;
(vi) they are individually able to adopt children and in the case of lesbians to bear
them;
and, most significantly:
(vii) in short, they have the same ability to establish a consortium omnis vitae ...
The National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
case therefore confirmed that the "essence and objective hallmark" of a marriage
as identified in Chapter 2 had the potential of being fully extended to same-sex
life partners (it will however be seen in Chapter 5 that full recognition of such
consortium has not yet taken place).
The Home Affairs case was to set the tone for numerous ad hoc judicial and
legislative25 extensions of the law of (civil) marriage to same-sex life partners, all
of which are considered in detail in Chapters 5 and 6. These extensions included
the right to inherit intestate." to adopt children jointll7 and to claim for loss of
support as a result of the death of a breadwlnner." Interestingly enough, the
extensions permitted by the Courts had the effect that, in less than a decade,
25
It is interesting to note that the first legislative provision for unmarried heterosexual cohabitants
occurred already in 1936-see Chapter 6. It is nevertheless not too far-fetched to assume that
the bulk of subsequent recognition was stimulated by cases such as National Coalition for Gay
and Lesbian Equality v Minister of Home Affairs.
26 Gory v Kolver NO 2007 (3) SA 97 (CC); 2007 (3) BCLR294 (CC).
27
Du Toit v Minister of Welfare & Population Development (Lesbian & Gay Equality Project as
Amicus Curiae) 2003 (2) SA 198 (CC); (2002 (10) BCLR1006).
28 Du Plessis v Rood Accident Fund 2004 (1) SA 359 (SCA).
129
South African family law evolved from a position where male same-sex activity
was criminalised to a position where same-sex life partners enjoyed better legal
protection than their unmarried heterosexual counterparts.i" Whether or not this
created a healthy system of family law is however debatable, as these piecemeal
extensions have created a complex patchwork of laws that have largely excluded
heterosexual life partners from their ambit." For example, heterosexual life
partners currently have no right to adopt a child jointly, to inherit intestate from
the first-dying partner or to institute a claim for loss of support in the event of the
death of a breadwinner, while same-sex life partners are ostensibly" entitled to
all of the same." Consequently, while the ad hoc extensions were beneficial for
same-sex life partners in particular, it could be argued that the anomalies so
created had a less wholesome effect on the family law landscape in general.
This notwithstanding, the institution of civil marriage remained an institution that
was reserved for monogamous heterosexual couples. However, the specific
inclusion of the ground of sexual orientation as a listed ground in the equality
clause and the equality jurisprudence that had evolved in the wake of the two
National Coalition cases meant, as Smith and Robinsorr" point out, that "it was
only a matter of time before same-sex couples would approach the Courts for an
answer to the million dollar question as to whether or not the law could continue
to deny them the right to marry one another." This being so
[i]t is important to remember that the eventual adoption of such legislation was not
always as inevitable as it now seems. Acombination of luck, wise strategic leadership
and fortitude eventually made this achievement possible ... the early jurisprudence
developed by the Constitutional Court set the stage for later victories because it brought
29 Smith and Robinson 2008(b): 439; De Vos 2007(a): 462; Bilchitz and Judge 2007: 496; De Vos and
Barnard 2007: 823, 824.
30 See for example Smith and Robinson 2008(a) and 2008(b).
31 See 5 below where the effect of the validation of same-sex marriage on the "choice argument" is
discussed.
32 See Smith and Robinson 2008(a): 368 et seq. These and other inconsistencies are continually
referred to throughout this study.
33 2008(b): 423, 424.
130
on board judges who might have had some misgivings about the extension of marriage
rights to same-sex couples.34
The validation of same-sex marriages did eventually occur, but only, as a recent
contribution by De VOS35 describes, after the carefully planned '''conservative'
litigation strategy" (involving the ad hoc extensions described above) had begun
to pay dividends.
The specific process which was eventually to culminate in South Africa becoming
the first country on the African continent to recognise same-sex rnarriaqes " was
set in motion when a lesbian couple approached the Transvaal Provincial
Division of the High Court" for a mandamus directing the Minister and the
Director-General of Home Affairs (the respondents) to register their "sincere and
abiding relationship" of 8 year's duration as a marriage in terms of the 1961
Marriage Act.38 Not surprisingly, this application was unsuccessful on the basis
inter alia that the mandamus sought would "compel the respondents to do what is
unlawful" both according to common law and the Act.39 After being granted leave
to appeal against this order to the Supreme Court of Appeal, the couple opted
instead to approach the Constitutional Court directly; an application that was
refused on the grounds that the interests of justice required the Supreme Court of
Appeal first to hear the matter." On 30 November 2004 a majority decision of
the latter Court in the case of Fourie v Minister of Home Affairs41 found the
common law definition of marriage as a heterosexual union to be invalid and held
that it was to be "developed to embrace same-sex partners as follows: 'Marriage
34 De Vos 2007(a): 434.
35 See in general De Vos 2007(a).
36
http://home-affairs.pwv.gov.za/media releases.asp?id=370 (accessed on 18 October 2007).
37
Now the North Gauteng High Court in consequence of the Renaming of High Courts Act 30 of
2008.
38 25 of 1961.
39 At 5.
40
Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian & Gay
Equality Project v Minister of Hame Affairs 2006 (1) SA 524 (CC)at par [8] and [9].
41 2005 (3) SA 429 (SCA).
131
is the union of two persons to the exclusion of all others for life.",42 Furthermore,
the Court held that same-sex couples would be capable of marrying one another
in terms of the Marriage Act of 1961, provided that such a marriage complied
with the formalities of this Act.43 The latter portion of the finding posed a
particular problem for the applicant couple (the appellants) as well as for other
similarly-situated couples, in that section 30(1) of the Marriage Act prescribed a
default marriage formula to be used in the absence of an alternative formula that
had been approved by the Minister of Home Affairs. By specifically making use
of the words "husband" and "wife" this formula was clearly only capable of
applying to heterosexual couples." Furthermore, the fact that same-sex
marriages had never been legally sanctioned up to that point meant that the
Minister was not capable of approving any alternative marriage formula that
catered for such couples. However, the development of the common law so as
to provide for same-sex marriages would remove this impediment with the result
that the Minister could approve such an alternative marriage formula if she so
chose, provided, of course, that an application for such approval had been
brought to begin with.45 That this development was unlikely to occur became
evident when the State sought leave to appeal against the Supreme Court of
Appeal's judgment. The appellants were also not satisfied with the latter
judgment as the development of the common law alone was insufficient to permit
them to marry. As a result, they sought leave to cross-appeal against the
Supreme Court of Appeal's judgment. Both of the applications for leave were
granted, and the matter was taken to the Constitutional Court."
42
Par [49](2)(a).
43
Par [49](2)(b).
44
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [26] et seq. It is interesting to note
that the impediment posed by section 30(1) was overlooked by the appellants' counsel, with the
result that the Supreme Court of Appeal could only grant "some portion" of the relief sought-
see par [34] and [35].
45
Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian & Gay
Equality Project v Minister of Home Affairs 2006 (1) SA 524 (CC)at par [33].
46
Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian & Gay
Equality Project v Minister of Home Affairs 2006 (1) SA 524 (CC)at par [33].
132
The correctness of the Constitutional Court's judgment in the landmark case of
Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae);
Lesbian & Gay Equality Project v Minister of Home Affairs47 (hereafter "Minister
of Home Affairs v Fourie") falls beyond the scope of this study. For this reason
the rationale behind the decision to validate same-sex marriages will not be
questioned, and the fact that same-sex marriage is permitted in South Africa will
be accepted without further comment. Nevertheless, a distinction must be drawn
between the principle and its manifestation, (or to coin a phrase quoted by De
Vos, between "product" and "process")" and in the latter regard the legislative
means by which same-sex marriages have been recognised in South Africa will
be investigated in more detail in the concluding chapters of this study." Suffice
therefore to say that on 1 November 2005 the Constitutional Court held both the
common law definition of marriage as well as section 30(1) of the Marriage Act to
be unconstitutional to the extent that they did not provide for same-sex couples,
and gave the Legislature a period of one year within which to "correct the
defects." In the event of Parliament failing to comply with this order within the
prescribed one year period, the Court held that the impugned section of the
Marriage Act would automatically be read as if it provided for same-sex
marriages, with the result that same-sex couples would henceforth be permitted
to marry under this Act.50 On 30 November 2006 Parliament met the deadline by
enacting the Civil Union Act 17 of 2006, which provides for monogamous same-
or opposite sexed couples'" either to marry one another or to enter into a civil
partnership, provided that they are at least 18 years of age and not already
married to anyone else.52 Section 13 of the Act (which will be discussed in more
detail in Chapter 8) extends, inter alia, all the invariable consequences of a civil
47 2006 (1) SA 524 (CC).
48 2007(a): 446.
49 See Chapter 8.
50 At 585 (A) - 586 (J).
51
Bilchitz and Judge 2007: 483. See Smith and Robinson 2008(a) and (b) for a full discussion of this
issue. Bonthuys (2007: 530 (note 20)) presumes that the Act caters only for same-sex couples,
but states that "[t]his uncertainty must be clarified."
52 Section 1 definition of "civil union" read with section 8 requirements for solemnisation and
registration of a civil union.
133
marriage under the Marriage Act 25 of 1961 to persons who have either married
one another or entered into a civil partnership in terms of the Civil Union Act.53
An obvious consequence hereof will be that the consortium omnis vitae created
by a marriage under the 1961 Act will apply ipso facto and de iure to spouses or
civil partners under the 2006 Act. In so doing, the Act provides homosexual
couples-who, up until that point only had the "ability to establish,,54a consortium
omnis vitae-with the means to do so in a manner that is just as comprehensive
as for heterosexual spouses, and, moreover, also binding on third parties. As for
the position of homosexual couples who despite the enactment of Act 17 of 2006
have elected not to marry or to enter into a civil partnership, the extent (if any) to
which the pre-Civil Union Act ad hoc judicial extensions of the invariable
consequences of marriage will continue to be recognised is discussed in Chapter
5. The position as far as the extent to which the law recognises a consortium
omnis vitae between such unmarried life partners will also be examined in that
Chapter.
In sum, it is clear that the inclusion of sexual orientation as a listed ground in
section 9 of the Constitution catapulted South African family law into the forefront
of a transformative constitutionalist family law era; a fact that was epitomised by
the subsequent validation of same-sex marriages. Nevertheless, a further
pressing issue that was touched on in Chapter 2 remains, namely the position of
"spouses" in what may be termed "purely religious 'marriages.'"
53
According to section 13 of this Act (italics added):
"(1) The legal consequences of a marriage contemplated in the Marriage Act apply, with
such changes as may be required by the context, to a civil union.
(2) With the exception of the Marriage Act and the Customary Marriages Act, any reference
to-
(a) marriage in any other law, including the common law, includes, with such
changes as may be required by the context, a civil union; and
(b) husband, wife or spouse in any other law, including the common law, includes
a civil union partner."
54
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at
par [53], emphasis added.
134
4. "PURELY RELIGIOUS 'MARRIAGES'" THAT DO NOT COMPLY WITH
SOUTH AFRICAN MARRIAGE LEGISLATION
In this regard, a judgment of the Transvaal Supreme Court in 1905 can be taken
as a convenient starting point. In Mashia Ebrahim v Mahomed Essop 55Sir
James Rose Innes (later Chief Justice of the Union of South Africa)56 held that,
as the Cape Colony's Marriage Act 16 of 1860 permitted the Governor to appoint
marriage officers "who profess the Mohamedan religion" such a marriage,
provided that it were solemnised in accordance with the Act "would still be a valid
marriage, a monogamous marriage, a marriage which both in [the] Cape Colony
and here would prevent the parties from marrying again during its existence." An
obvious requirement for such a marriage would be that it must be monogamous
for
it is quite certain that if this marriage were a polygamous one it would not be
recognised in this country, no matter whether it were recognised as valid in other
countries or not. With us marriage is the union of one man with one woman, to the
exclusion, while it lasts, of all others; and no union would be regarded as a marriage in
this country, even though it were called and might be recognised as a marriage
elsewhere, if it was allowable for the parties to legally marry a second time during its
existence. 57
In 1917 the proscription of polygamy in the law of matrimony of the Union of
South Africa was reiterated by the highest Court in Seedat's Executors Appellant
55 1905 TS 59.
56 Sir James Rose Innes, who has been described as "the best judge South Africa has known" (Kahn
1991: 98) was born in 1855 and practiced at the Cape Bar from 1878 - 1890. He took silk in 1890
and was knighted in 1901. He was appointed Judge President of the Transvaal High Court in
1902, and when it became a Supreme Court was appointed Chief Justice as from 1902. He held
this position until being appointed to the Appellate Division in 1910 and later served as Chief
Justice of the Union of South Africa as from 1914 until 1927. He died in 1942. (This information
was obtained from Kahn 1991: 96 - 101.)
57 At 61.
135
v The Master (Natal), Respondent 58 where (now Chief Justice) Innes held that,
although some concessions in terms of polygamy were made "in favour of native
tribes with whose laws and customs it was at the time undesirable to interfere", a
polygamous Islamic marriage duly contracted under a foreign legal system which
sanctioned the same, was invalid.59 As seen in Chapter 2, this legal position was
confirmed by the Appellate Division in 1983 in the case of Ismail v Ismail.6o
The dawn of democracy in South Africa has necessitated a re-evaluation of this
state of affairs. The first development in this regard occurred in 1996 under the
interim Constitution, when in Ryland v Edros61 the Cape High Court held that
although an Islamic purely religious marriage was not a valid civil marriage, the
contractual obligations underlying such a union could no longer be regarded as
inimical to public policy and could be enforced." Farlam J (as he then was) was
at pains to point out that this judgment did not apply to Islamic "marriages" that
were de facto ("as opposed to merely potentially") polygynous.63 The condition of
de facto monogamy was also set in two subsequent decisions that (i) extended
the rights to inherit intestate and to claim maintenance to surviving spouses to
Islamic marriaqes'" and (ii) allowed the dependants of a deceased spouse to
such a marriage to claim loss of support for the death of their breadwinner.P''
Both Courts declined to express themselves on the position regarding de facto
polygynous Islamic marriaqes."
58 1917 AD 302.
59
"Now polygamy is repugnant to the policy and the legal institutions both of Holland and of
England. And I know of no case in which the Courts of either country have given effect to a
foreign polygamous marriage or recognized the resulting status of either of the parties to it" (at
308).
60
1983 (1) SA 1006 (A).
61
1997 (2) SA 690 (C).
62
At 704 (A) - 711 (C).
63
At 709 (C) - (D).
64
Oaniels v Campbell NO and Others 2004 (5) SA 331 (CC); 2004 (7) BCLR735 (CC) at par [36).
65
Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening)
1999 (4) SA 1319 (SCA); [1999)4 B All SA421 at par [24).
66
See the paragraphs referred to in the two preceding notes.
136
Regarding Islamic marriages that are indeed polygynous in nature, the erstwhile
Transvaal Provincial Division'" has held that such spouses fall within the ambit of
the Maintenance Act 99 of 1998, with the result that this Act could be invoked in
order to enforce such claims." In a more recent development the Constitutional
Court has further embraced spouses to de facto polygynous Islamic marriages by
allowing such plural spouses to be regarded as such for the purposes of the
Intestate Succession Act 81 of 1987. In Hassam v Jacobs NO and Others69 the
Court stressed the fact that its judgment was "not concerned with the validity of
polygynous marriages entered into in accordance with Muslim rites"? but held
that the position of those persons excluded by the Act had to be evaluated in
accordance with the "new ethos of tolerance, pluralism and religious freedom"
mandated by the democratic constitutional dispensation." As the word "spouse"
as used in the Act was not capable of being interpreted so as to include
polygynous spouses." the Court held that the words "or spouses" were
henceforth to be read in after the word "spouse" wherever the latter appeared in
section 1 of the Act. 73
67 Now the North Gauteng High Court in consequence of the Renaming of High Courts Act 30 of
2008.
68 Khan v Khan 2005 (2) SA 272 (T) per Goodey J: "[T]he argument that it is contra bonos mores to
grant a Muslim wife, married in accordance with Islamic rites, maintenance where the marriage
is not monogamous, can no longer hold water. It will be blatant discrimination to grant, in the
one instance, a Muslim wife in a monogamous Muslim marriage a right to maintenance, but to
deny a Muslim wife married in terms of the same Islamic rites (which are inherently polygamous)
and who has the same faith and beliefs as the one in the monogamous marriage, a right to
maintenance... In any event, the purpose of the [Maintenance Act 99 of 1998] would be
frustrated rather than furthered if partners to a polygamous marriage were to be excluded from
the protection the Act offers, just because the legal form of their relationship is not consistent
with the Marriage Act" (italics added).
69 Unreported judgment of the Constitutional Court (Case CCT83/08) delivered on 15 July 2009.
70 Par [17] (emphasis added).
7l Par [28].
72 Par [44]- [48].
73 Par [57]. It is interesting to note that, despite the fact that the Court in Hassam specifically found
the provisions of the Intestate Succession Act 81 of 1987 to discriminate unfairly against
polygynous Muslim marriages (see par [39]; [43] and 3.1 of the order in par [57]), the Court did
not restrict the words to be read into the Act to Muslim spouses as such-instead by ordering
that the words "or spouses" were henceforth to be read into the impugned sections of the Act
(par 3.2 of the order in par [57]) it could be argued that the order also extends to other
potentially polygynous religious marriages (such as those included in terms of the Hindu faith).
137
Before moving on to the position of marriages entered into in terms of the tenets
of religions other than Islam, it is important to emphasise the fact that the
extensions thus far granted to Islamic marriages have not altered the position
that such marriages are not valid marriages at common law.74 Whether this
position will change in the foreseeable future is at this stage uncertain. The
impasse that persists is summarised by Goolam" when he states that
[jlurists and scholars-both Muslim and non-Muslim-often differ in their interpretation
of the sources of Islamic law. These interpretations range from the conservative to the
liberal to the radical, the last-mentioned calling for radical changes to certain aspects of
the application of the Shari'ah. The South African Law [Reform) Commission [has
investigated) how Islamic family law could be made consistent with the constitutional
Bill of Rights. In this regard, two fundamental issues should be considered. First, it is
clear that our Constitution and the present-day concept of human rights is a product of
Western ideas. Why, in a case of cross-cultural conflict, should Western culture and
notions serve as the yardstick? And, second, why should provisions of the Qur'an, which
is higher law, be brought in line with a secular legal system?
Although a draft Muslim Marriages Bill has recently appeared, attempts to force
the enactment of the Bill created a furore in March of 2009. This began with the
filing of an application for direct access to the Constitutional Court by the
Women's Legal Centre Trust who alleged that the State had failed to meet its
constitutional obligations by not enacting legislation granting full validity to
Muslim rnarriaqes." The applicants sought an order in terms of which the State
would be granted a period of 18 months to enact the requisite legislation.?? This
application was met with vehement opposition by 34 traditional Muslim bodies
This appears to be an oversight by the Constitutional Court, as no analysis of the position of
spouses to other religious marriages is conducted anywhere in the judgment.
74
See for example Ismail v Ismail2007 (4) SA 557 (E) at par [7].
75
2002: 20.
76
Women's Legal Centre Trust v President of the Republic of South Africa and Others (unreported
judgment of the Constitutional Court (Case CCT13/09) delivered on 22 July 2009) at par [1].
77
Women's Legal Centre Trust v President of the Republic of South Africa and Others (unreported
judgment of the Constitutional Court (Case CCT13/09) delivered on 22 July 2009) at par [1].
138
who opined that such legislation was not sanctioned by their religion and that
"Muslims in their overwhelming majority do not engage in civil marriages, in an
attempt to avoid the legal consequences arising from them.,,78 On 22 July 2009
the Constitutional Court ruled that the application could not succeed as it neither
(i) fell under the Constitutional Court's exclusive jurisdiction, nor (ii) warranted
direct access to the Court. A finding of particular importance in the latter regard
is that the Court found that it would be "inappropriate" for it to attempt to resolve
the considerable factual and legal issues that were in dispute as a Court of both
first and final instance." One of these issues, presumably, is the issue of
patriarchy in terms of which the husband is the head of the family and his wife
assumes a subservient position in relation to him.8o This principle clearly
conflicts with clause 3 of the 2009 draft Bill which states that:
A wife and a husband in a Muslim marriage are equal in human dignity and both have,
on the basis of equality, full status, capacity and financial independence, including the
capacity to own and acquire assets and to dispose of them, to enter into contracts and
to I·rtt.gate. 81
The difficulty posed by this conflict underscores the soundness of Cameron J's
judgment in the recent Women's Legal Centre Trust case as it is undoubtedly so
that "ventilation of the difficult issues" surrounding Muslim marriage legislation is
urgently required, and that this can only take place if a "multi-stage litigation
78 Legalbrief Today - 26 March 2009 available at http://www.legalbrief.co.za (accessed on 26
March 2009).
79 Par [28].
80 Cronjé and Heaton 2004: 222. See Currie and De Waal 2005: 355.
81 This provision seems to support Currie and De Waal's submission (2005: 355) when they state
that "[t]he drafting of legislation will therefore be a difficult affair because religious-based
marriage, personal and family law often discriminates against women. The same was of course
true of the common law of marriage, until the legislature intervened to remove the most blatant
forms of discrimination. The only alternative seems to be legislation that recognises traditional
and religious marriages, and gives effect to them in terms of customary and religious law, but
removes the discriminatory elements of those systems of law." Recent litigation (see the
discussion in the main text) shows that doing so is easier said than done.
139
process" is followed that allows parties a right of appeal and facilitates the
hearing of expert witnesses where necessary."
The position of spouses to Hindu religious marriages has also recently been the
subject of judicial scrutiny. In Singh v Ramparsad 83the Durban and Coast Local
Division of the High Court'" dismissed the plaintiff's assertion that the Marriage
Act 25 of 1961 and the Divorce Act 70 of 1979 violated her rights to equality and
dignity by not recognising her (de facto monogamous) purely religious Hindu
marrtace." Accordingly, such a "marriage" could only obtain the "imprimatur of
the State"86 by being solemnised in terms of the Marriage Act. Certain
problematic aspects of this case are considered in more detail in Chapter 5.
The position of a spouse to a de facto monogamous purely religious Hindu
marriage has however to some extent been ameliorated by the judgment in
Govender v Ragavayah NO and Others 87in which the same division of the High
Court held, on the back of substantial jurisprudence, that the word "spouse" in
section 1 of the Intestate Succession Act of 198788 is capable of including "the
surviving partner to a monogamous Hindu marriage.,,89
In closing, it is interesting to note that despite the significant body of case law
dealing with the position of purely religious marriages, not one case has
expressed itself on the extent to which consortium omnis vitae is recognised
between the spouses to such marriages. Prima facie, it would appear that such
82 Par (27) and (28).
83
2007 (3) SA 445 (D).
84
Now the KwaZulu-Natal High Court, Durban in consequence of the Renaming of High Courts Act
30 of 2008.
85 Par [53).
86 Par (47).
87
2009 (3) SA 178 (D).
88
Act 81 of 1987.
89
Par (44). The position of polygynous Hindu marriages in relation to intestate succession is
uncertain-see note 73 where it is speculated that the Constitutional Court's judgment in
Hossom v Jacobs NO and Others (unreported judgment of the Constitutional Court (Case CCT
83/08) delivered on 15 July 2009) may (perhaps inadvertently) not necessarily be restricted to
polygynous Muslim marriages.
140
spouses could at a minimum insist that the remarks made by Ackermann J within
the context of same-sex life partners in National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs90 applied equally to them. This would imply
that the parties would be presumed, inter alia, to have "the same ability to
establish a consortium omnis vitae" inter partes as spouses to a valid civil
marriage have, but that the full recognition of the same (such as for the purposes
of enforcing it on third parties) could only be accomplished by way either of an ad
hoc judicial extension or by way of legislation that validated such marriages for
the purposes of South African law.91
5. CONCLUSION
The post-1994 developments in South African family law have been occasioned
in accordance with the behests of the Constitution and are undoubtedly
commendable from that point of view. Nevertheless, there is a downside, namely
that, as Sachs J described in Minister of Home Affairs v Fourie,92 "developments
since [National Coalition for Gay and Lesbian Equality v Home Affairs have] led
to a patchwork of laws that [do] not express a coherent set of family law rules.,,93
This "patchwork" does not only involve the differentiation between the legal
position in which same-sex and opposite-sex life partners find themselves, but
also includes the uncertain legal position pertaining to spouses involved in purely
religious marriages. Added to this, the fact that three different statutes currently
regulate marriage in South Africa does little to "express a coherent set of family
law rules." The upshot of all of this is an incoherent family law or interpersonal
90
2000 (2) SA 1 (CC) at par [53] (quoted earlier in the main text).
91
In the latter regard, this might be accomplished be means of a clause similar to section 13 of the
Civil Union Act 17 of 2006. Clause 2(5) of the draft Muslim Marriages Bill states that "[a] Muslim
marriage to which this Act applies and in respect of which all the requirements of this Act have
been complied with, shall for all purposes be recognised as a valid marriage" (emphasis added).
This would obviously imply the full extension and recognition of consortium omnis vitae in the
case of such a marriage.
92 2006 (1) SA 524 (CC).
93 Par [125].
141
relationship framework, the complexity of which is perhaps most strikingly
illustrated by way of the following dlaqrarn."
INTERPERSONAL RELATIONSHIPS IN
SOUTH AFRICA
-: I <,
I MARRIAGE -, I r LIFE PARTNERS J I CIVil PARTNERSHIP I~/ <,
CIVil MARRIAGE CUSTOMARY OTHER (PURElY Same-sex and
MARRIAGE UNDER CIVIL MARRIAGE REliGIOUS) opposite-sex
UNION ACT "MARRIAGES" couples
,,
~ ~ ,,
,, Piecemeal
Opposite-sex Same-sex and Monogamous and ,L ____ recognition provided
couples only opposite-sex polygynous by Courts and
couples customary marriages Legislature; minimal
protection provided
~ ~ bv common law
Common law Civil Union Act Recognition of
Civil Union Act 17
and Marriage 17 of 2006 Customary Marriages
of2006
Act 25 of 1961 (marriage) Act 120 of 1998
(civil partnership)
~--- 1 . leg aI consequences of
marriage in terms of ______ J
Marriage Act 25 of 1961
apply
Figure 3.1: Legal recognition of interpersonal relationships in South Africa
Figure 3.1 illustrates in no uncertain terms that interpersonal relationships in
South Africa are governed by an intricate and highly complex body of law.
Moreover, the developments sketched throughout this Chapter show that the
legal position is inconsistent and at times anomalous; particularly where non-
formalised life partnerships are concerned. It is hoped that this study will
94
This graphic originally appeared in a chapter written by the author of this study in Robinson et al
2009 (see page 16). It has been reproduced in a slightly adapted format with permission of the
editor.
142
contribute towards resolving some of these difficulties. To this end, the following
conclusions have been reached in this Chapter:
• The notion of consortium omnis vitae is currently fully recognised in all
valid marriages and civil partnerships entered into in South Africa. As
such, the consortium, which as seen in Chapter 2 constitutes the essence
and objective hallmark of marriage, is no longer reserved for heterosexual
married couples only. The changing face of marriage in South Africa over
the past two decades shows that the South African civil marriage has
come full circle in embracing the reforms that have typified the "second
wave" of the Enlightenment contractarian model in foreign jurisdtctions."
• Turning to the position of life partners, in National Coalition for Gay and
Lesbian Equality v Minister of Home Affairs96 the Constitutional Court
specifically recognised the ability of same-sex couples to establish a
consortium omnis vitae inter partes. This decision, however, only dealt
with the position of same-sex couples, with the result that unmarried
heterosexual couples do not fall within the ambit of this case.
Nevertheless, the validation of same-sex marriages has thrown the
position of post-Civil Union Act life partners who have elected not to marry
despite having the option to do so into sharper relief as these couples
strictu sensu now find themselves in the same position as unmarried
heterosexual couples have always done." This immediately raises the
question as to whether such couples can still rely on the pre-Civil Union
Act judicial extensions occasioned by cases such as National Coalition for
Gay and Lesbian Equality v Minister of Home Affairs, or whether the so-
95 See the discussion of these reforms in Witte 1997: 209 et seq and in Chapter 2 above. Also see
Bonthuys 2008: 482.
96 2000 (2) SA 1 (CC).
97 See for example Gory v Kolver NO 2007 (4) SA 97 (CC)at par [29]; Robson 2007: 426.
143
called "choice argument"98will prevent this possibility. If the answer to this
question is in the negative, the pre-Civil Union Act extensions will be
erased; effectively drawing a line through the body of jurisprudence thus
far developed regarding partners in non-formalised life partnerships.f"
This would imply that they would be deprived of the "essence and
objective hallmark,,1ooof their relationship inter partes which in principle
was recognised in the Home Affairs case. Furthermore, it is important to
remember that the extensions occasioned by the judiciary were not
confined to the recognition of consortium omnis vitae between the same-
sex partners themselves but also involved claims based on the existence
of a reciprocal duty of support, adoption, etcetera. The "choice argument"
therefore has grave implications for unmarried life partners as it cuts
across the issue of consortium between such partners as well as the other
extensions to which they have become entitled in the wake of the Home
Affairs case. It also raises important issues pertaining to the autonomy of
parties who should be entitled to legal protection without necessarily
having to enter into a marriage in order to obtain the same. On the other
hand, if the pre-Civil Union Act judgments still stand, it becomes clear that
the law differentiates between heterosexual and homosexual unmarried
couples; a situation that is equally undesirable.
The preceding paragraphs highlight the fact that the piecemeal and
inconsistent recognition granted to life partners in post-1994 South Africa
and the subsequent validation of same-sex marriage has spawned
complex issues regarding the position of unmarried couples. One
objective certainty, however, is that this state of affairs coupled with the
general lack of common law protection creates a highly unsatisfactory
"patchworked" legal position that requires the urgent attention of the
98
This argument involves the contention that parties who have elected not to marry one another
are, by virtue of this choice, not entitled to avail themselves of the protection provided by
matrimonial (property) law.
99
See Bilchitz and Judge 2007: 496, 497.
100
See 4 and 5 in Chapter 2 above.
144
Legislature in the form of domestic partnerships legislation drafted
according to a well-defined, robust and effective domestic partnership
rubric in the manner advocated in the preceding Chapter. The essential
features of such a rubric and its attendant legislation would be for it to give
context-specific effect to the consortium omnis vitae that exists between
such partners as "the essence and objective nallmark'"?' of their
relationship (by, for example, taking the extent of public commitment into
account) and for it to recognise and regulate the legal consequences of
such relationships in a reliable, effective and constitutionally-valid manner.
In addition, legislation based on a domestic partnership rubric that co-
exists with and complements the institution of marriage would serve to
allay the fears expressed by authors such as Witte and Glendon 102
regarding the fact that the global shift towards a contractarian model of
marriage may undermine the equality and freedom of women and the
protection of children.l'" Two further salutary effects of such a rubric and
its resultant legislation would be its role in "de-centering marriage as the
sole and primary status to be accorded to interpersonal relationshlos."?'
coupled with the role it would play in the "acknowledgment and
acceptance of difference,,,105particularly where gay and lesbian couples
are concerned.l'"
101 See 4 and 5 in Chapter 2.
102
See Witte 1997: 214, 215.
103
Also see Bonthuys 2007: 542 who opines that civil marriage law fails to protect "vulnerable
family members, often women and children."
104 Bilchitz and Judge 2007: 497.
105
Per Ackermann J in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1)
SA 6 (CC) at par [134).
106
De Vas 2007(a): 449 describes this as a rejection of "the notion of heteronormativity" which in
essence is what Ackermann J had in mind when in National Coalition for Gay and Lesbian Equality
v Minister of Justice 1999 (1) SA 6 (CC) he stated that: "The acknowledgment and acceptance of
difference is particularly important in our country where group membership has been the basis
of express advantage and disadvantage. The development of an active rather than a purely
formal sense of enjoying a common citizenship depends on recognising and accepting people as
they are. The concept of sexual deviance needs to be reviewed. A heterosexual norm was
established, gays were labelled deviant from the norm and difference was located in them. What
the Constitution requires is that the law and public institutions acknowledge the variability of
human beings and affirm the equal respect and concern that should be shown to all as theyare.
At the very least, what is statistically normal ceases to be the basis for establishing what is legally
145
The question that now arises is what the content of such a rubric must be.
Legislative activity has thus far produced a draft Domestic Partnerships
Bill, 2008 that saw the light of day in January of that year.l'" This Bill
will-as a prototype-constitute the legislative substructure of the rubric.
This substructure will be modified in the light of conclusions drawn from an
in-depth analysis of the case law, common law and legislation impacting
on life partnerships in South Africa in Part 2 and an analysis of the Bill
itself in Part 3. The final constituent element of the rubric will involve the
calibration of the substructure with existing and prospective legislation
dealing with life partnerships so as to ensure legal certainty and
consistency. The composition of the rubric can therefore be illustrated as
follows:
1. Domestic Partnerships Bill, 2008
1
Domestic Partnership Rubric = 2. Modified in the light of conclusions reached
in Parts 2 and 3
1
3. Aligned with applicable legislation impacting
on domestic or life partnerships
• Before embarking on this task, a final remark must be made regarding the
legal recognition of consortium within the context of purely religious
normative. More broadly speaking, the scope of what is constitutionally normal is expanded to
include the widest range of perspectives and to acknowledge, accommodate and accept the
largest spread of difference. What becomes normal in an open society, then, is not an imposed
and standardised form of behaviour that refuses to acknowledge difference, but the acceptance
of the principle of difference itself, which accepts the variability of human behaviour" (par [134],
emphasis added and footnote omitted).
107
Notice 36 of 2008 as it appeared in Government Gazette No. 30663 of 14 January 2008. The
history of the Bill is discussed in Chapter 7.
146
marriages. While the conclusion has been reached in this Chapter that
such spouses should prima facie at least be entitled to the recognition
provided to same-sex life partners by the Constitutional Court in National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs, the
precise manner in which any further recognition should occur falls beyond
the parameters of this study. However, the fact that such spouses have
entered into a marriage involving a public commitment should in principle
entitle them to a consortium that is identical to that created by a valid
marriage.
147
CHAPTER 4:
TERMINOLOGY, PARAMETERS AND CRITERIA
1. INTRODUCTION TO PART 2
Having established the need for a robust domestic partnerships rubric inaccordance with which the prototype Domestic Partnerships Bill, 2008is to be modified, Part 2 of this study aims to assess the legal position
of persons involved in non-formalised interpersonal relationships in contemporary
South African law with a view to establishing some of the principles that are to
drive this modification process. This will commence with an examination of the
terms used to describe these relationships in the Chapter that follows with a view
to ascertaining the correct terminology and setting the parameters within which
the domestic partnerships legislation should be developed. The Chapters that
follow will proceed to analyse case law, common law and legislation pertaining to
non-formalised interpersonal relationships with a view to establishing certain
principles which should be embodied in the legislation so that its alignment with
South African law in general and family law in particular can be assured.
148
2. TERMINOLOGY
The incidence of people who live together or cohabit outside of marriage is a
world-wide phenomenon.' and the terms employed to describe it are as diverse
as its geographical ubiquity. In this regard, Sinclair and Heatorr' mention that
terms such as "common-law marriage", "living together", "shacking up" and
"concubinage" are often used to describe the union that exists between two
cohabiting persons. The most recent terms to appear in South African legal
literature are the terms "life partnership'? and "domestic partnership" and the
latter term is, incidentally, the term that is favoured by the South African Law
Reform Commission in its 2006 Report on Domestic Pertnershios?
The terms listed above are however not all suitable in a South African context,
and for this reason this Chapter will be dedicated towards explaining the
terminology that will be used for the purposes of this Part of this study and
substantiating the reasons for the particular option chosen.
In the paragraphs that follow the acceptable terms will first be discussed, after
which the unacceptable (or less-suitable) terms will be considered. The reason
for opting to deal with the acceptable terms first is that these terms are preferred
precisely because they establish the parameters and criteria which will be used
for the purposes of this Part of this study. Only once these parameters and
criteria have been established can the rationale behind the rejection of the
unacceptable terms be understood. It is therefore necessary to consider the
acceptable terms first.
SALRC2006: 20; Singh 1996: 315.
1996: 267.
See for example Cronjé and Heaton 2004: 227 et seq.
See for example Schwellnus 1994: 1; Goldblatt 2003: 610.
SALRC2006: 10.
149
2.1 Terms that are acceptable in a South African context to describe
persons who are involved in non-formalised permanent marriage-like
relationships
2.1.1 The terms "(extramarital) cohabitation" and "cohabitation"
Although the term "cohabitation" is generally defined as "the state or condition of
living together as husband and wife without being married," it is generally
accepted that the term is gender-neutral and that it can include both heterosexual
and homosexual persons who live together in a non-formalised union?
Nevertheless, the term is often still used exclusively within the context of
heterosexual cohabitants." This may lead to confusion; a factor which may serve
as a preliminary indicator of the unsuitability of this term for the purposes of this
study.
The term "extramarital cohabitation" was at times encountered in South African
law and literature," and for many years this term would probably have been more
technically correct than a simple reference to "cohabitation." As it stands, this
term is however no longer appropriate, due to the fact that the word "extramarital"
is problematic. The reason for making this submission is that for many years the
marriage was the only means by which couples could secure full legal
recognition of their relationships and the word "extramarital" could therefore be
used relatively freely. This position has however changed after the coming into
operation of the Civil Union Act10 on 30 November 2006 due to the fact that this
Act provides for both marriages and "civil partnerships" to be concluded. A "civil
partnership" is available to persons who want the consequences of civil marriage
Sinclair (ed) 2001: 288 (emphasis added). Also see Schwellnus 1994: l.
Sinclair and Heaton 1996: 299, 300; Schwellnus 2008: N2.
8
See Schwellnus 2008: N2. It is also interesting to note that in Clark (ed) Family law service
(2008), two separate chapters deal with "Cohabitation" (written by Schwellnus (2008)) and
"Same-sex life partnerships" (by Schafer 2008(b)) respectively.
See for example 8 vS 1995 (3) SA 571 (A) at 579 (D); Visser and Potgieter 1998: 4. In the first
edition of their work Cronjé and Heaton (1999: 1) used the term "extra-marital relationship."
10
17 of 2006.
150
to apply to their unions without such unions being referred to as "marriages."
The upshot of this development is that the civil partnership has provided an
alternative to civil (and customary) marriage that did not exist prior to the
enactment of the Civil Union Act, and for this reason, cohabitation can no longer
be labelled as of necessity being "extramarital." It is consequently submitted that
the correct definition should instead indicate the fact that cohabitants are persons
who are either unmarried or persons who have not entered into a civil
partnership. For this reason it is submitted that the term "(extramarital)
cohabitation" is probably better suited as it describes the current legal position
more accurately."
However, the term is an ungainly one. Nevertheless, even if the term is
abbreviated to "cohabitation", the problem still remains that it is often interpreted
as only referring to heterosexual relationships, for, as Schwellnus 12 mentions,
although the term may include same-sex couples, "[s]ome authors still use the
more traditional definition that limits the term cohabitation to two people of the
opposite sex living together." Furthermore, as seen in this quote, the term seems
to presuppose that the parties share a common abode; something which, as will
be seen below, should not necessarily be an absolute requirement. For these
reasons it is suggested that the term "cohabitation" cannot be used with complete
confidence.
2.1.2 The term "life partnership"
This term has become fairly prominent in recent years and is the description of
choice for a number of authors including Cronjé and Heaton, 13 and Schafer."
The Courts have also been prepared to use this term within the contexts of both
11 See Robinson et a/2009: 39.
12 2008: N2.
13 2004: 227.
14 2006: 628.
151
heterosexual and homosexual relationshlps." The term is therefore gender-
neutral and flexible and consequently allows the difficulties that a term such as
"cohabitation" may cause in this regard to be avoided. As a result, it is
suggested that the term itself conveys the very essence of the topic under
discussion. In view hereof, the term "life partnership" will be used for the
remainder of this Part of this study.
2.1.2.1 Life partnership in the wide and narrow senses
The term life partnership can (much like any other term that is used to describe
the relationship between two people who are involved in a non-formalised
interpersonal relationship) be used in both a wide and narrow sense."
2.1.2.1.1 Life partnership in the wide sense
In the wide sense a life partnership includes both the relationship (i) between two
people who, regardless of their sex, live together in a permanent union without,
as Hahlo 17 puts it "ever having gone through a marriage ceremony" although they
are not prevented by law from validly marrying one another in terms of civil or
customary law; and (ii) the relationship between two people who live together
after having entered into a "marriage" that is not regarded as a valid marriage by
South African law or who are prohibited from marrying one another. In the latter
regard, such relationships are often (but not necessarily always) encountered
within the context of "marriages" that have been concluded according to the
tenets of specific religions without complying with applicable marriage
15
See for example Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) at par
[16] and J and Another v Director General, Department of Home Affairs, and Others 2003 (5) SA
621 (CC) at par [19].
16
See Hahlo 1975: 34 who explains the wide and narrow senses of the term "concubinage." The
same differentiation can be applied to the term "life partnership."
17
1975: 35.
152
legislation 18and are therefore described for the purposes of this study as "purely
religious 'marrtaoes."'" They may also be encountered in the sense of
"marriages" between persons who are prohibited from marrying one another by
South African law,2o or in instances where a person is involved in a life
partnership with person A while being a spouse in a subsisting civil marriage with
person 8.21
2.1.2.1.2 Life partnership in the narrow sense
In contemporary South Africa in which same-sex marriages are legally
permissible, a life partnership in the narrow sense refers to the first relationship
mentioned above, namely two persons who, regardless of their sex, are involved
in a permanent interpersonal relationship without the two of them22 ever having
participated in a marriage ceremony of any kind (or having concluded a civil
partnership) despite the fact that there is no impediment to the conclusion of a
valid marriage or civil partnership between them. The requirement that there
must be no legal impediment to entering into a marriage or civil partnership is of
necessity subject to one major exception, namely that the fact that a same-sex
couple entered into a life partnership prior to the legalisation of same-sex
marriages will not bar this union from constituting a life partnership in the narrow
sense.23 In the case of this group, the fact that the life partners "married" one
another prior to the validation of same-sex marriage in 200624or participated in a
18
Currently the Marriage Act 25 of 1961, the Civil Union Act 17 of 2006 or the Recognition of
Customary Marriages Act 120 of 1998.
19
See 4 in Chapter 3.
20
Hahlo 1975: 35. Such a marriage may result in a putative "marriage." The position of such
"marriages" is discussed in 2.2.3 below.
21
This situation is discussed in 2.4 in Chapter 6.
22
This implies that one of the life partners may indeed have married someone else in terms of
customary law or in accordance with the prescripts of a recognized and established religion-see
the discussion of the requirement of monogamy at 2.1.2.2 below.
23
See Hahlo 1975: 35. This situation is often described by a plethora of terms such as
"concubinage", "common-law marriage" and "de facto marriage." The use of these terms is
discussed at 2.2 below.
24
See for example Du Plessis v Road Accident Fund 2004 (1) SA359 (SCA) at par [3].
153
"commitment ceremony''" will also be irrelevant from a legal point of view
(although it may serve to prove the existence or duration of the union).
For the purposes of this study, the term life partnership will, unless otherwise
indicated, refer to the narrow sense only.
2.1.2.1.3 The reason for distinguishing between life partnerships in the wide
and narrow senses
Since 1994 the piecemeal legislative and judicial intervention that has taken
place has resulted in a considerable number of the consequences of marriage
being extended to non-formalised relationships. These developments have
involved parties of the opposite sex who lived together without being married or
attempting to do so, parties of the same sex who lived together and were
prevented at the time from marrying one another and parties to purely religious
marriages that did not comply with the requirements of a civil marriage. The
important point to bear in mind is that all of these relationships strictu sensu
involved life partnerships in the wide sense due to the fact that the parties lived
together without being validly married. This (piecemeal) recognition has
therefore extended to a broad range of relationships falling both within the wide
and narrow categories of life partnership circumscribed above; a situation that
has resulted in a complex legal position. At times, these developments overlap,
while in other instances they may contradict one another. For this reason, it is
important for the purposes of this Chapter and for the sake of clarity to
distinguish between life partnerships in the wide and narrow senses. For
example, as seen in the description of a life partnership in the narrow sense, a
couple who have participated in a purely religious marriage which is not
25
SeeDu Toit and Another v Minister of Welfare and Papulation Development and Others (Lesbian
and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC) at par [4]. The fact that such
parties have entered into such a "marriage" or have participated in the ceremony may be
relevant for the purpose of proving the stability of their union and hence determining whether a
legally-enforceable duty of support was created inter partes. This aspect is discussed in more
detail in Chapter 5 below.
154
recognised by South African law will not, merely because of the fact that they are
not validly married, qualify as life partners in the narrow sense. The reason for
this is that legal principles regulating these relationships have developed
independently from those regulating life partnerships in the narrow sense,26
resulting in a separate body of law which must be distinguished from the legal
principles that currently regulate life partnerships in the narrow sense." If this is
not done, absurdities will result."
Care must be taken therefore to remember that, unless otherwise indicated, the
term "life partnership" for the purposes of Part 2 of this study will connote such a
partnership in the narrow sense.
2.1.2.2 Parameters of and criteria for life partnerships in the narrow sense
Irrespective of the terminology employed to designate non-formalised unions, a
life partnership in the narrow sense should comply with certain criteria and
should function within certain parameters. In the brief discussion that follows,
issues such as permanence, cohabitation, dependence, monogamy and intimacy
will be considered.
26 See 3 and 4 in Chapter 3 above.
27
Writing before these developments occurred, Sinclair and Heaton (1996: 269) opined that
"[w)here a putative marriage does not exist, the parties to Muslim and Hindu marriages are
cohabitants." This statement was correct at the time it was made. However, subsequent judicial
pronouncements and legislative developments necessitate a qualification to this statement in
order for it to be valid in contemporary South Africa. In this regard, it is submitted that the
distinction between life partnerships in the wide and narrow senses suggested above will serve
this purpose.
28
For example in Daniets v Campbell NO and Others 2005 (5) SA 531 (CC) the Constitutional Court
held that the Intestate Successian Act 81 of 1987 as well as the Maintenance af Surviving Spouses
Act 27 of 1990 were to be extended so as to include the parties to de facto monogamous purely
religious Islamic marriages (which are regarded as life partnerships in the wide sense). On the
other hand, in Gory v Kolver NO 2007 (4) SA 97 (CC); 2007 (3) BCLR294 (CC) the Constitutional
Court extended the Intestate Succession Act of 1987 to homosexual life partnerships in the
narrow sense, while in Volks NO v Robinson 2005 (5) BCLR446 (CC) the same Court refused to
permit the surviving heterosexual life partner in the narrow sense to qualify as a "survivor" for
the purposes of the Maintenance of Surviving Spouses Act of 1990. The inconsistencies that will
be created by conflating life partnerships in the narrow and wide senses become obvious.
155
In order for a union to qualify as a life partnership in the narrow sense, it is
essential for such a union to have a measure of permanence." In this regard it
stands to reason that whether or not a union is permanent must be determined
on the facts of the matter. In National Coalition for Gay and Lesbian Equality v
Minister of Home Affairs 30 a comprehensive (but not exhaustive) list of factors
was provided in order to ascertain whether or not a same-sex relationship was
permanent. 31 Despite the fact that the case dealt with the position of same-sex
couples, there appears to be no reason why the same factors would not be of
assistance in order to ascertain the degree of permanence of heterosexual
relationships. In addition, an analysis of case law reveals that the Courts have
been prepared to make decisive findings pertaining to permanence on the
evidence placed before thern." Suffice it to say, therefore, that a measure of
permanence is an essential requirement; the existence of which must be
determined with reference to all of the facts and not solely on the basis of the
length of the duration of the union."
29
See for example Ripoll-Dausa v Middleton NO and Others 2005 (3) SA 141 (C) at 154 (C) - (F)
where the order sought by the applicant (to be regarded as a "spouse" for the purposes of the
Intestate Succession Act 81 of 1987 and the Administration of Estates Act 66 of 1965 and as a
"survivor" and "spouse" for the purposes of the Maintenance of Surviving Spouses Act 27 of
1990) could not be granted due to a dispute as to "the single most important question of fact"
namely as to whether or not the applicant and the deceased were permanent life partners. Also
see National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
at par [57], [86] and [88]; Hahlo 1985: 37; SALRC2003: 8.
30 2000 (2) SA 1 (CC).
31
At par [88].
32
Most of the case law has involved relationships of fairly long duration, for example in Du Plessis v
Road Accident Fund 2004 (1) SA 359 (SCA) the parties had been living together for approximately
11 years. In Bezuidenhout NO v ABSA Versekeringsmaatskappy Bpk (unreported judgment of the
Transvaal Provincial Division [now the North Gauteng High Court, Pretoria in consequence of the
Renaming of High Courts Act 30 of 2008], case no 40688/2008 delivered on 26 February 2008)
the parties had been cohabiting for almost twenty years. However, it appears that lengthy
duration is not necessarily required. For example, in Gory v Kolver NO and Others 2006 (5) SA
145 (T) at par [5] and [18] the Court found the union to be permanent even though the parties
had been cohabiting for less than one year; a factual finding that was not disputed in the
subsequent confirmation proceedings in the Constitutional Court (see 2007 (4) SA 97 (CC) at par
[2]). On the other hand, in Ripoll-Dausa v Middleton NO and Others 2005 (3) SA 141 (C) a dispute
as to the existence of a permanent life partnership prevented the application being granted and
prompted the Court to postpone the application for a date on which viva voce evidence in this
regard could be heard.
33
See the preceding note.
156
The legal position as to whether or not permanent cohabitation is indeed an
absolute requirement for the purposes of establishing permanence is not clear.
In this regard something of a contradiction appears in the aforementioned
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs case
in that while Ackermann j stated that "[p]ermanent in this context means an
established intention of the parties to cohabit with one another permanently.t" he
later listed the question as to "whether the partners share a common abode" as
merely one of the factors to be considered in order to establish permanence."
On this basis Wood-Bodlel6 opines that permanent cohabitation is not essential
and that the intention of the parties and their views as to whether or not their
union is indeed permanent should be the decisive factor. It is submitted that this
approach is to be supported." Therefore, although permanent cohabitation is
often a feature of non-formalised unions, it is suggested that in order to ascertain
whether the requirement of permanence has been met it must appear, after all
the facts have been considered, that the parties have evinced the unequivocal
intention to regard their union as permanent."
Regarding the requirement of monogamy, legal developments regarding life
partnerships in the narrow sense have thus far been limited to monogamous
unions." Nevertheless, it is important to note Van Schalkwyk's observation that
34 Par [86].
35 Par [88].
36 2008(b): 261.
37 Specific legislation may however require a minimum period of cohabitation. An example is
section 31 of the Special Pensions Act 69 of 1996 which requires "a continuous cohabitation in a
homosexual or heterosexual partnership for a period of at least 5 years" in order for a union to
qualify as a "marriage relationship" for the purposes of the Act's definition of "spouse." Also see
Volks NO v Robinson 2005 (5) BCLR446 (CC) at par [175] (note 44); SALRC2006: 152.
38 It is worthy of mention that, within the context of the law of marriage, the reciprocal duty of
support continues to apply even if the parties do not share a joint household unless matrimonial
guilt absolves the innocent spouse of his or her obligations in this regard (see Cronjé and Heaton
2004: 54; Visser and Potgieter 1998: 77 and 78; Van Zyl 2008: C19). The relevance of this duty
within the context of life partnerships will be emphasised throughout this Chapter.
39 See Wood-Bodley 2008(b): 266. As far as purely religious marriages are concerned, the
Constitutional Court recently held that surviving spouses to de facto polygynous Islamic
marriages could qualify as intestate heirs for the purposes of section 1 of the Intestate
Succession Act 81 of 1987-see Hassam v Jacobs NO (Case no. CCT83/08: unreported judgment
157
while polygamy may be contrary to the principles governing civil marriage, the
same cannot be said of customary rnarriaqes." Consequently, it is submitted
that the law must take note of this aspect in instances where one of the life
partners is married to a third party in terms of customary law; particularly due to
the fact that polygynous customary marriages are fully recognised in South Africa
in consequence of the Recognition of Customary Marriages Act.41
Within the context of the civil setting, it is therefore probably correct to assume
that monogamy will be required in such relationships unless specific legislation
permits otherwise. This point of view is shared by Wood-Bodlel2 who
summarises his opinion as follows:
It seems likely, however, that monogamy will be regarded as one of the hallmarks of a
gay or lesbian relationship that is entitled to legal recognition because the respecting of
established cultural or religious systems that have always permitted polygamy is
different to introducing new categories of polygamous relationship that are legally
recognized.
There appears to be no reason why Wood-Bodley's observation cannot extend to
heterosexual life partners. In the end result, a person should qualify as a life
partner in the narrow sense if his or her life partner was validly married to another
woman in terms of customary law or the principles of an established and
recognised religion that permits polyqarny."
of the Constitutional Court delivered on 15 July 2009). This case was briefly discussed in Chapter
3.
40
Per SALRC2006: 383.
41
120 of 1998. It appears as if the SALRC has taken this into account for the purposes of its
proposed unregistered domestic partnership legislation-see SALRC2006: 379 - 383 as well as
clauses 29 - 31 of the Domestic Partnerships Bill, 2008.
42
2008(b): 267.
43
Schafer 2006: 642 opines that "it is hard to see why, for example, a decision to engage in a
polygamous relationship should be treated differently from one involving only two partners." In
this regard it is submitted that although Wood-Bodley's statement regarding the "respecting of
established cultural or religious systems that have always permitted polygamy" (quoted in full
above) provides a sound basis for supporting such a distinction between monogamous and
158
It is also important to note the distinction which Wood-Bodlel4 draws between
monogamy and sexual fidelity. In this regard he is of the opinion that sexual
activity beyond the confines of the relationship should not imply non-recognition
of the relationship. This opinion can be supported, as it is clear that to disregard
the existence of a relationship purely on the basis of sexual infidelity would
discriminate against the parties thereto as a similar result would not follow if the
parties were married to one another." For the purposes of this Part of this study,
it is therefore assumed that the life partners are involved in a monogamous union
unless indicated otherwise.
The next issue to be considered is that of dependence. In this regard it can be
agreed with the South African Law Reform Commission that, where a statute
requires proof of "dependence", this does not necessarily imply need in the
sense of having to prove that destitution would otherwise ensue for one of the
partners but for the relationship." Instead, the criterion of dependence should
entail that the partners are "dependent upon one another for the improvement of
their life" by virtue of the fact that "each is co-operating in the meeting of
expenses." Such a more flexible approach to the issue would therefore entail
that a statute requiring proof of dependence would be interpreted as enquiring
"whether an applicant's lifestyle was 'substantially enhanced' by reason of his or
her relationship with the other partner.':" While such an approach towards
determining whether dependence exists for the purposes of a particular statute or
polygamous life partnerships, there are good reasons why this issue should receive specific
attention in prospective domestic partnership legislation-see 5.2.2.1 in Chapter 7.
44 2008(b): 267, 268.
45 It is interesting to note that Wood-Bodley (2008(b): 267, 268) uses the law of intestate
succession to contrast the respective positions of permanent same-sex life partners and married
couples if the law were hypothetically to disregard the very existence of the former relationship
if it could be proved that one or both parties had been unfaithful. In this regard he states that
"even the most flagrant adulterer is entitled to inherit from his or her spouse on intestacy." The
unfairness which would result if this criterion could negate the existence of such a relationship
and deny the claim of a survivor who might be in dire need thereof illustrates why a more
suitable (and objective) criterion should instead be used within the context of intestate
succession and other comparable claims. As will be seen in Chapter 5, it is submitted that the
existence of a reciprocal duty of support would serve this purpose.
46 SALRC2006: 13.
47 SALRC2006: 14.
159
claim can be supported, recent case law48 leads to the conclusion that
dependence cannot be viewed as the fundamental criterion for determining
whether or not a given union qualifies as a life partnership in the narrow sense. It
can therefore, for the purposes of this discussion, be assumed that while
dependence is not an essential criterion, the fact of dependence can certainly be
of assistance in determining whether a relationship indeed qualifies as a life
partnership in the narrow sense.
This approach also answers the question as to whether a degree of intimacy is
required in order for parties to qualify as cohabitants in the narrow sense. Such
a non-conjugal relationship, also known as a "care partnership", refers to the
situation where the persons involved are financially or emotionally
interdependent on one another, without being sexually lntlrnate." In deciding
whether or not to include such partnerships for the purposes of the domestic
partnership legislation, the South African Law Reform Commission took
cognisance of arguments both for and against their inclusion. In the former
regard the Commission noted the submission that taking care of a person could
"be prejudicial to the caretaker's earning power", while in the latter regard it was
argued that the care partnership was based on love for which the caregiver
should not wish to be rewarded, and that the needs of care partners would not be
adequately addressed by legislation dealing with domestic partnerships.P?
Contrary to the South African Law Reform Commission's recommendatlons." it
will, for the purposes of this Chapter be assumed that the parties to such care
relationships will also qualify as life partners in the narrow sense, provided that
48
See the discussion of Bezuidenhout NO v ABSA Versekeringsmaatskappy Bpk (unreported
judgment of the Transvaal Provincial Division [now North Gauteng High Court, Pretoria], case no
40688/2008 delivered on 26 February 2008) in 3.4.2 in Chapter 5 and in 11.2 in Chapter 7.
49
SALRC2006: 314.
50
SALRC2006: 385, 386.
51
This issue is dealt with fully in Chapter 7.
160
they have never participated in a marriage ceremony (such as a purely religious
marriage) and are not prevented by law from entering into a valid marriage.52
To summarise, it is suggested that in order to qualify as a life partnership in the
narrow sense, a union must be permanent, although this need not imply
permanent cohabitation. The partners must simply unequivocally regard their
union to be permanent, irrespective of whether or not they cohabit on a
permanent basis. The union should be monogamous unless an "established
cultural or religious [system]"53 permits otherwise. Dependence should not be
viewed as an indispensable criterion for a union to qualify as a life partnership in
the narrow sense, but where a statute indeed requires proof of the same, a
flexible approach should be adopted.
2.1.3 The term "domestic partnership"
After conducting extensive research into the matter, the South African Law
Reform Cornrnission'" (as mentioned above) preferred the term "domestic
partnership", to such an extent that this term is the title of proposed legislation in
the form of a draft Domestic Partnerships Bill, 2008 that appeared in January of
the same year.55
In view of this development, it is suggested-purely for the sake of clarity-that,
unless the context indicates otherwise, the term "domestic partnership" will only
52
This approach is supported by the decision in Bezuidenhout NO v ABSA Versekeringsmaatskappy
Bpk (unreported judgment of the Transvaal Provincial Division [now North Gauteng High Court,
Pretoria], case no 40688/2008 delivered on 26 February 2008) at par [13) where the fact that the
lesbian couple shared a common abode was the key consideration in a relationship that had
ceased to be intimate for some time. It is submitted that the existence of a reciprocal duty of
support between the life partners in non-intimate unions will be of paramount importance in
justifying the reason for including such partnerships for the purposes of need-based claims in
terms of domestic partnerships legislation. This aspect is dealt with in Chapters 5 and 7 below,
and the case itself is discussed in 3.4.2 in Chapter 5.
53 PerWood-Bodley 2008(b): 267.
54
SALRC2006: 10. Cronjé and Heaton 2004: 227 prefer the term "life partnership."
55 The Bill appears in Government Gazette No 30663 of 14 January 2008.
161
be used to describe relationships as they are referred to in (and potentially stand
to be regulated by) the South African Law Reform Commission's draft Domestic
Partnerships Bill, 2008 and the rubric that will be applied in Part 3 of this study.
The term "life partnership" will be used in all other senses; particularly with
reference to the legislative and judicial developments that have occurred outside
of this proposed legislation.
2.2 Inaccurate and unacceptable terms
In the paragraphs that follow, a number of terms that are unacceptable in a South
African context will be discussed.
2.2.1 The so-called "common-law marriage"
This term is not suitable in a South African context due to the simple reason that
it is alien to South African family law.s6 As the South African Law Reform
Cornmission'" states "there is no such thing as a 'common-law marriage' in
South African law."s8 Despite this fact, the term "common-law marriage" is still
often erroneously (and mconsistenttyj'" employed by lay-people and jurists'"
alike. The following factors highlight the difficulty created by this term:
2.2.1.1 South African law currently recognises civil marriages, marriages
under the Civil Union Act 17 of 2006 and customary marriages
The term does not fit well within a South African framework that currently
recognises civil and customary marriages, and, in addition, provides for
56
Hahlo 1985: 36, 37; SALRC2006: 15; Heaton 2008(b): 459.
57
2006: 12.
58
Also see Schater 2006: 642.
59
Nkonki v Nkonki 2001 (4) SA 790 (C) at par (5). The diverging (and confusing) use of this term in
cases such as Minister of Home Affairs and Others v Fourie 2006 (1) SA 524 (CC) and in Singh v
Ramparsad 2007 (3) SA445 (D) is discussed in more detail below.
60
See for example Singh v Ramparsad 2007 (3) SA 445 (D) (discussed in more detail in 2.2.1.4
below); Van frk v Ho/mer 1992 (2) SA 636 (W) at 644 (E).
162
marriages under the Civil Union Act 17 of 2006.61 As the law stands, civil
marriages are concluded in terms of the Marriage Act 25 of 1961, while the Civil
Union Act provides for a form of marriage as a creature of statute. On the other
hand, customary marriages are concluded in terms of the Recognition of
Customary Marriages Act 120 of 1998. The term "common-law marriage" is
inappropriate within all of these settings:
• Within the context of civil marriage, a unique interplay exists in South
African law between the civil marriage and the common law. This is due
to the fact that the Marriage Act of 1961 does not contain a definition of
the concept of "marriage." In order, therefore, to define "marriage",
recourse must be had to the common law, which as seen in Chapter 3, in
essence traditionally defined "marriage" as a legally-recognised and
voluntary union entered into between one man and one woman to the
exclusion of all others while it lasts.62 Although civil marriages therefore
have their origin in and are concluded according to South African common
law (as amended by the Marriage Act),63such marriages are referred to as
"civil marriages" and not "common-law marriaqes.r'" The point to be
61 See Chapter 3 above.
62 See Inst 1.9.1; Ismail v Ismail 1983 (1) SA 1006 (A) at 1019 (H) - 1020 (A); Seedors Executors v
The Master (Natal) 1917 AD 302 at 309; Fourie and Another v Minister of Home Affairs and
Others 2005 (3) SA 429 (SCA) at par [83] - [88]. In this regard the common law definition of
marriage should not be confused with the "common-law marriage" in the sense of the marriage
concluded by informal consent prior to intervention by the Fourth Lateran Council of 1215. This
topic is discussed in more detail in Chapter 2 and in 2.2.1.2 below.
63 25 of 1961.
64
Compare Oawood and Another v Minister of Home Affairs and Others; Shalabi and Another v
Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others
2000 (3) SA 936 (CC) (2000 (8) BCLR837) at par [31] where O'Regan J appeared to be of the view
that either of these terms could be used. Admittedly, confusion exists as to the precise content
of these terms. See, for example Ngwenya J's statement in Nkonki v Nkonki 2001 (4) SA 790 (C)
at par [5]: "[m]arriage law in South Africa has been a trying and complex subject matter for years.
While this is to be expected in a multi-ethnic society such as ours, it is unfortunate that very little
literature is available on this subject. For example, many writers refer to common-law marriage
synonymously with Christian marriage. I am not sure whether this is not intended to refer to the
Marriage Act 25 of 1961" (emphasis added). In addition, Sinclair and Heaton 1996: 267 (note 3)
note the awkward practice of using the term "common-law marriage" to describe marriages
between black persons that were concluded in terms of civil as opposed to customary law. In
163
made is therefore that although a civil marriage is a marriage that is
concluded according to the common law definition of marriage, such a
marriage is not valid unless it has been solemnised and registered in
accordance with the provisions of the Marriage Act.65
• In as far as customary marriages are concerned, the term "common-law
marriage" also creates difficulty. This is due to the fact that the common
law definition of marriage only caters for monogamous unions, while
customary law permits both monogamous and polygynous unions. This
difficulty may be illustrated by the following example: Assume that A (an
adult male) is validly married to B (an adult female) in accordance with
customary law. While his customary marriage exists he is prohibited from
entering into a civil marriage with any other person." Assume further that
he attempts to marry a second wife (C) in terms of customary law, but that
this customary "marriage" is void for some or other reason. If he cohabits
with C while still being married to B, neither common law nor customary
law would recognise his "marriage" to C. To describe his relationship with
C as a "common-law marriage" purely by virtue of the fact that he cohabits
with C would therefore be a non sequitur.
• The Civil Union Act provides-as distinct from the civil marriage-for a
marriage which is a creature of statute and therefore is not concluded
according to the common law definition of marriage, but according to the
provisions of the Act by which this institution was created.
order to avoid the confusing state of affairs created by references to religion and "common law"
it is suggested that the term "civil marriage" is more correct.
65
SeeSinclair and Heaton 1996: 306.
66
Section 3(2) read with section 10(1) of the Recognition of Customary Marriages Act 120 of 1998.
164
2.2.1.2 The term creates unnecessary confusion between the parties
involved in as far as their respective legal rights and obligations are
concerned
As Hahl067 mentions, any reference to "common-law marriage" immediately
creates confusion due to its association with the formation of a valid marriage on
the basis of informal consent prior to the Fourth Lateran Council of 1215.68 The
use of the term "marriage" is therefore problematic as it may lead the partners to
infer that some or all of the legal consequences of a marriage apply to their
retationship.ï" Furthermore, if one considers paragraph 2.2.1.1 above, a further
problem becomes apparent in that the term "marriage" in South African law has a
triaxial meaning70 in that it can refer to civil and customary marriages, as well as
to marriages concluded under the Civil Union Act 17 of 2006. In South Africa the
term therefore does not have the one-dimensional meaning that it may have in
other jurisdictions. This being so, applying the term "common-law marriage" to
life partners may cause even greater uncertainty due to the fact that such parties
may in theory (incorrectly) ascribe the consequences of a customary, civil or
marriage under Act 17 of 2006 to what they perceive to be their "common-law
marriage." In addition, the fact that the term is employed in certain foreign
jurisdictions may lead the parties incorrectly to assume that as legal
consequences are attached to "common-law marriages" in such jurisdictions, the
same applies in South Africa, thereby leading them to assume that legal
consequences exist where in reality there may be none."
67 1985: 36.
68 Also see Sinclair and Heaton 1996: 267 (note 3).
69 See Schater 2006: 642; Singh 1996: 318. In this regard Hahlo (1985: 36) states that in addition to
being misleading, the term "confers on a union which is not a legal marriage an aura of
respectability which it does not deserve." In light of the Bill of Rights it would appear as if
Hahlo's sentiments are slightly harsh, but the fact remains that the reference to "marriage" is
jurisprudentially unsound.
70 This dual meaning is not the one referred to by Sinclair and Heaton 1996: 305 (note 1) where the
authors differentiate between the "act or ceremony" of marriage and the "marriage
relationship."
71 For example, the State of Texas in the United States of America permits both common-law
marriages (known as "informal marriages") as well as marriages concluded by way of a
165
2.2.1.3 "Common-law marriage" from the parties' perspective
The correct use of the term "common-law marriage" refers to a relationship in
which a man and woman live together while regarding themselves as being
married as per a mutual agreement to this effect and, on this basis, create the
impression to the outside world that they are rnarried.? Once again, this
illustrates why the term is inappropriate within the life partnership setting, as life
partners do not necessarily believe that they are, or consider themselves to be,
married to one another. On the contrary, many life partners choose to live
together precisely to avoid the strictures of marriage, or because they are legally
prohibited from marrying one another."
2.2.1.4 Case law
The problematic use of the term "common-law marriage" is not limited to
literature on the subject but is also unfortunately encountered in case law.
Moreover, the context within which the term has been employed in the latter
regard has been inconsistent, and, it must be said, at times blatantly incorrect.
Two examples from recent case law can be used to illustrate this submission. In
the case of Minister of Home Affairs and Another v Fourie and Another (Doctors
for Life International and Others, Amici Curieeï'" (hereafter "Minister of Home
Affairs v Fourie") Sachs J stated that
ceremony. The former type of marriage can be proved in two ways, by either filing a
"Declaration of informal marriage" with the County Clerk or by proving the following three
requirements, namely (i) that the couples have reached consensus that they are married; (ii) that
they live together in the State of Texas; and (iii) that they hold themselves out as being married
to outsiders-see section 2.401 of the Texas Family Code and Garduno v Garduno 760 S.W.2d
735 at 738 as well as Texas Department of State Health Services "Marriage and Divorce
Frequently Asked Questions" available at
http://www.dshs.state.tx.us/vs/marriagedivorce/mdfaq.shtm (accessed on 20 April 2009).
72
See SALRC2006: 15 "[a) common law marriage arises when a couple agree between themselves
to be married, hold themselves out to be married, and live together for a substantial period of
time." See the preceding note for an example.
73
See Sinclair and Heaton 1996: 271 et seq; SALRC2006: 22 and 24 et seq; Hahlo 1975: 35.
74
2006 (1) SA 524 (CC) at par [36).
166
[t]he State accordingly acknowledged that partners to same-sex relationships suffer
discriminatory effects and violations of dignity and privacy and that such violations
should be removed. It contended, however, that granting same-sex couples access to
common-law marriage is not the answer, constitutionally or otherwise.
Sachs j's reference to "common-law marriage" was obviously intended to refer to
a marriage that is concluded in accordance with the common law definition of
marriage and solemnised and registered in accordance with South African
marriage legislation, and not within the context of a life partnership or in the
sense of a purely religious marriage that has not been solemnised in accordance
with relevant marriage leqislation." Similar references to the use of the term in
this context are also to be found in other decisions of the highest court in South
Africa." It is submitted that, although this use of the term "common-law
marriage" is technically more correct than when used in the context of a life
partnership, it is apt to create confusion and is therefore not to be encouraged.
On the other hand, as recently as in the 2007 case of Singh v Ramparsad 77_a
matter in which the Durban and Coast Local Division of the High Court was
75 An understanding of the correct context within which to refer to the role of the common law as
far as purely religious marriages are concerned is to be found in Ismail v Ismail and Others 2007
(4) SA 557 (E) where Jones J described the current legal position as "[i]n recent years the highest
Courts in the land have recognised the fact of an Islamic marriage for various purposes, although
it was not entered into in terms of the Marriage Act 25 of 1961 and may not have had the
blessing of the common law" (at 561 (0), emphasis and italics added).
76 A similar reference to "common-law marriage" in this context is to be found in J and Another v
Director General, Department of Home Affairs, and Others 2003 (5) SA 621 (CC) at par [23]. In
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of
Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA
936 (CC) (2000 (8) BCLR 837) at par [32] the concepts "civil marriage" and "common-law
marriage" were equated. In the pre-democratic era, the Appellate Division (the highest court in
South Africa at the time) referred to the term "gebruiklike huwelik" in similar vein-see Suid-
Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo 1960 (2) SA 467 (A) at 474 (B).
77 2007 (3) SA 445 (D). Also see Hlathi v University of Fort Hare Retirement Fund and Others
PFA/EC/9015/2006 (18 March 2009) where, in reaching the conclusion that "[i]t follows
therefore that a common law spouse is a person of the opposite or same sex who is a partner in a
common law marriage. In essence, there is no difference between a cohabitee and a common
law spouse ..." (at par [22]), the Pension Funds Adjudicator recently failed to realise that the
concepts "common law marriage" and "common law spouse" do not form part of our law in the
sense intended in casu.
167
asked to adjudicate on the validity or otherwise of a monogamous "marriage" that
had been concluded in terms of the Hindu faith without being solemnised and
registered according to the Marriage Act 25 of 196178-the term was (incorrectly)
used in the opposite sense, id est in the sense of a purely religious marriage that
had not been concluded according to the common law definition coupled with
appropriate legislation, but was apparently nevertheless a "lawful marriage in
terms of the common law.'?" In casu Patel j remarked as follows:"
The Marriage Act does not proscribe purely religious marriages. These marriages
involve the solemnisation by a minister of religion who is not designated as a marriage
officer for the purposes of the Marriage Act. These religious marriages although they
lack legal validity are regarded as lawful marriages in terms of the common law (see
Oaniels v Campbell NO and Others 2004 (5) SA 331 (CC) (2004 (7) BCLR 735; [2003] 3 All
SA 139)).81
As a point of departure, it must be emphasised that Patel j's statement that
purely religious marriages "are regarded as lawful marriages in terms of the
common law" is not correct. Instead, it reveals a misunderstanding of the
fundamentals of South African marriage law and of the rationale employed in
Oaniels v Campbell NO and Others (the case relied on by Patel j for this
assertion) and Amod v Multilateral Motor Vehicle Accidents Fund (Commission
for Gender Equality Intervening)82 (the case upon which the Oaniels decision was
based).
The reason for making this assertion is that both Amod and Oaniels involved
Islamic purely religious marriages that, by virtue of their potentially polygynous
78
At par [1]- [3].
79
At par [37].
80
At par [39] and [40].
81
Par [37] emphasis added.
82
1999 (4) SA 1319 (SeA).
168
nature, are not regarded as valid according to the common law.83 Therefore,
even if it is true that "the institution of polygyny was viewed through the prism of
the common law and the mores of a politically dominant but a minority section of
our society"." the fact remains that the common law definition of marriage has
not been amended for the purposes of recognising (potentially polygynous)
Islamic "marriages" as lawful marriages-all that has happened is that the Courts
have been prepared to recognise certain legal consequences that attach to
them."
This much was acknowledged by the Courts both in Oaniels and in Amod where
it was categorically stated that the issue to be decided was not whether the
purely religious marriage was valid, but instead whether or not the protection
provided by the common law duty of support (in the case of Amod) and the
Maintenance of Surviving Spouses Act 86 and the Intestate Succession Act 87 (in
the case of Danieis) should be withheld from a de facto monogamous Islamic
rnarriaqe." Admittedly, in Amod Mahomed CJ89 did make the somewhat
confusing statement (that was also relied on by Sachs J in Oanie/s)9o to the effect
that:
83 See Amod v Multiloteral Motor Vehicle Accidents Fund (Commission for Gender Equality
Intervening) 1999 (4) SA 1319 (SCA) at par [17]- [20]; Ismail v Ismail 1983 (1) SA 1006 (A) at 1019
(H) - 1020 (A); Ismail v Ismail and Others 2007 (4) SA 557 (E) at 561 (D) and Sinclair and Heaton
1996: 158.
84 As per Van Reenen Jin Hassam v Jacobs NO [2008] 4 All SA 350 (C) at par [9] (emphasis added).
85 Similar recognition has possibly even been extended to de facto polygynous Islamic "marriages":
In the recent case of Hassam v Jacobs NO (Case no. CCT 83/08: unreported judgment of the
Constitutional Court delivered on 15 July 2009) the Court held that the Intestate Succession Act
81 of 1987 was unconstitutional to the extent that it did not make provision for the spouses to
such marriages.
86 27 of 1990.
87 81 of 1987.
88 Also see Nkabinde J's statement to this effect in Hassam v Jacobs NO (Case no. CCT 83/08:
unreported judgment of the Constitutional Court delivered on 15 July 2009).
89 Mr Justice Ismail Mahomed was South Africa's first black chief justice; a position which he held
since 1998 until his death in 2000-see
http://www.constitutionalcourt.org.za/site/judges/justiceismailmahomed/index1.html(accessed
on 4 September 2009).
90 At par [24].
169
For the purposes of the dependant's action the decisive issue is not whether the
dependant concerned was or was not lawfully married to the deceased, but whether or
not the deceased was under a legal duty to support the dependant in a relationship
which deserved recognition and protection at common law.
The words "in a relationship which deserved recognition and protection at
common law" do not imply that the common law recognises the validity of such
marriages, and the conclusion that Patel J reached in the Singh case does not
follow from this statement." Consequently, it is submitted that Patel J read too
much into it, for as Sachs J reiterated in Danieis:
Put another way, it is not whether it had been open to the applicant to solemnise her
marriage under the Marriage Act, but whether, in terms of 'common sense and justice'
and the values of our Constitution, the objectives of the Acts would best be furthered by
including or excluding her from the protection provided. The answer, as in Amod, must
be in favour of the interpretation which is consistent with the ordinary meaning of the
word 'spouse', aligns itself with the spirit of the Constitution and furthers the objectives
of the Acts.
It follows therefore, that Patel J's statement to the effect that such "marriages"
"are regarded as lawful marriages in terms of the common law" is incorrect.
It might also be mentioned that the Judge's observation that although purely
religious marriages "lack legal validity [they] are regarded as lawful marriages in
terms of the common law" creates unnecessary confusion, and is in fact
meaningless due to the fact that the common law is not self-enforclnq."
Therefore, even if Patel J was correct in stating that such "marriages" are lawful
in terms of the common law, this "validity" alone would be meaningless without
91
Indeed, in the Amod case Mahomed CJ (at par [18) - [19)) criticised the Appellate Division's
approach in Suid-Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo 1960 (2) SA
467 (A) in which the surviving spouse was required to prove that her customary marriage was
lawful at common law in order to enforce her claim for loss of support.
92
Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) at par [3).
170
the applicable legislation to give effect to it and hence to make the common law
enforceable.
A similar sentiment can be expressed regarding a statement that Patel J made
two paragraphs later where the learned Judge stated that "[t]he court in coming
to the conclusion which it did whilst recognizing the common law marriage did not
declare it to be legally valid.,,93 Juxtaposed with his earlier observation." it
appears as if these statements contradict one another as on the one hand
"religious marriages" are described as being "lawful marriages in terms of the
common law" while two paragraphs later these "lawful marriages" are described
as being "recogniz[ed] ... [without being] legally valid.,,95 It is submitted that these
statements are inaccurate and that they cause unnecessary obfuscation.
With respect, another misstatement of the law occurs where Patel J asserts that:
Our Courts have, since the advent of the Constitution, consistently come to the aid of
spouses and their children if the marriage was one under the common law ifthere was a
need, especially if unfairness would result by the application of the strict letter of the
law ... 96
Once again, it appears as if Patel J erred in this regard as he appeared to lose
sight of the fact that a marriage which is potentially polygamous cannot be a
marriage "under the common law."97 At best, the Courts can acknowledge
93 At par [39]. This paragraph is discussed in further detail below.
94 That is to say in par [37].
95
Also see Heaton 2008(b): 459 who points out that even par [37] (quoted above) can be construed
as incorrectly implying that the common law "somehow clothes [religious marriages] with legal
validity."
96 Par [38] emphasis added.
97
See Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality
Intervening) 1999 (4) SA 1319 (SeA) at par [17]- [20l; Ismail v Ismail and Others 2007 (4) SA 557
(E) at 561 (D); Sinclair and Heaton 1996: 158.
171
certain consequences of such a "marriage", or regard it as putative where
approprlate."
Patel j continued as follows:
[In Ryland v Edros]99 ... [t]he Court in coming to the conclusion which it did whilst
recognising the common-law marriage did not declare it to be legally valid.!"
Similarly courts have come to the assistance of dependants in a common-law marriage
where loss of support is claimed (see Amod v Multilateral Motor Vehicle Accidents Fund
(Commission for Gender Equality Intervening) ... The Constitutional Court has upheld the
right of a surviving spouse of a marriage performed according to Muslim rites which had
not been registered, to inherit (see Oaniels v Campbell (supra)) ... In the Oaniels case no
declaration as to the validity of the Muslim marriage was considered.'?'
As seen above, it should be noted that all three cases referred to by Patel j102
involved Islamic marriages that had not been solemnised in accordance with
South African marriage legislation. They therefore involved purely religious
marriages and did not involve the typical cohabitation scenario where the parties
simply live together as man and wife without necessarily being "married" in terms
of religious law or in any other way (in other words a life partnership in the narrow
sense as explained above).
In the light of this fact the learned judge's statement that "whilst recognising the
common-law marriage [the Court in the Ry/and case] did not declare it to be
legally valid" is worth considering in further detail. Firstly, it is submitted that this
statement is misleading as it creates the impression that the Court acknowledged
98
See 2.2.3 below.
99
1997 (2) SA 690 (Cl.
100
Par [39] emphasis and footnote added.
101
Par [40] emphasis and italics added.
102
These cases are Ryland v Edros 1997 (2) SA 690 (C); Amod (Born Peer) v Multilateral Motor
Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) and
Daniels v Campbell NO and Others 2004 (5) SA 331 (CC).
172
the existence of the concept of a "common-law marriage" marriage in South
African law. Instead, the Court in Ryland did no such thing-it merely stated that
recognition could be given to the underlying contractual obligations that existed
between the parties to a de facto monogamous Islamic marriage.103 The basis of
this finding is the fact that an Islamic marriage is viewed as being a contract.l'"
The Court did not therefore "recognise" a "common-law marriage" (in fact, no
reference to this concept is to be found anywhere in Farlam j's judgment), but
instead merely gave effect to the contractual obligations of support flowing from
the Islamic rnarriaqe.l'" With respect, it is therefore submitted that Patel j should
rather have stated that the "[t]he Court in coming to the conclusion which it did
whilst recognising the contractual obligations arising from a de facto
monogamous Islamic 'marriage' did not declare it to be a valid marriage for the
purposes of South African law."
The question that now arises is: What did Patel j perceive a "common-law
marriage" to be? In the light of the preceding discussion it appears as if the
judgment in Singh v Ramparsad blurs the distinction mentioned in the
introductory paragraphs above between (i) a marriage that is concluded in
accordance with or under the common law definition of marriage and (ii) the so-
called "common-law marriage." This much appears from the overlapping use of
the phrases "marriages in terms of the common law", marriage "under the
common law" and "common-law marriage" in consecutive paragraphs in the
judgment. Moreover, even if one accepts the view that Patel j equated these
concepts, it is still difficult to understand what he perceives a "common-law
marriage" to be.
As seen above, the term "common-law marriage" is usually used in the narrow
context of referring to parties who simply "live together" as man and wife without
103 At 707 (F) - 711 (C); Heaton 2008(b): 460.
104 Cronjé and Heaton 2004: 217; Goolam 2002: 61.
105 Cronjé and Heaton 2004: 217; Heaton 2008(b): 460.
173
being "married" in any way.106 However, if one considers that all three cases to
which Patel j referred involved parties to purely religious marriages, it could be
argued-as Heaton 107also points out-that Patel j viewed the term "common-
law marriage" as being limited to a religious marriage that has been concluded in
terms of particular religion and that has not been solemnised in accordance with
the 1961 Marriage Act and is therefore not valid according to South African
law.108 In this context, therefore, the existence of the religious marriage would be
a precondition to Patel j's conception of the "common-law marriage." This
inference is strengthened by the fact that Patel j confined his analysis of the
"common-law marriage" to cases involving purely religious marriages and did not
refer to one single case in which similar recognition had been granted (or
refused)109to life partners who were not "married" to one another in any way (id
est to life partners in the narrow sense). From this discussion it therefore
appears as if Patel j assigned a novel and unique meaning to the concept
"common-law marriaqe."!'?
However, the fact remains that, irrespective of which of the meanings of the term
"common-law marriage" is ascribed to Patel j's judgment, neither of these
interpretations is jurisprudentially sound as the findings in Ryland and Amod
were based on the fact of a contractual duty of support flowing from the Islamic
purely religious marriages entered into between the parties and not on the basis
of the existence or recognition of any "common-law marriage." The inevitable
conclusion is that the learned judge erred in this regard.
106
Hahlo 1975: 34, 35; Heaton 2008(b): 460.
107
2008(b): 460.
108
This point of view is shared by Heaton 2008(b): 460: "What [Pate I Jl had in mind were religious
marriages that lack official recognition." Compare National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs and Others 1999 (3) SA 173 (C) at 183 (G) - (H) where Davis J
differentiated between civil and customary marriages on the one hand and "other forms of life
partnerships such as same sex partnerships, common-law marriages and Muslim and Hindu
marriages" on the other. Despite the fact that Davis J could also be criticised for creating the
impression that South African law recognises the so-called "common law marriage", the judge
maintains a clear distinction between such a "marriage" and "Muslim and Hindu marriages."
109
See for example Volks NO v Robinson 2005 (5) BCLR446 (CC).
110
Also see Heaton 2008(b): 460.
174
2.2.1.5 Conclusion
It is inappropriate both from a historical and a jurisprudential point of view to use
the term "common-law marriage" in order to describe a life partnership in either
the wide or narrow senses. Nevertheless, a preoccupation with this term
unfortunately appears to persist. Regarding the instances where the term has
been employed by our courts, it is submitted that the context used by Sachs J in
Minister of Home Affairs V Fourie'" is the lesser of the two evils. Even so,
unnecessary confusion can be eliminated by avoiding the use of the term
altogether.
2.2.2 The term "concubinage"
The term "concubine" is generally defined to refer to cohabitation between a
woman and a man.112 Over and above the fact that the term does, as Hahlo!"
mentions, "[sound] somehow out-of-date", it prima facie appears to be derogatory
and invites the inference that it refers to a mistress outside of rnarriaqe.!'" to a
secondary wife,115 or that it only caters for heterosexual couples.!"
111
2006 (1) SA 524 (CC) at par (36) as discussed in 2.2.1.4 above.
112
Sinclair (ed) 2001: 308 define the meaning of the word as either "(in polygamous societies) a
secondary wife" or "a woman who cohabits with a man, [especially) (formerly) the mistress of a
king, nobleman, etc ..." Also see Alien 1991: 237; Hahlo 1972: 32l.
113 1985: 36 (note 74).
114
See Sinclair and Heaton 1996: 268 (note 7) and SALRC2006: 11 where the word "mistress" is
discountenanced.
115 See Sinclair (ed) 2001: 308.
116
See for example Van der Vyver and Joubert 1991: 449. On the other hand Thomas 1984: 455 is
of the opinion that the term may be used in order to describe homosexual unions as well as
heterosexual ones. Examples from case law where the term has been used in the sense of a man
and woman who live together "as man and wife" include Schlesinger v Schlesinger 1968 (1) SA
699 (W) at 700 (A) and (E) - (F); Kannemeyer v Gloriosa 1953 (1) SA 580 (W) at 586 (H) - 587 (A);
Van Vuuren v Van Vuuren 1949 (4) SA 749 (D) at 757 (quoting from Harvey v Harvey (1923 NPD
281 at 282)).
175
2.2.3 The terms "de facto marriage" and "putative marriage"
Neither of these terms is suitable for the purpose of describing a life partnership.
To begin with, the reference to the word "marriage" should be avoided for
reasons similar to those outlined in paragraph 2.2.1.1 (triaxial meaning of
"marriage").
As far as the term "de facto marriage" is concerned, there is not a single reported
case in which the South African Courts have used this term with regard to life
partnerships in the narrow sense.!" nor one in which they have they been
prepared to find (as the term in fact implies) that on the facts of the case a
marriage existed between the parties involved in such a life partnership. Indeed,
an analysis of the case law reveals that the Courts have in such instances at best
been prepared to extend certain consequences of marriage to life
partnerships.!"
In South African law the term "putative marriage" (matrimonium putativum) refers
to the specific instance where a void "marriage" is visited with limited legal
consequences despite its invalidity provided that at least one of the parties to the
"marriage" in good faith believed it to be valid.!" The bona fides of (at least one
of) the "spouses" constitutes the raison d'être for the putative marriage in that the
law attempts to avoid the harsh consequences of total invalidity that would
otherwise ensue. The bona fides requirement immediately explains one of the
reasons for avoiding the term "putative marriage" in a life partnership setting, as it
seldom occurs that one (much less both) life partners truly believe that they have
117
In Feldman v Feldman 1949 (3) SA 493 (A) at 501 - 502 the Appellate Division quoted a passage
from the judgment of the Court a quo in which reference was made to a "de facto marriage" but
in casu the term was not used in a cohabitation context but instead to highlight the latter Court's
finding that the marriage between the parties existed only in law (de jure) but not on the facts
(de facto).
118
See for example Gory v Kolver NO 2007 (4) SA 97 (CC); Du Plessis v Road Accident Fund 2004 (1)
SA359 (SCA).
119
Shields v Shields 1959 (4) SA 16 (W) at 23, 24; Zulu v Zulu and Others 2008 (4) SA 12 (D) at 14 (H);
Salomons v Abrams 1991 (4) SA437 (W).
176
validly "married" one anotber.F? In the event of this indeed being the case, such
a union will be a genuine putative marriage and not a life partnership in the
narrow sense.!"
The term "putative marriage" presupposes that the parties participated in a
marriage ceremony of sorts; a fact which again illustrates why the term should
not be used to describe life partnerships in the narrow sense. In addition, doubt
persists as to whether or not the common law requirement that all of the
formalities of such a ceremony have to be complied with in order for the
"marriage" to be putative forms part of our law.122 If it does, this requirement
would once again indicate why the term cannot be used to describe life partners.
A further compelling reason why this term should not be used to describe a life
partnership is that the law attaches limited legal consequences to a putative
marriage that would not apply in the case of a completely invalid marriage. So,
for example, the common law provided that any children born of such a
"marriage" were legitimate,123 and the patrimonial consequences of such a
"marriage" are generally interpreted so as to favour the bona fide "spouse" or,
where both parties were bona fide, so as to give effect to the proprietary
consequences that they had intended to apply to their "marriage.,,124
120 Although this has occurred (see Ex parte L (Also known as A) 1947 (3) SA SO (C) at 54) this would
certainly be the exception rather than the rule.
121 See Sinclair and Heaton 1996: 268 (note 4).
122 See Cronjé and Heaton 2004: 47. This question was left open in the leading case on the matter,
namely Barn v Bhabha 1947 (4) SA 798 (A) at 804,805.
123 See for example Moola v Aulsebrook NO 1983 (1) SA 687 (N) at 690 (D): "The true importance of
the concept of putative marriage lies therefore in the fact that children of such a union are
legitimate with all the legal advantages of legitimate children." Also see Hahlo 1972: 322. In
view of the fact that the Children's Act 38 of 2005 now emphasises the marital status of the
parents instead of describing children as "legitimate" or "illegitimate" (see Heaton 2008(a): 49),
such children will now instead be regarded as being "born of married parents." This issue is
examined below.
124 Hahlo 1972: 322; Visser and Potgieter 1998: 70; Cronjé and Heaton 2004: 47, 48; Sinclair and
Heaton 1996: 408, 409. For further principles underlying the putative marriage, see 2.4.2.1 in
Chapter 6.
177
However, in the case of life partners, the general rule125 is that no legal
consequences attach to their union by operation of law,126and the limited legal
consequences that attach to putative marriages would not apply unless the life
partners (or one of them) could satisfy the requirements for such a "marriage" as
explained earlier.
In the past the distinction between putative marriages and life partners as far as
children were concerned was more pronounced, in the sense that at common law
a child born of a putative marriage was legitimate while a child born to an
unmarried couple was regarded as being illegitimate with only the mother of the
child generally 127holding parental authority over the child.128 As Heaton 129
mentions, subsequent legislation, such as the Children's Status Act130 and the
Natural Fathers of Children Born out of Wedlock Act131 partly codified but in
essence confirmed the common law position as far as unmarried couples were
concerned.132 However, the Children's Act 38 of 2005 has brought about far-
reaching changes to the position of such couples.133 Heaton 134describes the
effect of the Children's Act on the erstwhile position in the following succinct
fashion:
[T]he law still does not treat unmarried and married parents in exactly the same way.
Now, however, the law no longer uses pejorative terms like "illegitimate child" and it
grants the same parental responsibilities and rights to certain unmarried fathers that it
grants to married parents and unmarried mothers.
125
Certain legal consequences can attach if the parties have contracted to this effect, or if a
universal partnership can be proved, or if the developments which have been occasioned by the
judiciary apply. These exceptions to the general rule are explained in Chapter 6 below.
126
SALRC2006: 110, 111. See 1 in Chapter 5 that follows.
127
An application could be brought to the High Court for aspects of parental authority to be
awarded to the unmarried father of the child-see Heaton 2008(a): 65.
128
Heaton 2008(a): 65; Van der Vyver and Joubert 1991: 450; Visser and Potgieter 1998: 200, 20l.
129
2008(a): 65.
130
82 of 1987.
131 86 of 1997.
132
Also see Heaton 2007: 3-9.
133
Heaton 2008(a): 65.
134
2008(a): 49.
178
The current position is that the biological mother of a child born to unmarried
parents automatically acquires full parental responsibilities and rights over her
child,135while the biological father would have to satisfy the requirements of
either section 20 (if the father divorced the child's mother after the child's
conception but before birth) or section 21 (where the father has never been
married to the mother) in order to qualify for the same. In the event of non-
compliance with these provisions and in the absence of a Court order it would
also be possible by virtue of section 22 of the Act for parental responsibilities and
rights to be conferred on such a father by the conclusion of a parental
responsibilities and rights aqreernent.l'" At the time of writing this section of the
Act is however not yet in operation.
In accordance with section 20, a biological father who was married to the mother
of the child at the time of the child's conception or birth or at any time in between
has full parental responsibilities and rights in respect of his children. In terms of
section 21 an unmarried biological father automaticallyl'" acquires full parental
responsibilities and rights if he lives with the mother of the child in a permanent
relationship at the time of the child's birth or if, regardless of whether he has ever
lived with her, he (i) consents or successfully applies to be identified as the father
or has paid any penalty imposed by customary law, and (ii) contributes or has in
good faith attempted to contribute towards the maintenance and upbringing of
the child for a reasonable period of time.138
135
Section 19. In accordance with subsection (3) this rule does not apply to a child who is the
subject of a surrogacy agreement. Subsection (2) creates another exception to this general rule
by stating that in the instance where the biological mother is herself an unmarried child and
where neither she nor the biological father are the guardians of the child, the guardian of the
child's biological mother is also the guardian of the child.
136 Heaton 2008(a): 7l.
137
Heaton 2008(a): 69 - 7l.
138
Section 21(1)(b)(i) - (iii). Louw (2007: 329) is of the opinion that this section of the Act is
ambiguous as it is unclear whether the requirements are listed in the alternative or whether they
are cumulative in the sense that all three are preconditions for the acquisition of full parental
responsibilities and rights. It is submitted that the requirements are cumulative. Three main
reasons can be advanced for this contention: Firstly, the three requirements are listed together
under a sub-heading introduced by the condition "if" which is immediately qualified by the words
"regardless of whether he has lived or is living with the mother." This indicates that the only
179
The discussion above therefore shows that, as far as children are concerned, the
Children's Act of 2005 has definitely narrowed the gap between the common law
consequences of a putative marriage and the position in which unmarried
parents currently find themselves.
Nevertheless, the interaction between the common law consequences of the
putative marriage in as far as they pertain to children and those imposed by the
Children's Act of 2005 becomes an interesting point. In this regard at least two
possibilities present themselves:
(i) The first possibility is premised on the principle that the Children's Act has
removed the categorisation of children as being "legitimate" or
"illegitimate" from our law.139 If this state of affairs is transplanted into the
law regarding putative marriages, this implies that a child born of a
putative marriage is no longer regarded as being "legitimate" in
accordance with the common law qualification but is instead deemed to be
a "child born of married parents." In principle, then, this would imply that
the biological father of such a child would, in terms of section 20 of the
Act, have full parental responsibilities and rights over his child.
(ii) In the alternative, it would be possible to argue-on a very technical
point-that section 20 of the Act does not apply in the case of a putative
marriage. This argument could be based on the fact that section 1 of the
element of the "if" condition which is indeed optional is that of cohabitation and that the three
requirements subsequently listed are therefore not negotiable. Secondly, the requirements are
not separated by the alternative "or." Instead the first two requirements are separated by a
semicolon while the last is separated by "and", leading to the conclusion that all three
requirements are interlinked (also see Heaton 2007: 3-11). Finally, each requirement is vital in
terms of giving effect to the objects of the Act as stated in section 2 which inter alia include
giving effect to the constitutional rights of children (section 2(b)) and "generally, to promote the
protection, development and well-being of children" (section 2(i)). In consequence hereof it
must be agreed with Heaton (2007: 3-11) that the unmarried father must comply with all three
requirements set by section 21(1)(b).
139
Interestingly section 36 the Act still uses the term "child born out of wedlock." This appears to
be an oversight by the Legislature.
180
Children's Act defines "marriage" as one which is "recognised in terms of
South African law or customary law.,,14o If this definition is interpreted as
requiring any marriage to be a valid marriage in terms of South African law
or customary law, it could be argued that, as a putative marriage is a void
marriage (and therefore not valid as per the definition in section 1 of the
Children's Act),141 that a child born of such a "marriage" could not be
regarded as a child born of married parents and that the father of the child
could therefore not be deemed to be a "married father" for the purposes of
section 20 of the Act. As section 20 of the Children's Act would not be
applicable, the next question to arise would be whether section 21 of the
Act (dealing with "unmarried fathers") would apply. As this section
specifically contemplates the scenario where the parents are unmarried
and where no valid marriage has ever existed between them, it would
appear to be wide enough also to include the parties to a putative
marriage within its ambit, as a putative marriage is not a valid marriage. It
follows that it could be argued that section 21 of the Children's Act has
amended the common law position and that the father of a child born of a
putative marriage would also have to comply with its provisions and hence
to have been cohabitating with the mother at the time of the child's birth142
or inter alia to prove that he contributes or has in good faith contributed
towards the maintenance and upbringing of his children before he would
be entitled to exercise full parental rights and responsibilities in respect of
140 The ostensible distinction between "South African law" and "customary law" cannot be
supported as it creates the impression that customary marriages somehow do not form part of
"South African law." Ever since the coming into operation of the Recognition of Customary
Marriages Act 120 of 1998, all customary marriages are equal in status to civil marriages and
certainly form part of "South African law," It is submitted that paragraph (a) of the definition
should rather read "that is recognised as a civil marriage or customary marriage in terms of South
African law,"
141 It could be argued that this interpretation is correct even if the definition in question were not as
stringently formulated-see Satchwell v President of the Republic of South Africa and Another
2002 (6) SA 1 (CC) at par [9] where Madala J held that "[t]here is no definition of the word
'spouse' in the provisions under attack [namely the Judges' Remuneration and Conditions of
Employment Act 88 of 1989 and the Regulations thereto]. In the circumstances the ordinary
wording of the provisions must be taken to refer to a party to a marriage that is recognised as
valid in law and not beyond that."
142 Section 21(1)(a).
181
them. If this argument were to succeed, there would be no difference
between the position of unmarried life partners and "spouses" to a putative
marriage as far as children are concerned.
At least two arguments can be raised to counter the second scenario described
above. The first argument would thwart the contention that a putative marriage
does not qualify as a marriage for the purposes of the section 1 definition in the
Children's Act. This could be done by arguing that, although the putative
marriage is not a valid marriage, the law indeed "recognises" certain of the
consequences of a valid marriage, 143 with the effect that-at least as far as those
specific consequences are concerned-there is no material difference between a
putative marriage and valid one. Indeed, one of those instances is the precise
point at issue, namely where children are involved.l'" The second argument
would tie in with the first and relate to the fact (inter alia) that it would not be in
the best interests of the child born of a putative marriage to alter the position at
common law so as to place that child and his parents in a more adverse position
after the coming into operation of the Act by effectively exposing them to the
harsh consequences of an invalid marriage.
In the light of these arguments, it is submitted that the first possibility is the
correct one, and that the father of a child born of a putative marriage will be
regarded as being a married father in accordance with section 20 of the
Children's Act. In the final analysis, the differentiation between the position of life
partners and that of "spouses" involved in a putative marriage as far as children
are concerned serves further to explain why the term "putative marriage" cannot
be used to describe life partnerships.
143
See Visser and Potgieter 1998: 68: "The law recognizes a putative marriage in order to soften
certain consequences of a marriage which is null and void" (emphasis added) and Moola v
Aulsebrook NO 1983 (1) SA 687 (N) at 690 (A) - (B).
144
See for example Moola v Aulsebrook NO 1983 (1) SA 687 (N) at 690 (D).
182
The chasm that exists between the patrimonial consequences of a putative
marriage and those of a life partnership is another incontrovertible difference
between these two forms of relationship. In the case of the latter group, the
parties are required to regulate these consequences themselves or to rely on
other protection such as the existence of a universal partnership or on the
principles of unjustified enrichrnent.l'" As opposed to the putative marriage, the
law is therefore not concerned with the bona fides of the parties to such a
relationship and does not provide any special protection in this regard
whatsoever. In addition, Hahlo 146 and Sinclair and Heaton 147 submit that the
principles pertaining to the patrimonial consequences of a putative marriage are
wide enough to allow for the bona fide surviving "spouse" to a putative marriage
to inherit intestate in the event of the other "spouse" predeceasing the former
without leaving a valid will. In this regard the legal position regarding life partners
differs once again, as the law currently only appears 148 to permit homosexual
cohabitants to inherit intestate.l'"
2.3 Conclusion-the term "life partnership"
For the purposes of Part 2 of this study, the term "life partnership" will unless
indicated otherwise denote:
In the absence of any alternative statutory framework or domestic
partnerships rubric that provides for such persons to formalise their
relationships:
145 SALRC2006: 110, 111.
146 1985: 115, 116.
147 1996: 409.
148 See 3.4.1 in Chapter 5 below.
149
Gory v Kolver NO 2007 (4) SA 97 (CC); 2007 (3) BCLR 294 (CC). See the discussion in 3.4.1 in
Chapter 5 below.
183
1) Persons who, despite not being prevented by law from entering into
a lawful marriage, are involved in a permanent life partnership
without either:
a) being married:
in terms of the Marriage Act 26 of 1961; or
in terms of the Civil Union Act 17 of 2006; or
in terms of the Recognition of Customary Marriages
Act 120 of 1998; or
b) without having concluded a civil partnership (as opposed to
a marriage) in terms of the Civil Union Act;150
as well as:
2) Persons who, despite not being prevented from entering into a
lawful marriage, are involved in a permanent life partnership without
having participated in any marriage ceremony that has resulted in
a purely religious marriage that is not recognised in terms of any
one of the three Acts listed above.
3. CONCLUSION
In this Chapter it has been established that the term "life partnership" will be used
for this Part (Part 2) of this study. The term has specifically been selected due to
its legal correctness and in order to ensure that it is not confused with the term
"domestic partnership" which term will be utilised when specifically dealing with
the Domestic Partnerships Bill and the rubric in Part 3.
150 17 of 2006.
185
CHAPTER 5:
THE JUDICIAL RECOGNITION OF LIFE PARTNERSHIPS IN
SOUTH AFRICA
1. INTRODUCTION
As seen in the background to Chapter 1, South African family law did notpay much attention to the recognition of relationships outside of civilmarriage in the past. In fact, one could probably agree with the
statement made by Thomas 1 in 1984 when he stated that South African family
law for all intents and purposes chose largely to ignore these relationships, with
hardly any provision being made in terms of regulating them either while they
subsisted or after their terrnination.f In short, none of the invariable
consequences which attached to a valid civil marriage attached to life
partnerships, regardless of whether they existed between persons of the same or
opposite sex. This meant, inter alia, that:
• There was no real "law of life partnerships" that existed as a parallel to
matrimonial law. Instead, what existed was a mere "application of general
rules of law" to the instance of (exclusively heterosexual) cohabttation.?
• The law did not (and in fact still does not) take any interest in, or prescribe
any formalities for entering into or terminating a life partnership so that
1984: 456.
Thomas 1984: 456; Schwellnus 1995: 135.
Hahlo 1972: 321.
186
each partner was free to terminate the life partnership at any time and on
any ground, with no real risk of leqal liability."
• Life partners were not (and are still not) placed under an ex lege reciprocal
duty to support one another.' The absence of this duty during the
existence of the relationship implied that-contrary to the position of a
married couple'v=there was no duty of support which could extend beyond
the termination of the relationship. Consequently:
(i) No claim for maintenance could be instituted once a life partnership
had ended due to separation; and, similarly
(ii) No claim for maintenance could be instituted by the survivor against
the deceased estate of his or her life partner.'
• A further consequence of the lack of an ex lege reciprocal duty of support
during the subsistence of the life partnership was that the surviving
dependent life partner had no right to institute a claim for loss of support
against a third person who wrongfully and culpably injured or killed his or
her life partner."
Van der Vyver and Joubert 1991: 450; Visser and Potgieter 1998: 5. As seen in the first bullet,
liability would only be imposed as a result of the indirect application of general legal principles to
the fact of the life partnership. Therefore liability could follow in the event of a breach of a
contractual undertaking between the parties such as, for example, a breach of promise to marry
or on the basis of a universal partnership (see in general Sepheri v Scan/an 2008 (1) SA 322 (C) at
323 (C) - 337 (E)). Other forms of liability such as liability on the basis of unjustified enrichment
or delictual liability for injurious or contumelious conduct could also follow provided that the
requirements for such actions could be met. In respect of the latter possibility, if an award for
contractual damages on the basis of a breach of promise to marry has been made, this award
must be taken into account for the purposes of determining whether or not it would be
appropriate also to award delictual damages (see Sepheri v Scan/an 2008 (1) SA 322 (C) at 337 (E)
-(I)).
Volks NO v Robinson 2005 (5) BCLR446 (CC) at par [56]; Van der Vyver and Joubert 1991: 450.
6 In the case of a married couple legislation provides that the reciprocal duty of support can in
applicable circumstances be extended beyond divorce (section 7(1) and (2) of the Divorce Act 70
of 1979) and death (the Maintenance of Surviving Spouses Act 27 of 1990).
SALRC2006: 154 and 156.
SALRC2006: 157; Sinclair and Heaton 1996: 284, 285.
187
• The law did not take cognisance of any form of consortium omnis vitae
between life partners. Consequently the rights and obligations attached to
this concept in the case of a valid marriage were not recognised within the
context of life partners. This implied, for example, that the marital privilege
which generally entitles spouses to refuse to testify against one another?
could not apply in the case of life partners."? Furthermore, interference
with the relationship by an outsider could not be visited with delictual
liability.
• Life partners could not inherit intestate from one another." The only way
for a surviving life partner to inherit would be by way of a valid will.
Nevertheless, the intention of the testator or testatrix would always be the
primary criterion so that even a reference to "wife" or "husband" in a will
could be interpreted as referring to a life partner where doing so squares
with the will-maker's lntention."
• As far as proprietary matters were concerned, the common law made no
express provision for life partners to share in each other's property, with
the result, as Schwellnus 13 mentions, that "the normal rules of the
acquisition of property [are] applicable."!" The parties were (and still are)
required to regulate these consequences themselves contractually or to
rely on other protection such as the existence of a universal partnership,
the principles of unjustified enrichment or the law of aqency." While
certain authors have expressed their support for the universal partnership
9
See section 195 of the Criminal Procedure Act 51 of 1977 and section 10 of the Civil Proceedings
Evidence Act 25 of 1965.
10
Sinclair and Heaton 1996: 291.
11
Van der Vyver and Joubert 1991: 450; Schwellnus 1995: 150, 151.
12
Hahlo 1972: 327.
13
2008: N7.
14
Also see Visser and Potgieter 1998: 5; SALRC2006: 159.
15
SALRC2006: 110, 111 and 159; Schwellnus 2008: N7. These possibilities are explained in Chapter
6.
188
in this reqard." it is generally accepted that neither unjustified enrichment
nor the universal partnership are particularly suitable within the context of
family law in general and life partnerships in particular."
• At the termination of a life partnership any property that was acquired
jointly could (and still can), where the parties as joint-owners were unable
to reach an agreement as to division, be divided by Court order by way of
the institution of the actio communi dividundo.18 On the basis of the
rationale underlying this action-namely that a co-owner should generally
not be forced to remain such against his wiIl19-'''[t]he Court has a wide
equitable discretion in making a division of the joint property, having
regard, inter alia, to the particular circumstances, what is most to the
advantage of all the eo-owners and what they prefer.,,2o
• A donation made by one life partner (A) to the other (8) could not (and still
cannot) be reclaimed by A.21
• While the Prescription Act 68 of 1969 provided that the completion of
acquisitive and extinctive prescription between persons who are married
to one another was postponed as long as they remained married,22 the Act
made (and still makes) no similar reference to life partners.
• Contrary to the position of a married couple, the existence of a life
partnership did not (and still does not) ipso facto entitle both partners to
occupy the common home. Therefore, unless the home was registered in
the names of both life partners or unless both of them were party to the
16
See De Bruin and Snyman 1998: 368 et seq.
17
SALRC2006: 110, 111 and 159. These possibilities are discussed in detail in Chapter 6.
18
Schwellnus 2008: N7 and 1995: 148, 149.
19
Robson v Theron 1978 (1) SA 841 (A) at 855 (A).
20
Per Joubert JA in Robson v Theron 1978 (1) SA 841 (A) at 855 (C) - (F). Also see Bennett NO v Le
Roux 1984 (2) SA 134 (ZH) at 136 (B) - (C)-the Court may make any order that is "fair and
equitable in the circumstances."
21 Schwellnus 2008: N7.
22
Per Sinclair and Heaton 1996: 420, 421. See sections 3(1)(b); 8 and 13(l)(c) of Act 68 of 1969.
189
lease agreement, the life partner who was neither the owner nor lessee
had no right to live there.23 The practical effect of this is illustrated by the
case of Sepheri V Scanlan.24 In casu, evidence presented to the Court
established that the plaintiff and the defendant had become engaged
abroad in November 1998, at which time they lived together both in
Helsinki and in Stockholm and pooled their resources." It appears that
throughout the course of their relationship the defendant maintained the
plaintiff and discouraged her from seeking employment, although she was
well qualified to do SO.26The defendant purchased property in Cape Town
in 2002, which was financed by him and registered in his name onlyY
Despite frequent requests to do so, the defendant refused to register her
as a eo-owner of the property, and apparently attempted to avoid the issue
by way of placatory promises that she need not be concerned as the
property was "ours.,,28 By early 2003 both parties had relocated to Cape
Town." They cohabited intermittently during 2003, with the plaintiff
continuing to occupy the property in Cape Town while the defendant was
employed for approximately six months in New Zealand before returning
to Cape Town in November of that year." The defendant then took up
employment in Italy in early 2004; a state of affairs that persisted until the
relationship was terminated in April of the same year." Nevertheless, the
plaintiff continued to occupy the property well beyond the termination of
23
Sinclair and Heaton 1996: 286; SALRC 2006: 159. Although this rule was later mitigated by
domestic violence legislation such as the Prevention of Family Violence Act 133 of 1993 and the
Domestic Violence Act 116 of 1998, these Acts only provided limited relief as they only applied in
instances of domestic violence-over and above the sources already mentioned also see Minister
of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others,
Amici Curiae) 2006 (1) SA 524 (CC)at par [65].
24
2008 (1) SA 332 (C).
25 At 324 (A) - (C) and at 331 (F).
26 See 324 (E) - (F).
27
At 340 (B).
28
See 325 (D) - (E). It also appears as if he had conceded in Court that he had originally intended
to register both himself and the plaintiff as owners but that he had "changed his mind" before
purchasing the property-see 325 (F).
29
At 325 (I) - (J).
30
At 325 (J) - 326 (E).
31
At 326 (I).
190
the relationship. In fact, by the time she instituted action for breach of
promise to marry in 2006 she and the defendant still resided there, leading
to the defendant suing the plaintiff in reconvention for damages for loss of
rent and applying for an eviction order." The plaintiff's defence hereto
was that a universal partnership existed between herself and the
defendant, and that, as a consequence, she was entitled to occupy the
property and could not be deprived of the right to do so by the defendant's
unilateral action." Although the plaintiff was successful in her action for
breach of promise (and could therefore to some extent be compensated
for the fact that she was "a highly qualified person who gave up the
possibilities of lucrative employment to fulfil her obligations under the
enqaqernent")." Davis j held that she was unable to prove that a
universal partnership existed." As a consequence, she was ordered to
vacate the property and to pay damages to the defendant." This case
serves to illustrate that, in the absence of contractual protection, the
misapprehensions under which life partners may labour have no bearing
on the proprietary consequences of their relationship.
Prior to the coming into operation of the Children's Act 38 of 2005 any
child born of an unmarried couple was regarded as being illegitimate with
only the biological mother of that child having parental authority over him
or her?? The biological father could only acquire guardianship or custody
of and access to the child by way of a Court order" and later in terms of
the now-repealed Natural Fathers of Children Born out of Wedlock Act 86
32 At 323 (D) - (F) and 340 (A) - (F).
33 At 323 (F) - (G).
34 Per Davis Jat 336 (A) - (B).
3S At 339 (J).
36 At 340 (H) - (I) and 341 (F) - (H).
37
See for example Edwards v Fleming 1909 TH 232 at 234, 235; Dhanabakium v Subramanian and
Another 1943 AD 160 at 166; Sinclair and Heaton 1996: 287; Van der Vyver and Joubert 1991:
450; Visser and Potgieter 1998: 4; Sinclair 2008(a): 49.
38 Exparte Van Dam 1973 (2) SA 182 (W) at 185 (A) - (D).
191
of 1997.39 The biological father was nevertheless under a legal duty to
maintain his child irrespective of whether or not he was able to exercise
parental authority over him or her.4o
• As far as the law of adoption was concerned, life partners were not
permitted to adopt a child jointly." (As will be seen below this position
was altered in respect of same-sex life partners in Ou Toit and Another v
Minister of Welfare and Population Development and Others.)42
• In limited circumstances life partnerships did sometimes receive express
recognition for the purposes of certain statutes, such as the Insolvency Act
24 of 1936.43 Similar statutory recognition that has been accorded to life
partnerships on an ad hoc basis is discussed in Chapter 6.
• Life partners were not (and still are not) subjected to the constraints
imposed on married couples as far as certain delictual claims are
concerned. Therefore, whereas spouses were precluded by public policy
from instituting the actio iniuriarum against one another, life partners
would not have been prevented from doing the same." Whether this
position should persist is questionable."
39
Section 2(1). According to section 3 of the Children's Status Act 82 of 1987 guardianship of any
child born of a unmarried mother who was under the age of 21 and had not been declared to be
a major vested in the mother's guardian, while the mother herself was the custodian of the child.
A competent Court could however deviate from this general principle. In addition, the Act also
regulated certain aspects pertaining to extra-marital children such as presumption of paternity
(sections 1 and 2), the effects of artificial insemination (section 5) and the status and interests of
an extra-marital child (sections 6 and 7).
40
Van der Vyver and Joubert 1991: 450; Visser and Potgieter 1998: 4.
41
Section 17 of the Child Care Act 74 of 1983; Robinson et a/2009: 43.
42
2003 (2) SA 198 (CC). This case is discussed in detail in 4.1 below.
43
For the purposes of section 21 of the Act which determines the effect of insolvency on the
insolvent's spouse "the word 'spouse' means not only a wife or husband in the legal sense, but
also a wife or husband by virtue of a marriage according to any law or custom, and also a woman
living with a man as his wife or a man living with a woman as her husband, although not married
to one another" (see section 21(13) of the Act).
44
Cv C 1958 (3) SA 547 (SR).
45
Neethling et a/2006: 249 (at note 34); Visser and Potgieter 1998: 104.
192
This brief summary makes it clear that life partnerships received scant legal
recognition in pre-democratic South Africa. The advent of a human rights culture
necessitated a drastic rethinking of the legal position as it stood at 27 April 1994.
However, factors other than human rights also played an important role in this
regard. For example, the need for the law to take cognisance of changing
societal norms as such was pre-empted by Sinclair and Heaton'" when in 1996
they asserted that:
The increase in cohabitation is indicative of changing mores. Cohabitation has come to
be accepted by many people and although the moral and social stigma attached to
cohabitation has not disappeared completely it has diminished substantially. Society is
undergoing drastic transformation. The traditional nuclear family-two heterosexual
parents and their children-is no longer the universal norm.
Furthermore, one of the strongest arguments in favour of providing more
comprehensive recognition for life partners was not necessarily from a human-
rights or constitutional law perspective, but rather one of pure practical reality in
that the socio-economic situation in South Africa, where poverty and
unemployment was (and still is) rife, demanded that unions outside of marriage
be provided with greater protection, particularly upon their termination."
Nevertheless, it goes without saying that the advent of a democratic
constitutional dispensation with specific recognition of the rights to equality,
human dignity, privacy and freedom and security of the person in South Africa
would play the most prominent role as far as life partnerships were concerned.
Interestingly, however, a number of commentators appear to have been of the
opinion that constitutional rights would play a more prominent role in terms of
recognising the right to marry of homosexual persons than in respect of
recognising the fact that the differential treatment between spouses and life
46 1996: 27l.
47 Sinclair and Heaton 1996: 301; Singh 1996: 318.
193
partners was unconstitutional." The net effect of this line of reasoning was that,
once the right to marry of homosexual couples had been confirmed, no form of
non-formalised life partnership (whether heterosexual or homosexual) would be
able to invoke constitutional protection as they had elected not to marry and
therefore could not avail themselves of matrimonial law." This so-called "choice
argument" (see 5 in Chapter 3) will be considered in further detail later in this
Chapter. The right of same-sex couples to marry was however only legally
sanctioned in 2006,50 with the result that, in the intervening period, the Courts,
particularly as seen in Chapter 3 with respect to homosexual life partners, had no
choice but to extend the consequences of marriage to life partners on the basis
of constitutional rights as such."
This Chapter will focus on the piecemeal recognition granted to life partners by
the Courts with a view to highlighting major inconsistencies and distilling
important foundational principles which ought to feature in the legislation drafted
in accordance with the domestic partnership rubric.
2. RECOGNITION BY THE JUDICIARY: LAYING THE FOUNDATION
One of the first post-1994 decisions to deal expressly with the legal
consequences of a life partnership was Langemaat v Minister of Safety and
Security and Others.52 In casu the applicant had been involved in a lesbian
relationship and had been living with her partner for more than a decade. On the
evidence it was clear that the couple shared their financial obligations and that
48
Sinclair and Heaton 1996: 301.
49
Sinclair and Heaton 1996: 299, 300. Although the positive law indicates that the Courts have
supported this line of reasoning (see for example Volks NO v Robinson 2005 (5) BCLR446 (CC) at
par [SS) - (60) and (154); Gory v Kolver NO 2007 (4) SA 97 (CC) at par (29)) the validity of this
approach will be explored throughout this Chapter.
50
By way of the promulgation of the Civil Union Act 17 of 2006.
51
See 3 in Chapter 3.
52
1998 (3) SA 312 (T).
194
they were economically lnterdependent.f The applicant was a captain in the
South African Police Services (SAPS) and, by virtue hereof, was registered as a
member of the SAPS's medical aid scherne.P' In accordance with its rules and
regulations, the scheme permitted any person who was "the legal spouse or
widow or widower or a dependant child" of the member to be registered as a
dependant for the purposes of the scheme." When a formal request to have her
female partner registered as a dependant of the medical aid scheme was denied
on the basis that her partner was not a "spouse" as required by the scheme's
rules and regulations, the applicant applied to the Transvaal Provincial Division of
the High Court" for an order declaring the regulations and the rules made in
terms thereof to be in conflict with the Constitutloni' 58
In delivering his judgment and holding that the scheme's rules and regulations
were unconstitutional, Roux j made a significant remark pertaining to the
recognition of homosexual relationships when he stated that:
I would ignore my experience and knowledge of several same-sex couples who have
lived together for years. The stability and permanence of their relationships is no
different from the many married couples I know. Both types of union are deserving of
respect and protection. If our law does not accord protection to the type of union I am
dealing with, then I suggest it is time it does so. This is how I understand what s 39(2) of
the Constitution has in mind.59
This statement has been referred to with approval in subsequent case law.50
53 At 314 (A) - (B).
54 At 314 (A).
55 At 314 (E) - (I).
56 In consequence of the Renaming of High Courts Act 30 of 2008 this Court is now referred to as
the North Gauteng High Court, Pretoria.
57 Act 108 of 1996 (as it was referred to at the time).
58 At 314 (I) - 315 (C).
59 At 316 (F) - (G).
60 See Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C) at 689 (F) - (G).
195
Judicial recognition has also been given to the fact that a stable homosexual
relationship constitutes a family in a similar way as marriage does. In Farr v
Mutual & Federal Insurance Co Ltd 61 Louw J explained that this would be the
case where such a union evinced a degree of permanence and "resemble[d] for
all intents and purposes" a marriage between husband and wife.62
Statements such as those referred to in Langemaat and in Farr were indicative of
the sentiment prevailing shortly after the coming into operation of the Bill of
Rights.
However, one of the most ground-breaking decisions was yet to appear. Indeed,
as seen in Chapter 3, the case of National Coalition for Gay and Lesbian Equality
v Minister of Home Affairs and Others63 was to set the tone according to which
the law of same-sex life partnerships was to develop in the foreseeable future."
The issue in this case revolved around the constitutionality of section 25(5) of the
Aliens Control Act 65 (since repealed by the Immigration Act 13 of 2002) which
conferred certain benefits on the "spouse or dependent child of a person
permanently and lawfully resident in the Republic" (own emphasis) and hence did
not provide for the same-sex partners of South African citizens to enjoy these
benefits.
Although the repealing of the Aliens Control Act of 1991 implies that the specific
outcome of this case is no longer as relevant today as it was at the time of the
judgment, the case is extremely important in terms of ascertaining the
Constitutional Court's stance regarding the position of homosexual life partners in
61 2000 (3) SA 684 (C).
62
At 689 (G) - (I), referred to with approval in Gory v Kolver NO and Others 2006 (5) SA 145 (T) at
par [19].
63 2000 (2) SA 1 (CC).
64
Wood-Bodley (2008(b): 260) describes this case as "the most useful judgment" of all of those
dealing with the recognition of same-sex life partnerships.
65 96 of 1991.
196
post-1994 South Africa. In this regard, the following key points of Ackermann J's
unanimous judgment deserve special mention:
• It is important to note from the outset that the decision in casu only
extended to conjugal relationships between homosexual life partners."
While it could therefore certainly be argued that section 25(5) also
unjustifiably excluded heterosexual life partners from its ambit, it must be
emphasised that the applicants in this case were all partners in same-sex
life partnerships and that the Court deliberately chose not to express itself
on the issue of heterosexual couples." Having said this, Ackerman J
placed specific emphasis on the fact that the applicants in question were
all partners to stable and committed relationships in terms of which the
partners where "intimate and mutually interdependent.r'" The decision is
therefore limited to the position of same-sex life partners in permanent life
partnerships.
• A further aspect which is of critical importance is that the Court held that it
was not reasonably possible to interpret the word "spouse" as used in
section 25(5) so as to include a same-sex life partner.69 Although it was
an acknowledged principle of statutory interpretation that a
constitutionally-aligned interpretation should be preferred over an
unconstitutional one, this principle was limited by the fact that the
legislative text had to be reasonably capable of bearing the
constitutionally-aligned rneanlnq." The ordinary use of the word (as a
"husband" or "wife" or as "a married person") coupled with the context
within which the word was used in section 25(5) and in the Act's section 1
definition of "marriage" did not permit such a broader interpretation."
66 Par [60).
67 Par [60) and [87).
68 At par [17).
69 At par [23).
70 At par [24).
71 At par [25) and [26).
197
This implied, contrary to the respondents' contention, that it was not
possible to decide the matter without adjudicating on the constitutional
validity of the provision in question."
• With reference to the constitutionality of section 25(5), Ackermann j held
that section 25(5) potentially breached both the rights of equality and
dignity. As these rights were closely related, the possible infringement of
both could be dealt with sirnultaneousty."
In this regard, two key observations were made:
(i) Ackerman j emphasised the fact that the law as it stood at the time
only recognised heterosexual marriage and did not provide
adequate recognition of or protection for same-sex relationships
and the parties thereto. In consequence hereof, although it was
unnecessary to deal with the position of unmarried heterosexual
couples, the Court acknowledged that there was a difference
between the position of heterosexual couples who elected not to
marry and their homosexual counterparts, who, due to the fact that
they were not permitted to marry one another, only had recourse to
the life partnership as a means of entering into conjugal
relationships that were aligned with their sexual orlentatron."
(ii) In addition, the Court held that the argument raised by the
respondents to the effect that, albeit that the law possibly
differentiated it did not unfairly discriminate on the basis of marital
status as homosexual persons were not prevented from marrying
72 At par [26].
73
At par [31].
74
At par [38].
198
persons of the opposite sex, was "true only as a meaningless
abstracnon.v"
In the light of these observations it was clear that discrimination was not a
phenomenon that could be understood or determined by dismantling it and
evaluating each component thereof in isolation." It was therefore not
possible in casu to determine whether or not discrimination necessarily
occurred either on the basis of marital status or on the basis of sexual
orientation. Instead, when properly considered within the broader context
of the experiences of those affected by it coupled with the fact that the law
did not provide any recognition to conjugal relationships other than
heterosexual marriage, it was clear that the discrimination encountered in
section 25(5) overlapped in that it discriminated on both of these
qrounds."
The prerequisite of marriage before the benefit is available points to that
element of the discrimination concerned with marital status, while the fact that
no such benefit is available to gays and lesbians engaged in the only form of
conjugal relationship open to them in harmony with their sexual orientation
represents discrimination on the grounds of sexual orientation_78
In consequence, such discrimination was presumed to be unfair in
accordance with section 9(5) of the Constitution."
In determining whether or not the discrimination was unfair, the Court held
that the crucial factor was to determine what the impact of the
discrimination was on the complainants individually or as members of an
75 At paragraph [38].
76 At par [35].
77 Par [40] in summarising par [33]- [39].
78 At par [40].
79 At par [40].
199
affected group.80 In this regard Ackermann J confirmed the finding in
National Coalition for Gay and Lesbian Equality v Minister of Justice and
Others 81(the so-called "sodomy case")82 that gays were a permanent
minority in society. According to Ackermann J, the same could be said of
lesbians, who had also been (and still were) subject to similar patterns of
disadvantage and whose relationships had generally not been respected
by South African society in the same way as heterosexual relationships
had been. The dignity and self-worth of persons involved in homosexual
relationships was therefore undermined by pre-existing and continuing
stereotyping and discrimination, leading to the conclusion that gays and
lesbians clearly constituted a vulnerable group in society; a factor which
increased the possibility of the discrimination being unfair.83
The stereotyping of gays and lesbians had often been perpetuated by
focussing exclusively on the sexuality of such persons and by using the
argument that couples to such relationships were not capable of
procreation. Regarding the former argument, Ackermann J emphasised
that the crime of sodomy had recently been abolished'" and that the law
had never criminalised consensual sexual activity between adult women."
With reference to the procreation argument the Court made a ground-
breaking finding with reference to family law in general and gay rights in
particular by holding that this argument was demeaning to those who
could not or who elected not to have sexual relations or to have children,
and consequently that "from a legal and constitutional point of view
procreative potential is not a defining characteristic of conjugal
80 At par [41].
81
1999 (1) SA 6 (CC).
82
See 3 in Chapter 3.
83
At par [42]- [44].
84
See the reference to the so-called "sodomy case" in the main text and in 3 in Chapter 3 above.
85
At par [49].
200
relationships.r" As such it could not be concluded that the concept of
"family" fell to be determined with reference to the ability to procreate."
Furthermore, when viewed against the factual background comprising
inter alia their ability to establish88 a consortium omnis vitae (which, as
seen in Chapter 289 constitutes the "essence and objective hallmark" of
marriage) and to establish a family, it was clear that section 25(5) of the
Aliens Control Act consequently "reinforced harmful and hurtful
stereotypesr'" of gay and lesbian persons and prevented them from
protecting their "family and family life.,,91
The argument that section 25(5) should remain intact in order to protect
the institution of marriage also could not stand as (i) although it was
acknowledged that the institution of marriage had to be protected, such
protection could not take place in such a way as to violate the
constitutional rights of homosexual life partners." and (ii) there was no
rational connection between the government's interest in protecting
heterosexual family life and the exclusion of gays and lesbians from the
ambit of section 25(5): Granting the same benefits to gays and lesbians
would in no way undermine the protection of heterosexual marriage and
family life.93 Furthermore, this argument did not constitute a valid
countervailing interest in order to justify the discrimination occasioned by
section 25(5).94
86 At par [51).
87 At par [51) read with par [52).
88
The relevance of the distinction between the ability to establish a consortium omnis vitae and the
full recognition thereof will be seen later in this Chapter (see 3.7 below) and in Part 3 of this
study.
89 See 4 in Chapter 2.
90 At par (49).
91 At par [53).
92 At par [55).
93 At par [56).
94 At par [59).
201
On the basis of the above findings, Ackermann J concluded that section
25(5) violated the equality and dignity rights of, and therefore unfairly
discriminated against, the parties to permanent same-sex life
partnerships."
The second part of the judgment involved the decision as to which
remedial action was appropriate in order to address the unconstitutionality
of section 25(5), and, more specifically, whether the provision should be
declared invalid in toto or whether the remedy of "reading in" (in other
words introducing words into a statute) should instead be adopted." In
this regard Ackermann J made the very important statement (that will be
revisited later in this Chapter) that whatever remedy opted for by the Court
would not necessarily be the end of the matter as the Legislature was
entitled
within constitutional limits, to amend the remedy, whether by re-enacting equal
benefits, further extending benefits, reducing them, amending them, 'fine-
tuning' them or abolishing them. Thus they can exercise final control over the
nature and extent of the benefits.97
The Court concluded that the words "or partner, in a permanent same-sex
life partnership" were to be read in after the word "spouse" in section
25(5). A life partnership that was indeed of a permanent nature would
demonstrate "an established intention of the parties to cohabit with one
another permanently";" a question of fact which,99 in the words of
95 At par [57).
96 At paragraphs [1) and [62)- [63).
97
At paragraph [76) (footnotes omitted). This statement is of particular importance regarding the
continued recognition (or otherwise) of the ad hoc extensions despite the validation of same-sex
marriage-see 3.4.1.1.3 below.
98 Par [86).
99
See the discussion of the requirement of permanence as a parameter of the life partnership in
the narrow sense in 2.1.2.2 in Chapter 4 above.
202
Ackermann J, needed to be determined by taking all relevant facts into
account, including but not limited to:
the respective ages of the partners;
the duration of the partnership;
whether the partners took part in a ceremony manifesting their intention to
enter into a permanent partnership, what the nature of that ceremony was and
who attended it;
how the partnership is viewed by the relations and friends of the partners;
whether the partners share a common abode;
whether the partners own or lease the common abode jointly;
whether and to what extent the partners share responsibility for living expenses
and the upkeep of the joint home;
whether and to what extent one partner provides financial support for the
other;
whether and to what extent the partners have made provision for one another
in relation to medical, pension and related benefits;
whether there is a partnership agreement and what its contents are; and
whether and to what extent the partners have made provision in their wills for
one another.1oo
Although this list is fairly extensive, the Court emphasised that no single
fact would be mdlspensable."'"
In closing, it is important to note the Court's stance on the effect of the
order of unconstitutionality and the reading in of the words mentioned
above. In this respect it was held that the order would be effective
immediately but that in the interest of legal certainty it would not have
retrospective application. To order otherwise would, according to the
Court, create unnecessary uncertainty where the provisions of the Act had
100
At par [88] (bulleting introduced for the sake of readability).
101 At par [88].
203
properly been applied to homosexual life partners in the past. Couples in
such a position would furthermore not be prejudiced in any way as they
would also now be free to obtain relief under the new wording of the
Act.102
As stated above, the decision in National Coalition for Gay and Lesbian Equality
v Minister of Home Affairs was the first decision by the Constitutional Court in
which the legal position of same-sex life partners was comprehensively dealt
with, and, as such, it set the benchmark regarding the recognition and
development of jurisprudence relating to life partnerships in general and
homosexual life partnerships in particular. The fact that the concept of "family" in
South Africa was no longer limited to the traditional family was further entrenched
by a judgment following six months after the National Coalition v Minister of
Home Affairs case in which the Constitutional Court reconfirmed the diverse
nature of this concept and its significance for the parties involved therein while
emphasising that a specific family form should not be entrenched in such a way
as to derogate from another.l'"
From this platform the South African Courts have set out to develop further the
legal position of life partners in South Africa. These developments will be
discussed in the paragraphs that follow.
102 At par [89].
103
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of
Hame Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA
936 (CC); 2000 (8) BCLR837 (CC) at para [31]. This case (inter alia) was referred to with approval
in Du Toit and Another v Minister of Welfare and Population Development and Others 2003 (2) SA
198 (CC) at par [19] where Skweyiya AJ stated that: "The institutions of marriage and family are
important social pillars that provide for security, support and companionship between members
of our society and play a pivotal role in the rearing of children. However, we must approach the
issues in the present matter on the basis that family life as contemplated by the Constitution can
be provided in different ways and that legal conceptions of the family and what constitutes
family life should change as social practices and traditions change."
204
3. TRACING THE RECOGNITION OF TWO FUNDAMENTAL
CHARACTERISTICS OF MARRIAGE WITHIN THE CONTEXT OF NON-
FORMALISED INTERPERSONAL RELATIONSHIPS: THE
RECIPROCAL DUTY OF SUPPORT AND CONSORTIUM OMNIS VITAE
3.1 Introduction
One of the invariable consequences of the conclusion of a valid marriage (or a
civil partnership) is that the parties thereto are obliged by operation of (common)
law104 to support one another'" according to their respective means and
needs 106 (and with due regard to factors such as their social positlon.'!"
lifestyle 108 and the cost of living) 109 by providing one another with the necessary
food, clothing, lodging, medical and dental care and other necessities of life.11o
In Barlow V Barlow McGregor J described the basis of the rule thus.!"
104 Voet 25.3.8; Beaumont v Beaumont 1987 (1) SA 967 (A) at 974 (F) - (G) and 996 (C); Dawood and
Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs
and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (1) SA 997 (C) at
1038 (H); Chinamora v Angwa Furnishers (Pvt) Ltd and Another (Attorney-General Intervening)
1998 (2) SA 432 (lS) at 443 (H) - (I).
105 Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA) at par [124];
Minister of Home Affairs v Fourie (Doctors for Life International and Others, Amici Curiae);Lesbian
and Gay Equality Project and Others v Minister of Home Affairs 2006 (1) SA 524 (CC)at par [65];
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of
Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA
936 (CC) (2000 (8) BCLR837) at par [31]; Du Plessis v Road Accident Fund 2004 (1) SA359 (SCA) at
par [12]; Jodaiken v Jodaiken 1978 (1) SA 784 (W) at 788 (H); Shanahan v Shanahan (1907) 28
N.L.R. 15 at 16.
106 Gildenhuys v Transvaal Hindu Educational Council 1938 WLO 260 at 263, 264. One of the basic
principles that underlie this duty at common law is that the spouse requiring maintenance must
be in need thereof and that the other spouse must be in a position to provide it-see Salem v
Chief Immigration Officer, Zimbabwe, and Another 1995 (4) SA 280 (lS) at 283 (C); Van lyl 2005:
3.
107 Gildenhuys v Transvaal Hindu Educational Council 1938 WLO 260 at 264.
108 Van lyl 2005: 3.
109 Cronjé and Heaton 2004: 52.
110 Voet 25.3.8; Zwiegelaar v Zwiegelaar 2001 (1) SA 1208 (SCA) at par [13]; Van Aswegen v Van
Aswegen 2006 (5) SA 221 (SE) at par [28]; Ismael v Smith 2000 (2) SA 526 (C) at 528 (H) - (I);
Plotkin v Western Assurance Co Ltd and Another 1955 (2) SA 385 (W) at 394 (H) - 395 (A); SALRC
2006: 134; Hahlo 1985: 134, 135; Sinclair and Heaton 1996: 443; Cronjé and Heaton 2004: 52.
111 1920 OPO 73.
20S
The basis of the rule of law regarding alimentatie is "het recht der natuur" and the law
hereon operates ratione pietatis. And although "natural right" may be a somewhat
elusive expression, the reference to pietas may possibly enjoin an enquiry into the state
and mode of life of the parties concerned.112
As is evident from the preceding remark, the scope of the duty must be
determined on an ad hoc basis and is clearly not confined to the bare necessities
just rnentioned.U''
In Minister of Home Affairs and Another V Fourie and Another (Doctors for Life
International and Others, Amici Curieeï'" (hereafter "Minister of Home Affairs V
Fourie") the Constitutional Court described the reciprocal duty of support as "an
integral part of the marriage contract [that] has immense value not only to the
partners themselves but to their families and also to the broader community."
This duty is based on the existence of a valid marriage (or civil partnership) and
consequently obtains stante matrimonio.115 As a corollary hereof, the duty is in
principle terminated once the marriage or civil partnership comes to an end.116
Various statutes, such as the Divorce Act 117 and the Maintenance of Surviving
Spouses Act 118 however have the effect of potentially extending the duty of
support beyond the termination of the marriage and, as will be seen below, the
latter statute in particular has already played a more than significant role in
recent jurisprudence regarding relationships other than civil marnaqe.!"
112 At 75.
113 Young v Coleman 1956 (4) SA 213 (N) at 218 (C) - (E); Hahlo 1975: 113; Van Zyl 2005: 3 and 14.
114 2006 (1) SA 524 (CC) at par [65].
115 Salem v Chief Immigration Officer, Zimbabwe, and Another 1995 (4) SA 280 (ZS) at 283 (C).
116 Zwiegelaar v Zwiegelaar 2001 (1) SA 1208 (SCA) at par [12]; Khan v Khan 2005 (2) SA 272 (T) at
par [6.3]; Pil/ay v Pil/ay 2004 (4) SA 81 (SE) at 86 (B); Jerrard v Jerrard 1992 (1) SA 426 (T) at 428
(A); Rubenstein v Rubenstein 1992 (2) SA 709 (T) at 711 (G) - (H); Qoza v Qoza 1989 (4) SA 838
(CK)at 843 (D); Kader v Kader 1972 (3) SA 203 (RA) at 204 (A); Vale v Vale 1966 (1) SA 541 (SR) at
543 (A) - (G).
117 70 of 1979.
118 27 of 1990.
119 See for example Volks NO v Robinson 2005 (5) BCLR446 (CC); Danie/s v Campbel/ NO and Others
2004 (5) SA 331 (CC); Hassan v Jacobs NO (Case no. CCT 83/08: unreported judgment of the
206
In the discussion that follows a number of judicial developments regarding this
duty will be discussed.
3.2 Breaking the mould: Recognising a reciprocal duty of support in
same-sex life partnerships prior to the validation of same-sex
marriage
3.2.1 The Langemaat case revisited
The acknowledgment of the existence of a reciprocal duty of support in unions
other than civil marriages commenced in 1998 with the Langemaat 120decision
referred to in 2 above. One of the core issues in this case was therefore whether
the relationship between the parties gave rise to a duty of support between the
life partners.!" In granting the application, the Transvaal Provincial Division 122
made the significant remark that "[p]arties to a same-sex union, which has
existed for years in a common home, must surely owe a duty of support, in all
senses, to each other."123 The South African Law Reform Commission states
that the Langemaat case altered the legal position in that jurisdiction by
extending the common law duty of support to include homosexual couples, and
summarises the effect of the case as:
The Court found that a same-sex couple who had lived together in an intimate and
stable relationship for many years owed a duty of support to each other, although it
seems that this is a prima facie right only.124
Constitutional Court delivered on 15 July 2009); KambuIe v The Master and Others 2007 (3) SA
403 (E).
120 1998 (3) SA 312 (T).
121 At 315 (G); Wildenboer 2000: 59.
122
Now the North Gauteng High Court, Pretoria (see the Renaming of High Courts Act 30 of 2008).
123 At 316 (H).
124
2006: 135 (footnotes omitted, italics added).
207
Firstly, if one overlooks the unwieldy use of the words "duty" and "right" in this
sentence, this statement creates the impression that the Commission was of the
opinion that the duty of support was an obligation that existed at face value
(prima facie) "only." If this is the point that the Commission was trying to make, it
is submitted that this statement reflects neither the legal position nor the finding
in Langemaat correctly. Two comments can be made for the purposes of
illustration:
• It appears as if the Commission used the word "only" in an attempt to
differentiate between the duty of support that exists in a valid marriage
and the one found to exist in the Langemaat case between same-sex
couples and attempted to accentuate the view that the latter duty is
somehow less robust than the former. This, however, is not completely
true.
Regarding the duty of support between same-sex couples, Roux J
delineated the crucial requirement behind such a duty, namely that the
parties to such a union must have cohabited for a noteworthy period of
time. This requirement could at best indicate that the law differentiates
between marriage and life partnerships in the sense that marriage
instantly creates the duty while life partners need to have cohabited for a
significant period of time before the duty will be recognised. This would
imply that within the context of life partnerships the existence of such a
duty is a question of fact, as was the case in Ripoll-Dausa v Middleton NO
and Others125 where a lack of factual evidence precluded the core finding
that the same-sex union was permanent. This much is acknowledged.
Classifying such a duty as a "prima facie right only" however does not take
the matter any further as it may be argued that any duty of support is
merely prima facie in nature and falls to be determined with reference to
the facts of the matter at hand. For example, the existence of a duty of
125
2005 (3) SA 141 (C) at 154 (C) - (F).
208
support between spouses to a marriage is technically also only of a prima
facie nature, as evidence may, for instance, be adduced that disproves the
very existence of the marriage or that proves that other foundational
elements of such a duty (namely a need for maintenance and the ability to
provide it) are absent. Considered in this light it becomes clear that the
reality that the duty created by marriage is instantaneous does not alter
the principle that, as with the life partnership, the existence of the duty is a
question of fact. Therefore, it is submitted that the Law Reform
Commission's statement that the Langemaat decision created a "prima
facie right only" in the case of same-sex life partners appears somewhat
misleading as there is no difference between the prima facie nature of the
duty of support recognised in Langemaat and that created by marriaqe.!"
• As an outflow of the foregoing observation, the Commission's statement
also appears mistakenly to conflate the existence of the duty with the
enforcement thereof on outsiders (in this instance the right to have a
dependant registered with the medical aid fund). If one scrutinises the
relevant passage of the Langemaat case to which the Commission refers
as authority for its subrnisston.!" it appears as if Roux J, after disposing of
the doubt surrounding the applicant's locus standi, was of the opinion that
126 The same observation can be made regarding the submission made by Wildenboer (2000: 59, 60)
where she claims that married couples are treated differently to same-sex couples as "[i]n effect,
the court held that a [same-sex life partner] must be a factual and a legal dependant before he or
she will qualify as a dependant who can be registered in terms of the medical scheme." This
argument loses sight of the fact that a distinction must be maintained between (i) the existence
(or otherwise) of the duty of support and (ii) the right to enforce such a duty on outsiders. In
addition, the very existence of any duty of support (even in the case of spouses to a valid
marriage) is both a "factual and [a] legal" question, and, in this sense, life partners are not
treated differently to married couples. Once that duty has been found to exist, the second part
of the process then involves the exercising of the fund's discretion in terms of membership.
127 316 (D). Paragraphs (C) - (D) on this page read as follows: "It was argued that the applicant in
any event would never succeed in having Miss Myburgh registered as a dependant. This
submission questions her locus standi to bring the application. There is certainly something to be
said for the suggestion that the Constitution has resurrected the actio popularis. Whatever, I
believe the applicant has a prima facie right to register Miss Myburgh as a dependant. If
reference is had, for example, to Ford v Allan (supra), Motan and Another v Joosub 1930 AD 61,
Waterson v Mayberry 1934 TPD 210 and In re Estate Visser 1948 (3) SA 1129 (Cl, the principles
certainly are not clear as to who is under a duty to maintain ..."
209
she had a prima facie right to register her life partner as a dependant.
This does not follow from the prima facie nature of the duty of support that
existed between the same-sex couple, but instead flows from the prima
facie right to enforce on outsiders a duty that has been found to exist inter
partes (and which inter partes is therefore no longer prima facie in nature).
The existence of the duty and the enforcement thereof are therefore both
prima facie concepts that need to be determined separately. To illustrate
this notion, the fact that a reciprocal duty of support exists between the
spouses to a valid marriage does not automatically imply that one spouse
can without more be registered as the other's dependant in a medical aid
scheme. A married couple applying for registration of one of them as the
dependant of the other would consequently only have a prima facie right
to do so as the decision as to whether or not the registration would be
successful would depend on the facts of the case, the rules of
membership (and any provisos thereto)128and the proper exercising of a
discretion after the merits of the application had been considered by the
relevant functionary of the medical fund. Viewed from this perspective, it
becomes clear that if it appears from the facts of the matter that a duty of
support indeed exists between a same-sex couple, this does not imply that
they can necessarily enforce that duty on outsiders. This is so because,
once again, the latter depends on factors extraneous to the duty itself,
such as the discretion of the chairperson of the medical aid fund.
It is consequently submitted that the Commission's summary of the finding in
Langemaat is made out of its correct context. What the Court found was that a
duty of support existed between all same-sex couples who lived together
permanently, as a result of which the applicant had a prima facie right to register
her same-sex life partner as her dependant with Palmed. Therefore a correct
128 In casu regulation 30(2)(b)(ii) provided two major provisos to membership for spouses, namely (i)
that in the case of polygynous customary marriages only the first wife and children born to her as
a result of this marriage would qualify as dependants, and (ii) that the benefits conferred on a
widow or widower by this regulation would be forfeited by him or her upon remarriage.
210
assessment of the law in the light of Langemaat is that while the duty of support
exists on the facts, the right to enforce the duty is prima facie irrespective of
whether the parties are married, or are same-sex life partners.
Although this discussion focuses on the impact of the Langemaat decision as far
as the judicial recognition of a duty of support between cohabitants is concerned,
it must be noted that the thrust of the decision in Langemaat was codified in 1999
with the promulgation of the Medical Schemes Act 131 of 1998 which includes a
"partner" as a "dependant"!" and prohibits a medical scheme which
discriminates unfairly on grounds such as sexual orientation from being
registered as such.13o However, it is important to make one final observation
regarding the perceived impact of the Langemaat decision immediately after the
judgment was delivered. In this regard Wildenboer131 asserts that in the light of
Langemaat married couples are treated differently to same-sex couples as "[i]n
effect, the court held that a [same-sex life partner] must be a factual and a legal
dependant before he or she will qualify as a dependant who can be registered in
terms of the medical scheme." According to her132 this situation furthermore
implies that spouses to a civil marriage need not prove anything other than that
129 Section 1.
130 Section 24. See Schwellnus 2008: N20A.
131 2000: 60.
132 See page 60 where Wildenboer opines that "[s]pouses in a marital relationship still do not have
to prove anything but marriage to enjoy medical aid benefits, while the court introduced two
requirements with which a same-sex couple will have to comply" (emphasis added). This
comment is worth analysing further as the question arises as to what exactly Wildenboer regards
these "two requirements" as being. Wildenboer opines that the question as to whether the
union is "stable and permanent" is answered "by proving that the relationship has existed for
some time, and also by proving that one party requires financial assistance and the other party is
able to provide it." It appears as if these are the two requirements which she has in mind, as in
the sentence that follows the one quoted she alleges that "[t]he same criteria should apply to
married couples" (emphasis added). The first aspect of the stable and permanence "test" is self-
evident and deserves no further comment. The second aspect is however confusing as, firstly,
the need and ability to provide maintenance in no way assists in determining whether such a
union is "stable and permanent." Secondly, the need and ability to provide maintenance is a
core requirement for the existence of any duty of support and therefore does not constitute an
additional requirement that only applies to same-sex couples. It is submitted that the correct
approach is to state that the Court in Langemaat required two things namely (i) that the same-
sex coupled lived together or cohabited, and (ii) that they had done so for a significant period of
time.
211
they are married,133while same-sex life partners are required to prove that their
union is "stable and permanent."
It is submitted that this argument loses sight of the fact that, as explained above,
a distinction must be maintained between the existence (or otherwise) of the duty
of support inter partes and the right to enforce such a duty on outsiders. In
addition, as seen above, the very existence of any duty of support (even in the
case of spouses to a valid marriage) is both a "factual and [a] legal" question,
and, in this sense, life partners are not treated differently to married couples.
Once that duty has been found to exist, the second part of the process then
involves the exercising of the fund's discretion in terms of eligibility for coverage.
In terms of this second aspect, it may be true that differentiation occurs in that life
partners would have to prove that they have lived together for some period of
time, whereas married couples would not need to do so but would be eligible
imrnediatety.!" At first glance, this differentiation appears to be problematic.
However closer analysis reveals that this is not the case. The reason for making
this assertion is that the finding of unconstitutionality in Langemaat removed the
barrier that prevented a medical aid fund such as Palmed from extending its
benefits to same-sex couples. This development paved the way for same-sex
life partners in future to overcome the "duration" requirement by simply providing
proof (for example, in the form of a written contractual undertaking) that they had
indeed undertaken mutual duties of support. In this sense, homosexual life
partners would not in any way be treated differently to their married counterparts,
as the latter would also in any event be required to furnish proof of something
(their marriage) before one of them could be eligible for registration as a
dependant of the other. It therefore becomes clear that the fears expressed by
Wildenboer may not be as acute as they first appear and that the extension of
civil marriage to homosexual couples was not necessarily the only way for such
133
Also see Robinson v Volks NO 2004 (6) SA 288 (C) at 298 (E) - (F).
134
See Longemoot at 316 (H) as well as the preceding note but one regarding Wildenboer's
interpretation of the criteria set by the Longemaat decision.
212
couples to circumvent "the differentiation in the regulation and rule" in order to
enjoy the medical aid benefits to which heterosexual spouses were entitled by
virtue of marriage.
Nevertheless, as noted above, the differentiation between married couples and
life partners (regardless of whether they are heterosexual or homosexual) has
been removed by the Medical Schemes ACt.135 This Act, which was an important
consequence of the Langemaat cecrston.!" is discussed in more detail in
Chapter 6.
In conclusion, the major relevance of the Langemaat decision for South African
family law can be summarised into three key points: First, the case was one of
the first reported cases expressly to deal with the position of same-sex life
partners; second, the Court took the first step towards recognising the existence
of a reciprocal duty of support between same-couples who lived together on a
permanent basis; and third the decision facilitated legislative intervention 137
regarding medical aid schemes. Having said this, it must be remembered that
the Langemaat judgment was delivered by a single judge in a provincial division
of the High Court. As a consequence the decision is, at best, binding in that
jurisdiction only 138 and, moreover, not binding on higher CourtS.139
3.2.2 The Satchwell judgments
More explicit authority as far as the recognition of a reciprocal duty of support
between same-sex life partners is provided by the case of Satchwell v President
135 131 of 1998.
136 See Schwellnus 2008: N20A.
137 See Chapter 6.
138 See for example Cronjé and Heaton (1999: 61) who, writing the year after the Langemaat
decision was delivered, mentioned that it was uncertain whether the judgment would be
followed by other Courts in future.
139 See Smith and Robinson 2008(a): 383 (at note 39).
213
of the Republic of South Africa.14o In casu Judge Satchwell of the Transvaal
Provincial Division of the High Court challenged the constitutionality of the
Judges' Remuneration and Conditions of Employment Act141 and attendant
regulations 142 which conferred benefits on the "surviving spouse" of a deceased
Judge and therefore did not permit the Judge's same-sex life partner to be
eligible for the same. The Constitutional Court held, as a point of departure, that
the word "spouse" could not-as had earlier been found in the National Coalition
for Gay and Lesbian Equality v Minister of Home Affairs case-be interpreted so
as to provide for same-sex or heterosexual life partners.l'" Although both of
these groups were undoubtedly excluded by the provision in question, Madala J
further (and, it is submitted, correctly) emphasised that the issue of heterosexual
life partners was not properly before the Court and therefore that, contrary to the
respondents' submissions.!" the position of such couples was not at issue.!" In
addition, heterosexual couples were able to marry one another leading to
"different legal and factual issues" arising that were "inappropriate" for the Court
to consider.!" The only issue which consequently had to be decided was
whether the Act discriminated unfairly against same-sex life partners. In
confirming the High Court's finding of unconstitutionality, Madala J however
emphasised that the Constitutional Court's finding was limited to same-sex
couples who had, on the facts, undertaken to support one another as "[t]he
Constitution cannot impose obligations towards partners where those partners
themselves have failed to undertake such obliqatlons."!" To this end, the words
"or partner, in a permanent same-sex life partnership in which the parties have
140 2002 (6) SA 1 (CC).
141
88 of 1989. Sections 8 and 9 of the Act were challenged.
142
Regulations 9(2)(b) and 9(3)(a) of the Regulations in respect of Judges Administrative Recesses,
Leave, Transport and Allowances in respect of Transport, Travelling and Subsistence (as per
Madala J in par [3] of the judgment).
143 Par [9].
144
Counsel for the respondents had argued that a confirmation of the High Court's order (see
Satchwell v President of the Republic of South Africa and Another 2001 (12) BCLR1284 (T)) would
discriminate against heterosexual couples as the High Court had extended the benefits conferred
by Act 88 of 1989 to same-sex couples only-see par [15] of the judgment.
145
Par [16] and [33].
146
Par [16].
147
Par [24].
214
undertaken reciprocal duties of support" were ordered to be read into the statute
and its regulations after the word "spouse" in order to remedy the
unconstitutionality.l'"
When one compares Langemaat with Satchwell it appears that two different
approaches present themselves: In the former case it appears as if Roux j
assumed by virtue of the fact that they had lived together with some degree of
permanence, that life partners owed each other such a duty."" while in Satchwell
it appears as if the duty of support would only be acknowledged once the
existence thereof was proved. In other words, according to Langemaat, same-
sex cohabitants would (as in the case of spouses to a valid marriage) be
presumed to be legally-obligated to support one another, while according to
Satchwell they would need to prove that they had indeed undertaken such a duty
before being entitled to the benefits enjoyed by their married counterparts.
It is therefore submitted that the Satchwell case confirmed the fact that the
existence of a reciprocal duty of support was not an automatic consequence of a
same-sex union between life partners who had lived together for a substantial
period of time, but that the parties thereto must specifically have undertaken to
support one another. Such an undertaking could, however, be inferred from the
facts of a specific case."? Having said this, it is interesting to note that the Court
in Satchwell was not prepared to commit itself as to whether or not the applicant
and her lesbian partner had in fact undertaken reciprocal duties of support, but
instead found that while it was "probable" that they had done so, the question
was not relevant to the matter at hand as "the applicant's challenge [was] to the
legislation.,,151 This conclusion is intriguing in light of the fact that the Court on
two occasions stated that the issue in casu was whether the applicant Judge's
148 Par [37].
149 At 316 (H).
150 Par [25]. See also Du Plessis v Road Accident Fund 2004 (1) SA 359 (SeA) discussed in 3.2.3
below.
151 Par [25].
215
partner should be entitled to the benefits conferred by the Act.152 It is submitted
that this issue could simply not, bearing the high premium placed on the
existence of a duty of support throughout the judgment in mind, 153 be resolved
without first finding that the applicant and her partner had indeed undertaken to
support one another, as the very question as to whether or not the Act was
unconstitutional had to be determined with reference to the relationship between
the applicant and her life partner. This submission is strengthened by Madala J's
finding 154 that the legislation discriminated against "persons such as the
applicant": The legislation could only discriminate against a person "such as the
applicant" if the existence of a reciprocal duty of support between the partners
had indeed been established from the outset.l'"
The judgment delivered by the Constitutional Court in 2002 was however not the
end of the road for Judge Satchwell and her partner as a peculiar state of affairs
necessitated a sequel to this decision which is also of great relevance for this
study. Before discussing the sequel it is necessary to highlight one further
aspect of the first Satchwell case (henceforth referred to as "Satchwell (1)"). As
may be recalled from the discussion above, the respondents in Satchwell (1)
argued that by extending the benefits traditionally reserved for spouses to same-
sex couples only (as per the judgment of the Court a quo), the Judges'
Remuneration and Conditions of Employment Act 88 of 1989 would still
discriminate against heterosexual unmarried couples.l'" The respondents further
152
Par [9] which states that: "At issue in this case is the question whether the claim by the applicant
that Ms Camellev should be entitled to the benefits enjoyed by the spouses of Judges under the
Act should be sustained ...n (emphasis added) and par [14] which reads: "The challenged
provisions, the applicant contended, violated her right to equality in terms of s 9 of the
Constitution because they denied her and Ms Camellev certain specified benefits that are
generally afforded to Judges and their spouses ..." (emphasis added).
153
See par [24] and [34] in particular. Also see J and Another v Director General, Department of
Home Affairs and Others 2003 (5) SA 621 (CC) at par [24] where the existence of a duty of
support was described as "an essential element" of the Satchwel/ case.
154
Emphasis added.
155
Also see footnote 85 in Sachs J's minority judgment in Volks NO v Robinson 2005 (5) BCLR446
(CC) where the Judge expresses the opinion that the need to establish the existence of such a
duty where the State was involved was "particularly strong."
156
Par [15] of the judgment.
216
contended that such a limited extension would not accord with the intention of the
Legislature as gleaned from a Bill that had been published in the Government
Gazette the year before the Constitutional Court's judgment which apparently
extended the benefits to both heterosexual and homosexual partners who had
registered their relationships with the relevant state functionary.l'" Without
elaborating on this point, Madala J found that the Court could not take
cognisance of the content of a Bill in determining an appropriate remedy for the
situation at hand.158
To return to the discussion of the sequel, a rather strange state of affairs
prompted the applicant in Satchwell (1J to launch an application for direct access
to the Constitutional Court one year later. This application-in the identically-
cited case of Satchwell v President of the Republic of South Africa 159 (hereinafter
referred to as "Satchwell (2)")-stemmed from the fact that, despite the relief
granted to the applicant and her partner in Satchwell (1J, the Judges'
Remuneration and Conditions of Employment Act 88 of 1989 had been repealed
and replaced as from 22 November 2001 by the Judges' Remuneration and
Conditions of Employment Act 47 of 2001. The regulations relevant to the 1989
Act had similarly been superseded by new regulations as of 5 July 2002. The
problem that arose was that the new 2001 Act-as had been the case under the
1989 Act-limited the benefits conferred by it to the spouses of Judges and
157 Par [28]. Section 4(d) of the Judicial Officers Amendment Bi//72 of 2001 proposed the insertion
of a definition of "partner" into Act 88 of 1989 that would be defined as "a partner, whether in a
heterosexual or a same sex relationship, which is intended to be a lasting relationship as is the
case with a marriage relationship and which relationship is, for purposes of this Act, registered as
such with the Director-General: Justice and Constitutional Development in terms of the
regulations made under section 12." The word "partner" would then, according to sections 11,
12 and 13 of the Bill, be inserted into sections 8, 9 and 10 of the Act respectively. The
constitutionality of section 10 of Act 88 of 1989 was never raised in the Satchwell case. The Bill is
available at
http://search.sabinet.co.za/WebZ/legi docs/bills/bills01/B072-2001.pdf?sessionid=01-53675-
65485531&format=F&dbname=btracker (accessed on 26 November 2008).
158 Par [28].
159 2003 (4) SA 266 (CC).
217
therefore once again excluded homosexual life partners 160 from its ambit; a
situation that led Q'Regan J to conclude that the applicant and her life partner
had gained no "effective relief' from the decision in Satchwell (1).161
If one bears in mind that the 2001 Act had already come into operation on 20
November 2001, it becomes evident that Satchwell (1) had, rather bizarrely, been
decided on the basis of legislation that had already been repealed even before
the hearing in the Constitutional Court had cornrnenced.l'" Contrary to what
Q'Regan J stated in Satchwell (2), the applicant and her partner had not been
denied "effective relief' by virtue of the decision in Satchwell (1), but had in fact
obtained no relief whatsoever, or, in the alternative, had obtained "relief" that was
utterly meaningless. Unfortunately the decision in Satchwell (2) offers no
explanation as to how this state of affairs could present itself in the highest court
in South Africa.163 It is however ironic that while the Court in Satchwell (1) was, it
is submitted correctly, not prepared to consider a Bill for the purposes of
ascertaining the intention of the Legislature, the Court was in fact in the process
of deciding the entire matter on the basis of legislation that no longer existed!
Nevertheless, the Court in Satchwell (2) was prepared to grant the application for
direct access to the Court on the basis, inter alia, that no factual differences
presented themselves in casu and that the issues raised had already been
traversed by the earlier Satchwell decislons.l'" The Court furthermore found that
as the differences between the relevant provisions and regulations of the 1989
and 2001 Acts were negligible, the latter Act also unfairly discriminated against
160
It goes without saying that heterosexual life partners were similarly excluded by the "new" Act,
but, as the matter in casu was restricted to the position of same-sex couples, the position of their
heterosexual counterparts was not at issue.
161 Par [2).
162
Satchwel/ (1) was heard on 26 February 2002 and judgment was delivered on 25 July 2002.
163
It appears that neither the Court nor the litigants in Satchwell (1) were ever informed of the fact
that the legislation in question had been repealed. This becomes evident from judgment in
Satchwell (2) where it was reported that the Chief Justice wrote a letter informing the parties of
this development subsequent to the judgment in Satchwell (1). It is astounding to think that
such an oversight could occur at the highest level of constitutional litigation, particularly as the
Act had been repealed even before the hearing in Satchwell (1) had commenced.
164 Par [7).
218
permanent same-sex life partners who had undertaken mutual duties of
support.l'" Accordingly, the Court ordered that the omission of the words "or
partner, in a permanent same-sex life partnership in which the parties have
undertaken reciprocal duties of support" after the word "spouse" in both the 2001
Act and the attendant regulations was unconstitutional, and that these words
were henceforth to be read into the legislation in question.l'"
In conclusion it is worth mentioning that the 2001 Act was amended on 1
November 2003 by the Judicial Officers (Amendment of Conditions of Service)
Act.167 The latter Act introduced a definition of "partner" that provided for "only
one person with whom a Constitutional Court judge or judge, who is not legally
married, is involved in a permanent heterosexual or same-sex life partnership" in
terms of which reciprocal duties of support had been undertaken and which had
been registered with the relevant state functionary.l'" It is however interesting to
note that the preamble 169 to the amending legislation notes that this amendment
was occasioned in order to "bring the provisions relating to benefits accruing to
spouses and heterosexual or same-sex life partners of judges in line with a
decision of the Constitutional Court.?"? This statement is technically not correct
in that the Satchwell decisions were not concerned with heterosexual couples at
all. Indeed, the Court had specifically elected not to express any opinion on the
position of these couples.
In the final analysis the Satchwell judgments lead to the conclusion that a
reciprocal duty of support is not created merely because two persons live
together as heterosexual or homosexual partners. Such a duty must be
undertaken by the partners either expressly or tacitly, with the result that the
165 Par [8]- [12].
166 Par [13] and [14].
167 28 of 2003.
168 Section l.
169
See Smith and Robinson 2008(a): 364, 365 for the relevance of preambles in interpreting
legislation.
170 Emphasis added.
219
existence thereof may if necessary be inferred from the facts of the case in
question.
3.2.3 Further implications of the contractual duty of support: The Du
Plessis case
The next case of importance as far as the reciprocal duty of support between life
partners is concerned, is the case of Du Plessis v Raad Accident Fund.171 In this
case, the appellant (0) and his male partner (E) had been involved in an intimate
relationship for just over a decade when E was killed in a motor vehicle accident
in 1999.172 From the outset it was clear that 0 and E had lived together and
supported one another financially throughout the duration of their union. The
parties had made provision for one another as heirs in their respective wills, and,
moreover, after 0 was medically boarded in 1994 (leading to a substantial
decrease in his' income and concomitant ability to contribute towards the joint
household) convincing evidence was adduced to support the contention that E
had assumed the role of chief breadwinner until his death.173 Regarding the
seriousness of their union, the parties had "solemnised" their "marriage" in a
ceremony held in 1990 and it was clear on the evidence provided that the parties
would have validly married one another if the law had permitted them to do SO.174
The facts summarised above provide the backdrop to the major issue in this
case, namely whether the Road Accident Fund (as surrogate wrongdoer)175was
liable to compensate 0 for the loss of support due to E's death at the hands of
171 2004 (1) SA359 (SeA).
172 Par [1] and [4].
173 Par [4].
174 Par [3].
175
Klopper 2000: 21 explains this principle in the following succinct terms: "[T]he basis of claims for
the injury or death of a person resulting from the unlawful and negligent driving of a motor
vehicle (third party claims) is delict. It involves the statutory displacement of liability away from
the wrongdoer to a statutorily created fund (the RAF [Road Accident Fund]); provided that the
requirements for liability as set out in the RAF Act of 1996 ... are fully met. Apart from the
displacement of liability, actual liability remains largely based on common law principles"
(emphasis added and footnotes omitted).
220
the wrongdoer. A prerequisite for the Fund's surrogate liability is that the
wrongdoer must be liable in delict at common law.176 Therefore, if the wrongdoer
is not liable to compensate the claimant at common law, this automatically
implies that the Fund cannot be held liable either. The crisp issue 177 in this case
was whether the common-law action for loss of support of a breadwinner could
be extended so as to compensate a same-sex surviving life partner for the loss
suffered as a result of the death of his or her breadwinner due to the unlawful
and negligent driving of a motor vehlcle.!"
In its most basic form, the action for loss of support (also referred to as the
"dependant's action") traditionally enabled a wife to claim patrimonial loss 179 from
a third party who wrongfully killed or injured her husband."? In order to sustain
such an action, the common law prescribed that the duty of support must have
arisen by operation of law and that a contractual duty of support would therefore
be insufficient to found such a clairn.l'" According to Neethling et al 182 the
rationale behind this requirement is ostensibly that the net of liability would
potentially be cast too wide if a contractual duty of support could as a matter of
course be enforced against outsiders.l'"
176
See section 19(a) of Act 56 of 1996; Klopper 2000: 2.
177
A further issue that arose was whether or not the Fund was liable to compensate D for funeral
expenses attendant to E's death. This issue is however not relevant for the purposes of this
Chapter.
178 At par [1).
179
The claim for damages is limited to actual patrimonial loss suffered and does not include a claim
for loss of consortium omnis vitae-see Neethling et a12006: 256; Hahlo 1985: 145.
180
Although the action is instituted by the dependant in his or her own name for wrongful and
culpable conduct towards the breadwinner, the delict is committed against the dependant-see
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 837 (H) - 838 (A); Santam Bpk v Henery
1999 (3) SA 421 (SCA) at 429 (G) - (J); Brooks v Minister of Safety and Security 2008 (2) SA 397 (C)
at par (23), (24) and (28); Neethling et a12006: 256.
181
Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657 at 666;
Nkabinde v SA Motor General Insurance Co Ltd 1961 (1) SA 302 (N) at 304 (A) - (F); Sinclair and
Heaton 1996: 285; Neethling et a12006: 259; Klopper 2000: 32.
182 2006: 259.
183
The potential effect of a contractual duty of support on outsiders is considered in the discussion
of Volks NO v Robinson 2005 (5) BCLR446 (CC)-see 3.3.1.2 below.
221
In writing for a unanimous Court, Cloete JA confirmed that over the years this
common law position had been developed by the Courts to provide for a
dependant husband to claim for patrimonial loss sustained by him both for the
death of his wife 184 or for injury to her185 and for a divorcée who was by Court
order entitled to maintenance to claim for the loss of support occasioned by the
death of her ex-husband.l'" Perhaps even more significantly, the duty had also
been extended beyond the realm of civil marriages to make provision for the
surviving party to a "marriage" concluded "in accordance with a recognised and
accepted faith such as Islam" to claim for loss of support as an extension of the
contractual duty of support owed to her by virtue of her now-defunct
"marriaqe."!"
In order successfully to institute the dependant's action, Cloete JA confirmed that
the most recent jurisprudence (referred to above) had prescribed two
requirements, namely (i) the existence of a duty of support that was legally-
enforceable between the parties; 188 and (ii) that the dependant's right to such
support had, with reference to the boni mores of society, to be worthy of being
protected so as to found an action for patrimonial loss against the wronqdoer.l'"
184
Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657 at 663 - 665.
185
See Abbot v Bergman 1922 AD 53 at 56 where De Villiers JA stated: "As in the case of the death
of a wife, our law is, however, silent whether a husband can recover from a person who has
through culpa injured his wife, though not fatally. But no reason can be suggested why a
husband should not be allowed to recover the actual pecuniary loss sustained by him under
these circumstances. If he is allowed to recover the loss sustained by him through the death of
his wife, he must also be allowed to recover when the injuries are not fatal. For, in principle, no
distinction can be drawn between the two cases."
186
Santam Bpk v Henery 1999 (3) SA421 (SCA).
187
Amod v Multilateral Motar Vehicle Accidents Fund (Commission for Gender Equality Intervening)
1999 (4) SA 1319 (SCA). It is important to note that the Court did not validate Islamic
marriages-see 2.2.1.4 in Chapter 4 (cf Neethling et a/2006: 258 (at note 45)).
188
Santam Bpk v Henery 1999 (3) SA 421 (SCA) at 427 (E) - (G) read with Amod v Multilateral Motor
Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) at
par (12).
189
Santam Bpk v Henery 1999 (3) SA 421 (SCA) at 427 (G) read with Amod v Multilateral Motor
Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) at
par (12).
222
The Court's finding regarding the first requirement is of particular relevance for
this study. In casu, Cloete JA held that while it was true that for many years the
recognition of a reciprocal duty of support had been confined to the institution of
heterosexual civil marriage, the Constitutional Court had already taken
cognisance of the instance of same-sex conjugal relationships as "another form
of life partnership'J'" and in a subsequent judgment also specifically stated that
the existence of a duty of support in such relationships could, with reference to
the circumstances involved, be inferred on the facts of a particular case.l'" If this
line of reasoning was applied to the facts of the matter at hand, Cloete JA was of
the opinion that the relationship between E and 0 enabled such an inference to
be drawn even more readily than on the facts of the precedent in which this
approach was originally adopted.192 Consequently, the Court found that E and 0
had tacitly bound themselves to mutually support one another and that a legally-
enforceable contractual duty had thus been created in terms of which E was
bound to maintain 0 as his dependant.l'"
As far as the second requirement was concerned, Cloete JA found that the
extension of the common law dependant's action had to be adjudicated in the
light of the boni mores of society, which, in turn, had to be informed by the values
enshrined in the Constltutionv" Regarding the plaintiff's claim, the values of
equality and human dignity were relevant and, as was the case in National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs, were closely
related to one another in casu.195 Furthermore, drawing from the finding of the
Constitutional Court in Satchwell (1)196 the Court found that it was logical to
assume that where the common law-in much the same way as the legislation
190 Par [12] in referring to National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1 (CC)at par [35].
191 Par [13] with reference to Satchwell v President of the Republic of South Africa and Another 2002
(6) SA 1 (CC) at par [25] (discussed above).
192 Par [14].
193 Par [14]- [16]. The relevance of this contractual duty will be revisited when the case of Volks NO
v Robinson 2005 (5) BCLR446 (CC) is discussed (see 3.3 below).
194 Par [18].
195 Par [17]- [19] and par [22].
196 2002 (6) SA 1 (CC). This case and its findings are discussed in detail in 3.2.2 above.
223
had in Satchwell (1)-excluded same-sex life partners who had undertaken
reciprocal duties of support in permanent cohabitation relationships that were
otherwise comparable to heterosexual marriages, that that would constitute
unfair discrimination as wel1.197 In addition, Cloete JA held that it would be
"untenable" to contend that the limitation clause as contained in section 36 of the
Constitution would be able to justify the continued exclusion of same-sex
dependants.l'" After a concise yet comprehensive comparative analysis of
developments relating to homosexual couples in other jurisdictions, Cloete JA
concluded that the contractual duty that obliged E to support D was indeed
worthy of protection so as to comply with the second requirement elucidated
aoove.l'"
A final important issue that fell to be adjudicated was whether the judiciary was
the appropriate forum by which the extension sought by the appellant was to be
occasioned. In this regard Cloete JA held that, despite the fact that care should
be taken not to lose sight of the fact that the Legislature was generally better
equipped to facilitate major legal reform, recent jurisprudence200 and
constitutional tmperatlves'?' highlighted the fact that the Courts were required to
ensure that the common law kept abreast of the needs of a changing society and
that the Courts were enjoined to occasion such developments where they would
be incremental in nature.202 As the appellant's claim was precisely such an
incremental development, Cloete JA concluded that the Court of first instance
197 Par (24) and (25).
198 Par (27).
199 Par (33).
200
Notably, as far as the development of the common law was concerned, the cases of Santam Bpk
v Henery 1999 (3) SA 421 (SCA) and Amod v Multilateral Motor Vehicle Accidents Fund
(Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA); and, concerning judicial
developments to discriminatory statutes (as well as references to examples of other statutes that
specifically provided for cohabitants), the cases of National Coalition for Gay and Lesbian Equality
v Minister of Home Affairs 2000 (2) SA 1 (CC); Satchwell v President of the Republic of South
Africa and Another 2002 (6) SA 1 (CC); Du Toit v Minister of Welfare and Population Development
and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC); and J and
Another v Director General, Department of Home Affairs and Others 2003 (5) SA 621 (CC).
201
Particularly section 39(2) read with section 173 of the Constitution.
202
Par (36) and (37).
224
had erred in finding that it was the Legislature's prerogative to decide whether
and to what extent the dependant's action was to be developed.203
In conclusion, Cloete JA held that while this judgment was in no way applicable
to heterosexual unmarried couples "or to any other relationship", a surviving
same-sex partner in a permanent union that compared in other respects to a
marriage was entitled to institute the dependant's action where the deceased
partner had been bound to support the survivor by virtue of a contractual
undertaking to that effect.204
3.2.4 Conclusion
It is submitted that the Du Plessis judgment takes matters further than the
Satchwell decision for the simple reason that in the former case the Court was
prepared to make the express finding that a duty of support had indeed been
undertaken by the parties to the relationship.i'" On the other hand, as seen
above, while the final outcome of Satchwell (1) cannot be faulted (apart for the
fact that the Court was delivering a judgment on the basis of legislation that no
longer existed) the Court in that case was merely prepared to conclude that it
was "probable" that the applicant and her partner had undertaken mutually to
support one another. In fact, it is submitted that the Court in Satchwell (1)
contradicted itself in that, despite finding that the existence of a duty of support
between same-sex life partners could be inferred on the facts of the matter at
hand, the Court (quite unexpectedly) found that whether or not this was actually
done did not need to be considered in casu. As explained above, this aspect of
the finding is difficult to understand and it is submitted that the Court erred in this
regard, as a finding that it was not only "probable" but that such a duty had in fact
existed was vital for the purposes of the judgment given. In fact, it may even be
argued that in the absence of such a finding, the applicant would not be able to
203 Par (34).
204 Par (43).
205 Par (16).
225
prove that she had a sufficient interest in the case and that her locus standi may
consequently have been questionable.
Nevertheless, reading Satchwell (1) alongside the judgment in Du Plessis
emphasises the following key aspects regarding the reciprocal duty of support in
respect of same-sex life partners: (i) that a reciprocal duty can be inferred on the
facts of a particular case,206(ii) that such a duty is not an automatic consequence
of cohabitation, but that evidence is required to substantiate the fact that the
parties to a permanent relationship indeed undertook such a duty, (iii) once this is
proved, that such a contractual duty is legally enforceable, and (iv) that the
infringement by an outsider of such a duty could be regarded as a wrongful act
and is therefore actionable by the partner so wronged. Cognisance must be
taken of these findings for the purposes of domestic partnerships legislation.
3.3 Heterosexual life partners and the reciprocal duty of support-Volks
NO v Robinson 2005 (5) BCLR 446 (CC)
The decisions analysed in paragraph 3.2 were confined to the recognition of a
reciprocal duty of support between same-sex life partners and, as was stated in
the conclusion to that discussion, the current legal position recognises the
possibility of inferring such a duty in the light of the circumstances of each
particular case. Unfortunately a dearth of case law regarding the position of
opposite sex life partners exists as the Constitutional Court has only expressed
itself regarding the possible recognition of such a duty within the context of such
partners in one reported case. The case in question is the somewhat
controversial matter of Volks NO v Robinson.207
In this case (S) was a male attorney based in Cape Town who had been
predeceased by his wife in 1981 and had entered into a "permanent life
206
SALRC 2006: 136.
207
2005 (5) BCLR 446 (CC).
226
partnership" with a woman (R) four years later; a union that existed for a period
of 16 years until S's death in 2001. Although it is unclear whether they had lived
together as from the commencement of their relationship in 1985, it is clear from
the facts summarised by the majority decision of the Constitutional Court (per
Skweyiya J), that the parties had lived together in a flat as from 1989 until the
time of S's death; a period therefore of some 13 of the 16 years for which their
relationship subsisted.208
The facts of the case indicated that S and R's relationship was a typical example
of the classic cohabitation relationship which is often described as "living together
as man and wife." As seen above, Sand R had jointly occupied a flat until the
deceased's death, after which R had continued to reside there for another year.
R had never been employed permanently and had never received a substantial
or regular income, but S had supported her financially by paying for household
necessities, by "depositing money into her account whenever she needed it", by
registering her as his dependant with his medical aid scheme,209 and by
providing for her as a beneficiary in his will.21o R had reciprocated by contributing
towards general expenses and by nursing and caring for S who was bi-polar and
manic depressrve.ê" The parties were regarded as a couple by their numerous
mutual acquaintances and often attended work functions together. By the same
token, S's three children born of his marriage also appear to have accepted R in
a similar vein as she had on a prior occasion accompanied him on one of his
208 In the light of this state of affairs, it appears as if Skweyiya J's description of the union being a
"permanent life partnership" as from 1985 (see par [3]) seems technically incorrect as the parties
only appear to have cohabited on a permanent basis as from 1989 (compare Mokgoro and
O'Regan JJ at par [100) and the decision of the Court a quo [Robinson and Another v Volks NO
and Others 2004 (6) SA 288 (Cl) at 290 (E) - (G) where it is stated that the parties had lived
together since 1985). Nevertheless, it must have been clear to both Courts that the parties had
lived together as man and wife for a more than substantial period of time and that a "permanent
life partnership" had without doubt existed.
209 Par (5).
210 Par (7).
211 Par (5) read with par (6).
227
annual visits to the United States where all three of S's children resided with their
respective families.212
After S's death, R attempted to institute a claim for maintenance from S's
deceased estate in terms of the Maintenance of Surviving Spouses Act 27 of
1990.
As an extension of the reciprocal duty of support that exists between the spouses
to a valid marriage,213 the Maintenance of Surviving Spouses Act entitles the
"survivor" to a "marriage" that is terminated by the death of one of the spouses
after 1 July 1990 to institute a claim for maintenance against the deceased estate
to the extent to which the survivor's "own means and earnings" are insufficient.214
The claim so instituted is however limited to the survivor's "reasonable
maintenance needs" for the remainder of his or her life or until he or she
remarries.i" The Act defines the concept "own means"?" and provides a fairly
comprehensive method for determining the survivor's "reasonable maintenance
needs."217
212 Par [6].
213 See par [39] of Skweyiya J's judgment.
214 For a comprehensive discussion of the background to the Act, see Sonnekus 1990: 491 et seq.
215 Section 2(1) of the Act (emphasis added) states the following: "If a marriage is dissolved by death
after the commencement of this Act the survivor shall have a claim against the estate of the
deceased spouse for the provision of his reasonable maintenance needs until his death or
remarriage in so far as he is not able to provide therefor from his own means and earnings."
216 According to section lof the Act, this "includes any money or property or other financial benefit
accruing to the survivor in terms of the matrimonial property law or the law of succession or
otherwise at the death of the deceased spouse."
217 Section 3 of the Act states that: "In the determination of the reasonable maintenance needs of
the survivor, the following factors shall be taken into account in addition to any other factor
which should be taken into account:
(a) The amount in the estate of the deceased spouse available for distribution to heirs and
legatees;
(b) the existing and expected means, earning capacity, financial needs and obligations of
the survivor and the subsistence of the marriage; and
(c) the standard of living of the survivor during the subsistence of the marriage and his age
at the death of the deceased spouse."
228
The problem faced by R as far as the Act was concerned, was its definition of
"survivor", which is defined as a "surviving spouse in a marriage dissolved by
death.,,218 Consequently, when R instituted this claim, it was-quite correctly on
a literal reading of the Act-rejected by the executor of the estate on the basis
that R was never married to S and therefore could not qualify as a "spouse" for
the purpose of the relevant statute.219
Consequently, R launched an application in the Cape High Court declaring her to
be a "survivor" for the purpose of the Act or, in the alternative, challenging the
constitutionality thereof in that the Act's references to "marriage", "spouse" and
"survivor" did not provide for surviving life partners and hence did not entitle such
persons to benefit in terms of the Act; a situation which allegedly violated the
rights to equality and dignity as contained in the Constitution, 1996. The
application was opposed by the executor of S's estate, who argued inter alia that
the deceased had specifically chosen not to marry R and that granting the order
sought by her would undermine the autonomous choices made by the deceased
during his lifetime. Nonetheless, so the executor argued, even if the Act was
held to discriminate against R, such discrimination was either not unfair or, in the
alternative, could be justified by the so-called "limitation clause" as contained in
section 36 of the Constitution.22o R attempted to refute the executor's "choice
argument" by contending that throughout the existence of the relationship she
was prepared to marry the deceased; that various criteria pointed to the fact that
she should be entitled to maintenance despite not having been married to the
deceased;221 that even if the deceased had disposed of his property in any way
he saw fit, the Act would nevertheless have entitled her to maintenance if the
parties had been married; indeed, counsel for R contended, one of the chief aims
218 Emphasis added.
219 Par (9).
220 Par (17).
221 Par (18). In this regard, the criteria that R urged the Court to take cognisance of were: "(a) our
commitment to a shared household; (b) the financial and other dependence between us; (c) the
duration of our relationship; (d) the roles we played in our relationship in relation to each other."
229
of the Act was precisely to provide for "vulnerable widows or persons in her
position" for whom inadequate provision had been made.222
The Cape High Court held that the Maintenance of Surviving Spouses Act
discriminated unfairly on the basis of equality and human dignity and ordered, in
broad terms, (i) that the definition of "survivor" was to be read as if it included the
words "and includes the surviving partner of a life partnership"; and (ii) that two
new definitions namely "spouse" and "marriage" were henceforth to be read into
the Act, both of which were to be defined as including "a permanent life
partnership.,,223 In accordance with apposite constitutional principles, the High
Court's finding was referred to the Constitutional Court for confirmation.
It is interesting and highly relevant to note that in oral arguments placed before
the Constitutional Court, counsel for both the first and second respondents (R
and the Women's Legal Centre Trust respectively) were prepared to limit the
scope of words to be read into the statute to life partnerships in which a mutual
duty of support existed between the life partners.F"
The material parts of the Constitutional Court's majority judgment commenced
with an investigation into the "history and purpose" of Act 27 of 1990. In this
regard, Skweyiya J emphasised that the Act had been promulgated in
consequence of a combination of the Appellate Division's (at the time the highest
Court in South Africa) refusal in the 1960's to allow a surviving spouse to institute
a claim for maintenance from her deceased husband's estate, coupled with a
recommendation by the South African Law Commission (as it was then known) in
1987 to the effect that such a claim be provided ex lege by way of specific
legislation.225 As such, when promulgated, the Act did not entitle the survivor to
a benefit from the State or from any outsiders, but instead had the effect of
222 Par [19].
223
At 302 (E) - (I) of the Court a quo's judgment.
224 Par [28].
225
Par [36] and [37].
230
extending the reciprocal duty of support beyond the death of one of the spouses
to a marriage in order to eliminate the "perceived unfairness" of the cessation of
such an obligation. In so doing, Skweyiya j pointed out that the Act
"seeks to regulate the consequences of marriage and speaks predominantly to
those who wish to be married.,,226
In dealing with the respondents' argument that the Act could be interpreted in
such a way as to provide the relief sought (an argument which, if successful,
would have the advantage of circumventing the constitutional issue), Skweyiya j
held that section 2(1) of the Act could not be interpreted in such a manner as the
terms "marriage" and "spouse" had limited, specific meanings which could not be
altered.227 The Act could accordingly not be interpreted so as to include
"permanent life partnerships.t="
Considering the question as to whether the Act violated the equality rights of
permanent life partners, Skweyiya j was prepared to accept that it discriminated
on the basis of marital status. As a listed ground, it followed that such
discrimination was presumed to be unfair.229
In this regard, the crux of Skweyiya j's finding was that, as marriage was
constitutionally and internationally recognised as an "important social institution",
it was not unfair for the law to distinguish between those who were married and
those who were not and, where apposite, to benefit the former group.230
Moreover, the position of unmarried couples could not be equated with spouses
to a marriage as, inter alia, the institution of marriage immediately occasioned ex
lege rights and obligations which were imposed irrespective of the wishes of the
parties, while the same was not true in the case of unmarried cohabitants. In
point of fact, Skweyiya j held, the maintenance obligation imposed by the Act
226 Par [39].
227 Par [40]- [42].
228 Par [45].
229 Par [50].
230 Par [51]- [54].
231
was a component (and indeed an extension) of one of these consequences,
namely the reciprocal duty of support.ê" As such, the Act also limited the right of
a testator freely to dispose of his estate.232
It could also not be argued that cohabitants who expressly or by implication had
undertaken to support one another could be equated to married couples, and that
the only difference between them was the existence of a marriage certificate.
Marriage created instantaneous obligations that at times endured beyond the
death of one of the spouses, while any obligation that was created between
cohabitants arose "by agreement and only to the extent of that agreement.,,233 It
followed that it was not unfair for the law to distinguish between surviving
spouses and surviving cohabitants as far as maintenance was concerned as it
would be inappropriate to impose such a duty on a deceased estate where no
such duty was imposed by operation of law during the lifetime of the
deceased.P" This line of reasoning was supported by Ngcobo J in his concurring
judgment235 when he stated that:
The decision to enter into a marriage relationship and to sustain such a relationship
signifies a willingness to accept the moral and legal obligations, in particular, the
reciprocal duty of support placed upon spousesand other invariable consequencesof a
marriage relationship. This would include the acceptance that the duty to support
survivesthe death of one of the spouses... The law expects those heterosexual couples
who desire the consequences ascribed to this type of relationship to signify their
acceptanceof these consequencesby entering into a marriage relationship.236
231
Par [55] and [56].
232 Par [57].
233
Par [58].
234 Par [60].
235
Chaskalson CJ, Langa DCJ,Moseneke, J, Van der Westhuizen J and Yacoob J concurred in Ngcobo
J's judgment.
236
Par [91] and [92].
232
As far as the possible violation of her right to dignity was concerned, the majority
of the Court held that no such violation took place as the Act did not imply that
R's dignity was "worth less than that of someone who is married", but simply that
the reasons outlined above justified the Act's distinction between a surviving
spouse and a surviving life partner.237
In conclusion, while it was true that during the existence of their relationships
surviving heterosexual life partners were often vulnerable and economically
dependent on their partners, who, to boot, often refused to marry them or to
compensate them for their domestic contributions, Skweyiya J concluded that
this reality was neither caused, nor could be solved, by the extension sought by
R, and that the failure to permit the extension would not discriminate unfairly
against vulnerable women.238 Instead, the solution to this problem would be for
the law to regulate the "rights and obligations" of parties in such unions and for
these social realities to be addressed by "the empowerment women and social
policies by the [L]egislature.,,239 In the end result, the order of the Court a quo
was not confirmed.
3.3.1 A critique of the approach in Volks NO v Robinson
It is submitted that this case was incorrectly decided. In addition, although the
point will be made that the dissenting judgment of Sachs J is for the most part to
be supported.v''' it is further submitted that certain points of criticism can
unfortunately be levelled at this judgment as well. To illustrate what is submitted
to be the more correct approach, four aspects will be dealt with in the discussion
that follows. These are (i) the so-called "choice argument" and the broader
"family law-based" approach; (ii) the lack of appreciation of the value of a factual
237 Par (61) and (62).
238 Par (65) and (68).
239 Par (66).
240
Also see Und 2005: 129.
233
reciprocal duty of support; (iii) the anomaly surrounding the perceived curative
effect of the extension sought by R; and (iv) the ambit of that extension.
3.3.1.1 Critical aspect 1: The "choice argument" and the broader "family
law-based" approach
A consideration of the aforementioned summary makes it clear that Sachs J was
correct when he concluded that both the judgments of Skweyiya J (the majority
judgment) as well as that of Ngcobo J are effectively founded on what may for
the purposes of this study conveniently be termed the "choice argument"; the
underlying sentiment of which he succinctly summarises as follows:
By opting not to marry, thereby not accepting the legal responsibilities and entitlements
that go with marriage; a person cannot complain if she is denied the legal benefits she
would have had if she had married. Having chosen cohabitation rather than marriage,
she must bear the consequences.241
Many arguments can be raised for and against this line of reasoning, and it may
be useful at this point briefly to examine the merits of the "choice argument" as
applied by the majority decision in Volks. In this regard Schafe~42 explores a
number of advantages and disadvantages of what he prefers to describe as the
"objective model of choice.,,243According to him the model possesses three main
241
Par [154] (per Sachs J).
242
2006: 640 - 644.
243
Writing before the promulgation of the Civil Union Act 17 of 2006, Schafer (2006: 627 and 640)
describes this approach as the "objective model of choice" which he states "assesses the
availability of choice for any given couple by looking only to the presence or absence of an
absolute legal impediment to marriage between couples within their class. Opposite-sex
couples, as a class, enjoy the freedom to marry; same-sex couples do not. This model of freedom
of choice would appear not to be defeated by the operation of a relative impediment affecting
some members of a class, provided it promotes a legitimate and reasonable objective. For
example, restricting the capacity to marry of those who are too young or of insufficient mental
capacity to appreciate the legal consequences of marriage can be justified on the basis that it is
necessary to protect vulnerable members of society. These impediments do not contradict the
general proposition that opposite-sex couples, as a class, enjoy the (objective) freedom to
marry."
234
advantages, namely (i) the fact that it is based on mutual consent and therefore
attaches equal weight to the will of both parties to the relationship (as an
example hereof Schater mentions that if R had been successful in her claim to
have the Act extended so as to provide for her relationship, this would imply that
her wish to marry would have been accorded greater weight than the deceased's
election not to marry);244(ii) that it is a feasible approach as it "requires decision-
makers to look no further than the objective means by which the law permits
choice to be manifested"; and (iii) that it is the best option in terms of ensuring
that all parties (including outsiders) are in no doubt as to the extent of their rights
and obligations vis-á-vis one another.i" On the other hand, the disadvantages
include (i) the fact that the model ignores the context within which the choice to
marry is exercised (although Schater concedes that a contextual approach
"invites fine and potentially unfair value judgments" regarding the motivation
behind such decisions); (ii) the fact that it ignores relationships which resemble
marriage in social and functional terms; and (iii) that it makes no allowance for
parties who have based their election not to marry on an uninformed choice.246
Despite the fact that, with specific reference to the facts in Volks, Schafe~47 is of
the opinion that a rigid application of this model "sits uneasily" as the evidence
showed that it was in reality only S who had chosen not to wed, he concludes
that the objective model "should continue to serve to justify a differential
allocation of rights and duties within a new hierarchy of life partnerships.v'"
Advantages and disadvantages aside, the preceding discussion highlights the
major difficulty faced by heterosexual life partners in the position of R namely
that-objectively speaking-it remains an indubitable fact that the law has always
provided them with the option of marrying one another (and still does so). This
much is trite. However, in his minority judgment Sachs j stated that this fact
alone is not necessarily sufficient to serve as a basis for concluding that a
244 Cf Und 2005: 123.
245 Scháfer 2006: 642, 643.
246 Schater 2006: 641, 642.
247 2006: 640.
248 2006: 643.
235
surviving life partner in the position of R should not be entitled to maintenance
solely because the option to marry was never exercised. Indeed, as Sachs J
convincingly pointed out, the option of marrying often exists only in theory.249
Furthermore, Sachs J continued, a valuable lesson could be learnt from
Canadian jurisprudence where the Courts have held that a distinction needs to
be drawn between matters which involve the (re-) regulation or division of
property between life partners and those involving matters of (spousal) support.
In Nova Scotia (Attorney General) v Walsh,250 Gonthier J251explained that this
distinction is essential as:
While spousal support is based on need and dependency, the division of matrimonial
assets distributes assets acquired during marriage without regard to need.
On the basis of this distinction, the fact that the parties have not specifically
elected to marry one another could not deprive one of them of a right to support,
as "a request for support must always be based on the particular needs of the
applicant and the respondent and their capacity to provide for themselves and
each other.,,252 Consequently, the "choice argument" would only hold water in
249
Par [155] - [162]. Also see Schater 2006: 641. It is important to note that Sachs J's comments in
this regard referred specifically to heterosexual cohabitants as same-sex marriage was not yet
possible at the time of the Volks judgment. However, Wood-Bodley (2008(a): 54 et seq and
2008(b): 260 and 266) makes the interesting point that despite the legalisation of same-sex
marriages, the election to marry is also not a realistic option for such couples due to "ongoing
homophobia in society and the concomitant need for many to remain closeted to a greater or
lesser degree" and, for this reason, the piecemeal recognition granted to same-sex couples by
cases such as Gory v Kolver NO 2007 (4) SA 97 (CC); 2007 (3) BCLR294 (CC) should be retained
despite the fact that same-sex couples may now marry. Wood-Bodley's submissions are
considered in the discussion of Gory v Kolver NO and Others in 3.4.1 below.
250
2002 SCC83, 32 R.F.L. (5th) 81, 221 D.L.R. (4th) 1, 211 N.S.R. (2d) 273, 102 C.R.R. (2d) 1, [2002] 4
S.C.R.325, 297 N.R. 203, 659 A.P.R. 273, REJB2002-36303, H. 2003-102.
251
Mr Justice Charles Doherty Gonthier (born in 1928) served as a Judge of the Supreme Court of
Canada from 1 February 1989 until his retirement on 1 August 2003. He passed away on 17 July
2009. Source: http://www.scc-csc.gc.ca/court-cour/ju/gonthier/index-eng.asp (accessed on 5
September 2009).
252
See par 203 where Gonthier J based this conclusion on the criteria posed by section 33 of
Ontario's Family Law Act R.S.O. 1990, c. F.3 for determining the "amount and duration" of
support for a "spouse, same-sex partner or parent in relation to need." The reference to "same-
sex partner" has since been deleted, and the definition of "spouse" now means: "a spouse as
defined in subsection 1 (1), and in addition includes either of two persons who are not married to
236
the case of property disputes and not where the extension sought was based on
need (as is obviously the case with maintenance). The rationale behind this
distinction, according to Gonthier J, is to be found in the different objectives
served in these two cases: While the former seeks to divide property in
accordance with a matrimonial property system, a need-based claim serves the
"social objective" of providing for the needs of a spouse and his or her
offspring.253
Sachs J appeared to favour this contextualised approach towards the "choice
argument" over the one adopted by the majority of the Court. In this regard, it is
submitted that Sachs J was correct as the majority judgment, while theoretically
sound, fails to appreciate the social context and practical realities related to
choice (such as unequal and gendered power relations and ignorance of the
consequences of non-forrnalisationj+" and as such represents little more than a
clinical adherence to matrimonial law in circumstances in which it is clear that the
"choice" to marry is often merely illusory.255 Goldblatt256neatly encapsulates the
latter reality in the following terms:
The libertarian presumption of free choice is incorrect. It is itself premised on the idea
that all people entering into family arrangements are equally placed. This is not so.
Men and women approach intimate relationships from different social positions with
different measures of bargaining power. Gender inequality and patriarchy result in
women lacking the choice freely end equally to set the terms of their relationships. It is
precisely because weaker parties (usually women) are unable to compel the other
partner to enter into a [marriage or] contract or register their relationship that they
each other and have cohabited, (a) continuously for a period of not less than three years, or (b)
in a relationship of some permanence, if they are the natural or adoptive parents of a child.
("conjoint") R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6)."
253
Par 204 of the Walsh case. This finding was referred to with approval by the Supreme Court of
British Columbia (per Neilson J) in M.A.S. v F.K.M. 2003 BCSC849 (CanLIl) at par 62.
254
See inter alia Und 2005: 109 - 113; Goldblatt 2003: 614 and 616; De Vos 2004: 183 and SALRC
2006: 29 et seq for an explanation of these and other realities.
255
The need for an approach based on "family law" as opposed to "matrimonial law" is discussed
and explained in the paragraphs that follow.
256 2003: 616.
237
need protection ... The research [conducted for the purposes of Goldblatt's
contribution) showed that it usually suits men to neither marry nor formalize the
partnership in any way, so that they might have the freedom to take what they want
from the relationship free of any concomitant obligations. The illiteracy, ignorance and
lack of access to the law and other resources compounds the already difficult position
facm. g many women. 257
As support for this contention, it is further submitted that if it is borne in mind that
a "first-world" society such as Canada deems it necessary to adopt a context-
specific approach, the adoption of a similar approach is even more imperative in
a less sophisticated and less homogenous society such as South Africa which, in
the eloquent phraseology quoted by Sinclair and Heaton, is "fissured by
differences of language, religion, race, cultural habit, historical experience and
self-definition.,,258 An even greater awareness of the realities encountered in
such a multifarious society would certainly be required in the latter instance.
However, by effectively giving pre-eminence to the "choice argument" despite the
fact that the claim in casu was based on need, the majority decision in Volks
unfortunately took the diametrically opposite route and, in the words of Lind259
"ignores the society we have become." In this regard, the decision of the majority
and the rationale on which it was based clearly underscores the need for
domestic partnership legislation that provides a legal institution that co-exists with
marriage and that accommodates the lived reality faced by life partners for whom
the choice of formalisation exists merely in theory.
257
In the light of the legalisation of same-sex marriage, it is submitted that many of these
arguments could also apply to the "choice" of persons involved in such relationships to enter into
marriages or civil partnerships, particularly as far as unequal power relations and ignorance of
the law are concerned. In addition, as will be seen below, the impact of factors such as
homophobia on the presumption of free choice also plays a significant role within the context of
same-sex relationships.
258
Sinclair and Heaton 1996: 7, who acknowledge this quote as appearing in an article written by
Ken Owen that appeared in the Business Day of 26 June 1990.
259 2005: 111.
238
The same criticism can, with respect, be levelled at Schafer's approach in that,
while his arguments for and against the "choice argument"260are meritorious, he
fails to address the question as to whether the "objective model of choice" is
robust enough to withstand constitutional scrutiny where the claim in question is
based on need as opposed to relating to a purely proprietary concern. It is
submitted, in the light of the discussion below, that it is not. It is however
important to note that this does not mean that Schater is incorrect when he
concludes that the "choice argument" should continue to vindicate a "differential
allocation of rights and duties within a new hierarchy of life partnerships." What
is however suggested is that this statement should possibly be contextualised in
order to permit the "choice argument" to sanction such a "differential allocation"
only within the context of property disputes.
The determination of the issue in the Volks case also demands due consideration
of the unique attributes of the society in which these relationships present
themselves. As Sachs J pointed out, the historical fact of a patriarchal societal
structure, the disruption of African family structures engineered by enforced
labour migration and the problems occasioned by poverty also needed to be
considered in order further to establish the background against which the issue in
casu needed to be considered.261 Coupled with these considerations, the
learned Judge also emphasised the continuing shift from the narrow concept of
the law of marriage towards the broader concept of "family law" in which-in line
with prevailing social realities in South Africa-the notion of family fell to be
determined with reference to the function it performed as opposed to whether it
complied with the traditional common law definition of marriage.262 This shift was
260 As discussed above.
261 Par (163)- (166).
262 Par (167)- (174). For examples of many of the issues which are indicative of a need for this shift,
see Chapter 1 in Sinclair and Heaton 1996: 68 where (writing with specific reference to sex and
gender inequality) the authors opine that "South Africa stands poised to question the
assumptions that have formed the basis of its laws regulating and affecting intimate
relationships. Unless attention is given to the issues cited below [including inequality in the
workplace, reproductive rights, inequality within marriage and upon divorce, and the recognition
of customary and Islamic marriages) only as examples, the new mould will reproduce the
239
also evident in the wide array of legislative developments that, particularly since
1994, had provided context-specific recognition and protection to life partners
and family structures other than civil marriage.263 All of these considerations
pointed to the general emergence of a "new legal landscape" that was aligned
with the behests of the Constitution.264
The "new" legal landscape elucidated above coupled with the purpose behind the
promulgation of the Act (which Sachs J distils as being intended mainly to
prevent widows from destitution) led Sachs J to conclude that the legal question
in casu was whether the Act unfairly discriminated on the basis of marital
status.265 As the Act undoubtedly differentiated on a listed ground, it followed
that discrimination was present, and, as such, the fairness of such discrimination
fell to be determined.266 This, Sachs J quite correctly held, could not take place
within the strictures of the concept of "matrimonial law", but, instead, was to take
place with reference to the broader notion of "family law."267 The issue therefore
was whether the law could be expected to assist in enforcing the conflicting
responsibilities and in effectuating the expectations created between the parties
to a "domestic partnership.v'"
At this juncture it is important to note-as the learned Judge himself intimated
later in his judgment269-that the broader approach advocated by Sachs J is
nothing new: Although such an approach does not appear to have been referred
to in express terms in the cases already discussed that dealt with the extension
inequalities of the old; the society may achieve non-racialism, but it will not achieve sexual
equality. And [quoting from Murrayand O'Regan for whom the authors provide a full reference
at note 170] 'a programme for the liberation of South Africa which does not take the issue of
gender discrimination seriously is incomplete'."
263 Par [175]- [181].
264 Par [181].
265 Par [186]- [187].
266 Par [190].
267 Par [191].
268 Par [193].
269 Sachs J refers to this as the Constitutional Court's "emphasis on the need to recognise diversity of
family formations in South Africa" (at par [210]) and "the need to adopt a flexible and
evolutionary approach to family life" (at par [211]).
240
of marital rights and responsibilities to same-sex life partners, precisely the same
rationale as that employed by Sachs J in his minority judgment constitutes the
philosophical premise of those decisions."? The only obvious difference
between the position of homosexual and heterosexual life partners at the time
was that only the latter group had the option of marriage available to them.
However, as seen above, the "choice argument" is insufficient to impose an
unqualified exclusion on this category of persons. Indeed, as Sachs J correctly
mentioned, one of the key issues in the matter at hand was
whether in substantive terms the committed life partner of the deceased bears the
same relationship to the deceased in every respect as a married partner, save for not
having gone through the formalities of marriage.271
This, it is submitted, was precisely the same reasoning employed in the same-
sex cases; reasoning that certainly was indicative of a shift from the constraints
of the law of marriage to a more encompassing body of "family law."
Sachs J proceeded to conclude that "marital status" was included as a listed
ground in the equality clause in order to protect persons who were vulnerable
due to the fact that they were unmarried.272 While it was apparent that society
generally condoned cohabitation more readily than it had done in the past,
societal prejudices against such relationships had not been completely
eradicated.273 Nevertheless, the institution of marriage had to be protected due
to the vital role it played in both public and private life. However, the fundamental
question in Sachs J's opinion was whether this entitled marriage to exclusivity,
and therefore whether the exclusivity occasioned by the Act was unfair.274 In
deciding this crucial issue, Sachs J commenced by emphasising the role played
by the Constitutional Court in broadening the scope of recognised family
270 See par [210]- [211] of Sachs J's minority judgment.
271 Par [196] (emphasis added).
272 Par [200].
273 Par [200]- [203].
274 Par [208].
241
formations in South African society, but also pointed out that it had to be borne in
mind that no single case had heretofore dealt with the issue of life partnerships
that existed between two unmarried persons of the opposite sex.275 What
needed, however, to be determined was whether there was:
[A] familial nexus of such proximity and intensity between the survivor and the
deceased as to render it manifestly unfair to deny her the right to claim maintenance
from the estate on the same basis as she would have had if she and the deceased were
married[.] 276
Sachs J proceeded to provide two scenarios in which the denial of such a claim
would in his opinion be unfair. As these scenarios are discussed as part of the
second critical aspect identified earlier dealing with the factual duty of support,
the discussion of Sachs J's conclusion regarding the familial nexus will
momentarily be interrupted in order to present the author's conclusions from this
discussion. Before doing so, it must be noted that Sachs J's minority judgment
culminated in the finding that the exclusion of the benefits of the Act to married
survivors only constituted unfair discrnnmation.?"
To conclude: It is important to note that the issue in question was whether a
claim for maintenance could be denied to a person in the position of the
applicant.278 It must, once again, be emphasised that such a claim is a claim that
is based on need as opposed to a mere property dispute. It follows-quite
obviously-that the arguments raised above in consequence of Sachs J's finding
of unconstitutionality in casu cannot without more be transplanted into a
proprietary (as opposed to need-based) setting. In other words, the points made
in support of the Judge's finding that it amounted to unfair discrimination to deny
a person in the position of R a claim for maintenance in terms of the Act could
275
Par (210)- (211).
276
Par (213) (emphasis added).
277 Par (227).
278
See the extract from par (213) as quoted above.
242
not necessarily also be raised in a case where a property dispute between life
partners is at issue. However, the fact that the majority of the Court was
prepared to hold that the denial of a need-based claim to heterosexual
cohabitants did not violate the right to equality does not bode well for property-
based claims, as the inference can be drawn that a Court will be even less likely
to hold that the non-application of matrimonial property law to a property-based
claim between cohabitants was unconstitutional.
Consequently, it is submitted that:
(i) Sachs J was correct in finding that the majority judgment had taken the
"choice argument" too far. As Und states, "the real lived quality of equality
remains remarkably elusive" in contemporary South Africa, with the result
that a "severely gendered environment" persists, leading to the choice of
formalising a relationship often being illusory. One positive aspect of the
majority judgment is, however, that it illustrates clearly the need for the
legislation developed in consequence of the domestic partnerships rubric
to address this type of problem;
(ii) The judge's approval of the Canadian approach in terms of which a
distinction is drawn between need-based claims and those involving
property disputes is to be supported. This issue will be discussed in more
detail in 3.3.2.2 below;
(iii) Sachs J's broader approach that advocates a shift from "matrimonial law"
to "family law" is to be commended;
(iv) As the issue in casu was a need-based claim, it follows that a combination
of conclusions (i), (ii) and (iii) only apply within the context of need-based
claims (as opposed to those involving property disputes);
243
(v) In the light of (i) - (iv) above, the "choice argument" should have no role to
play in the adjudication of the extension of need-based claims to mutually
interdependent permanent life partnersr"? but
(vi) This does not imply that the "choice argument" has no role to play
whatsoever, but rather that, in consequence of (i) - (v) above, it should at
best have a role to play within the context of property disputes only.28o
This matter will be explained in further detail below;281
(vii) Finally, it is submitted that conclusions (v) and (vi) should be borne in
mind for the purposes of the legislation based on the domestic partnership
rubric referred to in (i) above.
3.3.1.2 Critical aspect 2: The value of the existence of a factual duty of
support
It is submitted that Sachs j's finding regarding the unfairness of the Act and the
lack of justification for the exclusion of persons other than surviving spouses was
correct. Nevertheless, an important lacuna in this otherwise well-reasoned
minority judgment must be unveiled. In order to understand this submission, the
two scenarios mentioned earlier (id est those described by Sachs j in which
denying a maintenance claim would be unfair in view of the existence of a
significant familial nexus) need to be dealt with in some detail.
• Category 1: The existence of an express or tacit duty of support
The first category mentioned by Sachs j involved parties who had expressly or
impliedly bound themselves to "provide each other with emotional and material
279
The necessity of the existence of a reciprocal duty of support is discussed in the second critical
aspect that deals with the validity of a factual duty of support.
280
See the main text above where Schafer's support of the "objective model of choice" is
contextualised.
281
See the conclusions at 3.3.2 below.
244
support.,,282 While it would ease matters if proof of such an undertaking could be
provided by way of a "legal document", Sachs j also emphasised that such an
undertaking could be inferred on the facts of a specific case (as indeed the
Constitutional Court had also found in Satchwell (1)).283 Moreover, while the
finding in Satchwell (1) had been restricted to homosexual life partners, Sachs j
was of the opinion that the same inference could be drawn in the case of
heterosexual couples.f" On this basis Sachs j found that the duty could extend
beyond the death of one of the life partners and thus permit a claim in terms of
the ACt.285
It is submitted that Sachs j's reasoning regarding this group of persons is
correct. Nevertheless, as will be seen below, Sachs j stopped short of taking
this aspect of his judgment to its logical and decisive conclusion .
., Category 2: Maintenance in the absence of an express or tacit
undertaking
The second instance in which Sachs j opined that the denial of a maintenance
claim would be unfair seems less convincing. This category is described as one
in which a maintenance obligation arises not from any agreement to that effect
but instead due to "the nature of the particular life partnership itself.,,286Sachs j
appeared to view this group as comprising a family unit where the survivor was
not able to contribute to maintenance in material terms but rather by way of "care
and concern" and "sweat equity.,,287
282 Par (214).
283
2002 (6) SA 1 (CC). It will be recalled that it is debatable whether the Court actually found such a
duty to exist in casu-see 3.2.2 above.
284
Par (215). Also see Mokgoro and O'Regan JJ's dissenting judgment where they also agree that a
reciprocal duty of support could be inferred from the facts of the case (at par (104)).
285 Par (216).
286 Par (218).
287 Par (219).
245
As mentioned above, it is submitted that this (second) category envisioned by
Sachs J is less convincing than the first. The main reason for making this
submission is that there is no real distinction between the first and the second
category of persons mentioned by Sachs J. In other words, it is suggested that a
contractual duty of support is present in both scenarios envisaged by Sachs J.
This is so because although the existence of a reciprocal duty of support is
based on the need of one party and the corresponding ability of the other to
provide,288it is acknowledged by authors such as Sinclair and Heaton289that in
such a situation the duty of support rests on the sole breadwinner.F" It therefore
does not follow from the fact that only one party is earning an income that no
reciprocal duty of support exists, for as Van Zyl291states, the duty of support in
South Africa "is always a reciprocal one." Nevertheless, contemporary socio-
economic conditions make it fairly difficult to imagine a scenario where only one
party contributes to the maintenance of the other party for the entire duration of
the relationship without the slightest reciprocal contribution from the one who is
generally being maintained.292 For Sachs J to attempt to explicitly identify and
differentiate such a category of relationship therefore appears to be somewhat
artificial. Indeed, the learned Judge appears (perhaps inadvertently) to conflate
the first and second scenarios himself when he states that:
In the words of the Equality Act [Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000], what matters is whether in the relationship there was a
comtru 'tment to rectp. toca I support. 293
288
See for example Van Zyl 2005: 3; Cronjé and Heaton 2004: 52; Visser and Potgieter 1998: 76.
289 1996: 442 (at note 90).
290
In Bezuidenhout NO v ABSA Versekeringsmaatskappy Bpk (unreported judgment of the Transvaal
Provincial Division [now North Gauteng High Court, Pretoria], case no 40688/2008 delivered on
26 February 2008) at par [7.3] the Court accepted, on the evidence of only one party, that that
party maintained the other one "almost like a child" as the latter was unemployed and did not
contribute towards household expenses. The Court therefore appears to have accepted that the
former party was the sole breadwinner-see par [13].
291
2005: 3.
292
See the brief comment on Bezuidenhout NO v ABSA Versekeringsmaatskappy Bpk (unreported
judgment of the Transvaal Provincial Division [now North Gauteng High Court, Pretoria], case no
40688/2008 delivered on 26 February 2008) in the preceding note but one and in 3.4.2 below.
293
Par [219] (emphasis added).
246
From this statement, it can be deduced that it is not necessarily required that
both partners actually and continuously contribute towards reciprocal
maintenance, but rather that there is a commitment in this respect that gives rise
to a (contractually-based) reciprocal duty.
Furthermore, although none of the cases that Sachs J cited in support of his
contention that a broader approach had been entrenched by the Constitutional
Court in order to "recognise diversity of family formations" dealt with heterosexual
life partners, it is important to note that in all of these cases it was found that it
was possible to infer that a reciprocal duty of support existed on the facts of each
case. Indeed, as pointed out earlier in the discussion of that case, the Court in
Satchwe/l granted the extension sought without ever pronouncing itself on
whether or not a duty of support even existed. Nevertheless, the cases cited by
Sachs J all had one core aspect in common, namely the existence of a reciprocal
duty of support that had been inferred on the facts of the matter. Furthermore, if
the criticism against the second category identified by Sachs J is borne in mind, it
becomes clear that a reciprocal duty of support exists in those circumstances as
well as those of the first category.
The inevitable conclusion, therefore, is that the existence of a reciprocal duty of
support is the decisive factor in determining whether or not the claim of a person
in the position of R should succeeoi" Moreover, it is clear that a reciprocal duty
294 In their dissenting judgment Mokgoro and O'Regan JJ also appreciated the fact that the existence
of a reciprocal duty of support was essential in order to allow cohabitants to claim in terms of the
Maintenance of Surviving Spouses Act (see par [139] and [140] as well as their proposed order as
contained in par [145]). It is submitted, however, that with the exception of this aspect, their
order contains a number of critical deficiencies-see the main text. The necessity of proving that
a reciprocal duty of supported existed while both parties were alive also appears to have been
realised by counsel for R during the confirmation proceedings, as is evident from par [28] of the
majority judgment where Skweyiya J mentions that the Court had been informed that the
extension sought by R (1st respondent) and the Women's Legal Centre Trust (2nd respondent)
would only be required in cases where the life partners had undertaken mutual duties of
support. It is however interesting to note that Mokgoro and Q'Regan JJ pointed out that while
the order proposed by them limited the scope of claims in terms of the Maintenance of Surviving
Spouses Act to heterosexual couples who had undertaken mutual duties of support, "the
respondents and the amicus" had argued that an order to the effect that the common law was to
247
of support in fact existed between the life partners in Volks. The failure of the
majority judgment (as well as that of Negabo J) to recognise this fact295 is not
only incomprehensible, but, when compared to the ease with which the Courts
have inferred the existence of such a duty in the same-sex cases, appears to be
inconststent.i'"
Nevertheless, while Sachs J had no qualms in acknowledging the existence of a
reciprocal duty of support in casu, it appears (as mentioned earlier) that the
learned Judge does not appear to have identified this requirement as constituting
the true cornerstone of his dissenting judgment. Indeed, a finding that the
reciprocal duty of support was the key to R's claim would also have facilitated the
refutation of a major concern raised by Skweyiya J in his majority judgment. The
reservation in question is essentially based on the differences between the
obligations created ex lege by marriage and those created ex contractu between
life partners and the concomitant problematic application of these obligations
beyond the death of the parties concerned. In this regard Skweyiya J stated that:
[Sachs J contends) that for the law not to oblige survivors of relationships in this
category to be maintained entails unfair discrimination against the survivor simply
because the survivor does not have the piece of paper which is the marriage certificate.
That is an over-simplification. Marriage is not merely a piece of paper. Couples who
choose to marry enter the agreement fully cognisant of the legal obligations which arise
by operation of law upon the conclusion of the marriage. These obligations arise as
soon as the marriage is concluded, without the need for any further agreement. They
be developed so as to create an ex lege duty of support for cohabitants was to be preferred over
an order which required proof of a contractual undertaking of mutual support. The reference to
"the respondents and the amicus" is confusing when viewed against par [28] of the majority
decision. It therefore appears that the argument attributed by Mokgoro and Q'Regan JJ to "the
respondents and the amicus" in fact excludes counsel for R and for the Women's Legal Centre
Trust, who seemingly conceded that the existence of a contractual duty of support was required
in order for their claim to succeed.
295 See Schafer 2006: 643 who appears to share the view that the couple's relationship was clearly
"marked by commitment and mutual interdependence."
296 It is self-evident that the existence of a duty of support is a question of fact and not of gender.
The recognition of such a duty within the context of homosexual relationships (see the discussion
above) but not in the case of a heterosexual couple is therefore an egregious anomaly.
248
include obligations that extend beyond the termination of marriage and even after
death. To the extent that any obligations arise between cohabitants during the
subsistence of their relationship, these arise by agreement and only to the extent of that
agreement. The Constitution does not require the imposition of on obligation on the
estate of a deceased person, in circumstances where the law attaches no such obligation
during the deceased's lifetime, and there is no intention on the part of the deceased to
undertake such an obligation.297
From the final sentence of this quote it appears as if Skweyiya j was of the
opinion that two factors, namely (i) the lack of an obligation imposed ex lege and
(ii) the absence of the intention of the deceased to incur such an obligation,
would be decisive. Two paragraphs later Skweyiya j summarised this
reservation by concluding that it would be "incongruous, unfair, irrational and
untenable" to impose a duty of support on a deceased estate where "none arose
by operation of law during the lifetime of the deceased.F"
This objection to the extension sought by R deserves special attention.
e To begin with, it is to be noted that although the "intention requirement"
was specifically mentioned in the extract from Skweyiya j's jUdgment,299
the learned judge only makes one reference to this requirement and does
not include it as a factor in summarising this finding on two subsequent
occasions."? However, for the purposes of this discussion it can be
assumed that he nevertheless took cognisance of the deceased's
(perceived) intention when considering whether or not R's claim for
maintenance could succeed. However, it is submitted that ascertaining
the intention of the deceased is not always a simple matter. This
297 Par [58] (footnote omitted and emphasis added).
298 Par [60]. Also see par [68] (quoted in note 300 below).
299 See the final sentence of par [58] as quoted above.
300 See par [60] (the essence of which is quoted above) and par [68]: liAs I have already said, it is not
unfair not to impose a duty upon the estate of a deceased where no duty of that kind arose by
operation of law during the lifetime of that person" (emphasis added).
249
represents the first major difficulty with the "intention requirement" as
prescribed by Skweyiya J: It attempts to formulate an absolute
qualification of general application to all cohabitants on the basis of his
interpretation of the facts in Volks. The learned Judge concluded that S
did not intend to maintain R after his passing.301 As no other evidence for
drawing this conclusion is mentioned, it can be assumed that Skweyiya J
reached this conclusion on the basis of the bequests made to Rin S's will.
Considering the facts in casu, it is clear that S inter alia bequeathed a sum
of R 100 000 to R in terms of his will.302 However, it does not follow from
this fact that S never intended to maintain R. On the contrary, the
bequests to her may indicate that he indeed wished to maintain her, but
that in his opinion the property bequeathed would be sufficient to do so.
Therefore, the fact of the bequest should instead be used to assess (as
the Act requires in the case of spouses to a valid marriage) the "own
means" of the survivor, and not as an absolute bar to the institution of a
claim in the first place. If this were to be done it would follow that R would
not, on the facts of the case, be entitled to additional maintenance from
S's estate as the bequest would in all probability be deemed to constitute
sufficient maintenance. This much was pointed out in both dissenting
judgments.303 Moreover, this approach would also be in line with the order
proposed by Sachs J in which he clearly stated that the Act in his opinion
was unconstitutional to the extent that it excluded cohabitants "from
pursuing claims of rnaintenance.v''" This obviously implies that each
claim would be considered on merit, just as the case would be with a
surviving spouse.
301 Par [58].
302
Par (7]. She was also entitled to other assets including a motor vehicle and the contents of the
flat.
303
See Sachs J's dissenting judgment at par [240] and Mokgoro and O'Regan JJ's dissenting
judgment at par [142]. Also see Lind (2005: 109) for the implications of these views on the
finding of the majority.
304
Par [236] (emphasis added).
250
• Secondly, the majority judgment does not give due recognition to the
potency of a contractual (as opposed to ex lege) duty of support.305 It is
clear on the facts of the case that Sand R had undertaken a contractual
duty to support one another.306 While it is true that one duty of support
arises ex lege (in the case of marriage) and the other arises contractually
(in the case of life partners, such as the situation in casu), these duties are
equally worthy of protection. This fact is borne out both by legislation and
by case law. Two examples can be cited:
(i) Firstly, the Maintenance Act 99 of 1998 no longer recognises
maintenance in the restricted circumstances provided for by its
1963 preoecessor'" in terms of which the obligation to maintain
was limited to blood relations and spouses.i''" As such, section
2(1) of the 1998 Act has broadened the scope of maintenance
obligations so as to include a legal duty to maintain that was
created by a contractual undertaking.309 In other words, a
contractually-created duty of support can found a legal duty to
maintain that is protected by the 1998 Act."?
(ii) Secondly, in Du Plessis v Road Accident Fund 311 (discussed
earlier) the existence of a contractual duty of support between the
deceased and his same-sex partner played an integral role in
holding the Road Accident Fund liable for damages for loss of
support suffered by the survivor.P" In this instance, a third party's
305 Also see Lind 2005: 122, 123.
306
See for example par [240] of Sachs J's dissenting judgment and Mokgoro and O'Regan J1's
dissenting judgment at par [104].
307
The Maintenance Act 23 of 1963.
308 Cronjé and Heaton 2004: 58.
309
The section reads as follows: "The provisions of this Act shall apply in respect of the legal duty of
any person to maintain any other person, irrespective of the nature of the relationship between
those persons giving rise to that duty."
310 Cronjé and Heaton 2004: 58.
311 2004 (1) SA 359 (SCA).
312 See par [11]- [16]; [37] and [42].
251
interference with the contractual duty of support between the life
partners was, due to its specific nature313 and therefore in the light
of the prevailing boni mores of society, found to warrant the
imposition of delictual liability in the form of the dependants'
action.?" This implies that, in order for the claim against the third
party to succeed, the survivor was required not only to prove that
the contractual duty of support between himself and the deceased
was legally enforceable, but also that the interference with this duty
constituted a delict.315 It is important to emphasise that this claim
therefore involved the interests of outsiders and was not limited to
those of the life partners thernselves.ê'"
It is true that in Du Plessis Cloete JA expressly refrained from
commenting on the position of heterosexual couptes."" However,
if one applies the ratio of the decision in Du Plessis to the
313
The legal convictions of the community (boni mores) test is used to determine whether the duty
of support is worthy of protection in law and whether the interference therewith is wrongful-
see Brooks v Minister of Safety and Security 2008 (2) SA 397 (C) at par [25]. As Neethling et al
(2006: 259) mention, this implies that interference with a contractual duty of support will not be
wrongful per se, as the nature of the relationship between the parties is instrumental in
determining whether or not the interference indeed was contra bonos mores. It appears as if the
criterion employed thus far by our Courts in this regard has been whether the contractual duty
was, but for the fact that the parties were not married in terms of applicable marriage legislation,
either (i) owed by virtue of a marriage concluded in terms of a "recognized and accepted faith
such as Islam" (see Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender
Equality Intervening) 1999 (4) SA 1319 (SCA) at par [25]) or (ii) that it was undertaken in a
permanent homosexual life partnership "similar in other respects to marriage" (Du Plessis v Road
Accident Fund 2004 (1) SA 359 (SCA)at par [42]).
314
See Neethling et al 2006: 259, 260. It is interesting to note Skweyiya J's statement (in par [58])
that "[t]o the extent that any obligations arise between cohabitants during the subsistence of
their relationship, these arise by agreement and only to the extent of that agreement." It is
submitted that the Du Plessis judgment highlights the fact that this statement cannot be made
without qualification as the contractual obligation that existed between the life partners in effect
formed the basis for the outsider's delictual liability. This implies that an obligation that exists
inter partes may be more far-reaching than this statement of the law would have one assume.
315
See par [12] and [17] of the judgment where Cloete JA summarises the core elements in the case
as firstly proving that a legally-enforceable duty of support existed and, as an outflow hereof,
that the killing of the deceased was wrongful and therefore actionable against the defendant in
delict.
316
See note 318 that follows for the relevance hereof.
317 Par [43].
252
circumstances in Volks, it is submitted that it is fallacious to contend
that the existence of a contractual duty of support could be brushed
aside with such ease in the latter case in circumstances where (in
contradistinction to the relief sought in Du Plessis) neither the State
nor a third party was required to provide the requisite support.P"
This argument is strengthened ali the more if one bears Sachs j's
valid criticism of the "choice argument" in mind (which, it is to be
remembered, constituted the underlying reasoning of the majority
judgment in Volks).319
When one applies this information to the facts in Volks, it becomes clear
that the "intention requirement" introduced by Skweyiya j (referred to
above) cannot be used in order to play ex lege and ex contractu duties of
support off against one another. For example, in the case of a marriage,
even if the deceased spouse had evinced a clear intention not to maintain
his wife, she would still have been allowed to institute a claim in terms of
the Maintenance of Surviving Spouses Act. The deceased spouse's
intention would be irrelevant. What is important is that a duty of support
existed that was worthy of protection and therefore worthy of extension
beyond death. As seen above, the fact that a contractual duty of support
is as robust and as worthy of protection as an ex lege one is borne out by
case law and by legislation. Bearing this in mind, Skweyiya j's finding
presents the anomalous conclusion that while the contractual duty of
support that existed during the existence of the relationship between S
and R could be enforced in terms of the Maintenance Act,320 such a duty
318
See par [39) of Skweyiya J's judgment: "The obligation to maintain that exists during marriage
passes to the estate. The provision does not confer a benefit on the parties in the sense of a
benefit that either of them would acquire from the state or a third party on the death of the
other."
319 This aspect is fully discussed in 3.3.1.1 above.
320 99 of 1998.
253
would-on the basis of the majority's finding-be unenforceable after the
death of either of the parties.321
In the light hereof, it becomes clear that to exclude R's claim on the basis that no
ex lege duty of support was present is to adopt an unnecessarily narrow
approach towards contemporary South African family law, for, as Mokgora and
Q'Regan JJ stated in their joint dissenting judgment:322
[Skweyiya J's approach in terms of which it is fair to discriminate between relationships
which occasion an ex lege duty of support and those which do not] defeats the
important constitutional purpose played by the prohibition on discrimination on the
grounds of marital status. For if it does not constitute unfair discrimination to regulate
marriage differently from other relationships in which the same legal obligations are not
imposed upon the partners to that relationship by the law, marriage will inevitably
remain privileged.
Although Sachs J appeared to touch on this point in his dissenting judgment by
mentioning that he could "see little reason in fairness" as to why a contractual
duty could not be extended beyond the death of the survivor,323it is unfortunate
that he did not take this point further. This could have been accomplished by
expressly finding that a factual reciprocal duty of support indeed existed between
Sand R,324followed by a conclusion that-as a logical outflow hereof-Skweyiya
J's argument regarding posthumous application could be thwarted due to the
321
Ngcobo J's judgment (which concurred with the judgment of Skweyiya J) also failed to
acknowledge both the fact and potency of a reciprocal duty of support. This becomes clear when
one reads par [88] - [91] of the judgment where the learned Judge emphasised that the
Maintenance of Surviving Spouses Act extends the reciprocal duty of support beyond the death
of one of the spouses and in so doing safeguards the survivor's right to "receive maintenance and
support from the deceased spouse." As was the case with the majority judgment, Ngcobo J
failed to acknowledge both (i) the fact that a contractual duty of support existed between Sand
R, and (ii) that both case law and legislation have established that such a duty is just as worthy of
recognition and protection as an ex lege duty.
322 Par [118].
323 Par [216].
324
Although Sachs J found that such a duty existed in casu (see par [240]) he did not drive this point
home.
254
removal of the very premise on which it was based.325 This same criticism can
unfortunately also be levelled against Mokgoro and O'Regan JJ's dissenting
judgment: Although the learned Judges found that a reciprocal duty of support
had indeed existed in casu,326 they also did not use this inference to counter
Skweyiya J's finding by holding that it was logical that a factual duty of support
which had existed while both partners were alive could be extended beyond the
death of one of them.327 Such a finding, it is submitted, would also have served
better to explain why they eventually held that, in their opinion, the Act would
henceforth be extended only to heterosexual couples who had indeed
undertaken mutual support obligations.328
It is consequently submitted that the existence of a duty of support during the
existence of a relationship is a sine qua non for the posthumous extension
thereof under the parameters defined by the Act. 329
325 Also see Und 2005: 121: "To say that a duty does not exist because the duty upon which it is
premised does not exist begs the question. If the one cannot exist without the other, the Court
must actively determine whether or not the latter exists in order for the former to fail." Lind
however appears to focus more on the argument that the common law duty of support should
have been "recast" (and that the Court should have "extended a lifetime support obligation to
cohabitants" (at 114)) than on recognising the factual duty of support as such. It is submitted
that extending the common law by recognising an ex lege support obligation between unmarried
life partners was not necessary-the same result could have been achieved by simply giving
effect to the de facto contractual duty of support that existed between Sand R.
326 Par [104].
327 This point is also not taken by Schater (2006: 630) who, while correctly stating that "at least in
relation to financial benefits, there should be a broad measure of proportionality between the
extent to which the [S]tate and third parties are expected to underwrite a life partnership and
the extent to which its participants have elected to assume binding legal obligations towards one
another", does not apply this principle to the majority decision in Volks despite apparently also
being of the opinion that a reciprocal duty of support indeed existed in casu (at 643).
328 See par [139], [140] and [145]. The order is quoted in the main text below.
329 This being the case, it is difficult to understand why Sachs J was of the opinion (at footnote 85 of
his dissenting judgment) that it is more important to establish the existence of such a duty where
the State is involved (as was the case in the Satchwell cases) as opposed to "a claim based on
subsistence needs." It can surely be argued-as section 2(1) of the Maintenance Act 99 of 1998
(discussed above) shows-that some recognised form of legal duty or obligation to maintain is a
vital requirement even in cases where the State is not directly involved. In order for such a duty
to arise, some form of reciprocity is required-see Van Zyl 2005: 3. In addition, as was pointed
out above, the distinction which Sachs J draws between the scenarios where a tacit or express
duty of support exists and those where maintenance is based on "the nature of the life
partnership itself" does not appear to be convincing. It is therefore submitted that the existence
of such a duty must be proved regardless of whether one is dealing with a claim involving the
255
The remainder of Sachs j's minority judgment proceeded to find, and, it is
respectfully submitted rightly so, that the Maintenance of Surviving Spouses Act
unfairly excluded persons other than spouses from its ambit, and that this unfair
exclusion could not be justified in terms of section 36 of the Constitution. The
judge's final conclusion was that:
It follows that the continued blanket exclusion of domestic partners from the ambit of
the Act, irrespective of the degree of commitment shown to the family by the survivor,
cannot be justified. The Act is accordingly invalid to the extent that it excludes
unmarried survivors of permanent intimate life partnerships as identified above, from
pursuing claims for maintenance. 330
In conclusion, it is submitted that the second critical aspect of the Volks judgment
highlights the fact that the order proposed by Sachs j should have included a
reference to the necessity of proving the existence of a reciprocal duty of support
between the life partners. It is consequently proposed that the final sentence in
the extract from his finding should instead have read that "[t]he Act is accordingly
invalid to the extent that it excludes unmarried survivors of permanent intimate
life partnerships in which the partners have undertaken reciprocal duties of
support, from pursuing claims for maintenance."
Although the order proposed by Mokgoro and Q'Regan jj in their dissenting
judgment appreciated the necessity of mutual support obligations having been
undertaken between the deceased and the survivor, it is respectfully submitted
that this is the only aspect of their order which can be supported. In order to
State, a third party or one of the parties him or herself. If this cannot be done, it is submitted
that Skweyiya J's argument (see par [60] of the majority judgment) regarding the
inappropriateness of imposing such a duty on a deceased estate while none existed inter vivos
would hold true.
330
Par [236] (emphasis added).
256
explain this submission, it is necessary to quote the relevant parts of their
order:331
1.
2. The definition of "survivor" in section 1 of the Maintenance of Surviving Spouses
Act, 27 of 1990, is to be read as if it included the following words after the
words "dissolved by death"-
"and includes the surviving partner of a permanent heterosexual life
partnership terminated by the death of one partner in which the
partners undertook reciprocal duties of support and in circumstances
where the surviving partner has not received an equitable share in the
deceased partner's estate."
3.
4. Section 1 of the Maintenance of Surviving Spouses Act, 27 of 1990 is to be read
as though it included the following at the end of the existing definition _
"Spouse" for the purposes of this Act shall include a person in a
permanent heterosexual life partnership;
"Marriage" for the purposes of this Act shall include a permanent
heterosexual life partnership.
5.
Two major difficulties appear to militate against supporting this order. These are:
It is submitted that the inclusion of the words "and in circumstances where
the surviving partner has not received an equitable share in the deceased
partner's estate" is redundant. This is so because the Act already
contains measures by which the merits of the survivor's claim is assessed
and according to which his or her "own means" and "reasonable
331 Par (145) (emphasis and italics added). For the sake of readability and brevity, only the orders
pertaining to "reading in" are quoted. It stands to reason that the omission of the words and
definitions which were to be "read in" was first found to be unconstitutional.
257
maintenance needs" are determined. It was therefore unnecessary for the
Court to introduce any further qualification in this regard. The important
point to bear in mind, therefore, is-as Sachs J pointed out in his order-
that the Act needs to make provision for a surviving cohabitant to pursue a
claim for maintenance. Once pursued, the merits of the claim would then,
as in the case of a surviving spouse, be evaluated with reference to the
criteria already prescribed in the Act. The order proposed by Mokgoro
and Q'Regan JJ would have had the effect of introducing an additional
criterion in the case of a surviving life partner with which a surviving
spouse would not have needed to comply. Consequently, disparate
criteria would be employed to assess claims which were in essence
identical. For this reason it is submitted that the only condition which
Mokgoro and Q'Regan JJ should have imposed is that the life partners
must have undertaken to support one another.
• The second difficulty with the order proposed by Mokgoro and Q'Regan JJ
is that it leads to an interpretative anomaly.
By way of introduction it must be conceded that the Judges correctly found
that the definition of "survivor" as it appears in the Act was
unconstitutional, and, in principle, this finding cannot be faulted.332 In
consequence of the order proposed by Mokgoro and Q'Regan JJ, the
definition of "survivor" would henceforth be read as follows:
"survivor" means the surviving spouse in a marriage dissolved by death and
includes the surviving partner of a permanent heterosexual life partnership
terminated by the death of one partner in which the partners undertook
332
Mokgoro and O'Regan JYs finding is correct in principle, but not with regard to its content. See
the preceding paragraph of the main text where their finding with respect to the "equitable
share" criterion is discussed.
258
reciprocal duties of support and in circumstances where the surviving partner
has not received an equitable share in the deceased partner's estate.333
However, as will be seen below, the matter would not end here as this
definition needs to be read in conjunction with the other definitions
proposed in the same judgment. It is submitted that this process creates
the interpretative anomaly alluded to above.
Mokgoro and O'Regan jj proposed the insertion of definitions of "spouse"
and "marriage"; both of which are simply defined by the two judges as
including "a permanent heterosexual life partnership." These definitions
therefore make no reference to the additional criteria prescribed by the
judges in their proposed definition of "survivor.,,334The problem is that the
definition of "survivor" in the Act in its original form already contains
references to the words "spouse" and "marriage", which means that these
words also have to be read in accordance with the "new" definitions as
proposed in the dissenting judgment. The logical outflow hereof is that the
words "spouse" and "marriage" in the original definition of "survivor" would
henceforth be read so as to include the words "permanent heterosexual
life partnership." Doing so, it is submitted, will have the anomalous
outcome of negating the effect of the additional criteria (namely the
reciprocal duty of support and the equitable share) prescribed by Mokgora
and O'Regan jj.
The anomaly is perhaps best explained by way of a diagram that
illustrates the practical effect of Mokgora and O'Regan jj's dissenting
judgment. In the illustration that follows point 4 of the judges' order is
projected onto the Act's definition of "survivor" in order to explain the full
effect thereof on the latter definition:
333 The words in italics are those which were to be read into the definition in consequence of
Mokgoro and O'Regan JJ's order.
334 See point 4 of the order as quoted above.
259
4. Section 1 of the Maintenance of Surviving Spouses Act, 27 of 1990 is to
be read as though it included the following at the end of the existing
definition -
"Marriage" for the purposes of this Act shall ïncJLig~flqlB.~fin@,.1!~~:~
-
[ïlïg!~~r6~~f,g1jI1JéjIR~:E£6el1~d;iPss:lolved by death and includes the surviving
partner of a permanent heterosexual life partnership terminated by the death of
one partner in which the partners undertook reciprocal duties of support and in
circumstances where the surviving partner has not received an equitable share in
the deceased partner's estate.
If one compares the shaded text with that which is italicised, it becomes
clear that the additional criteria (i.e. the reciprocal duty of support and the
equitable share) which were imposed on the definition of "survivor" by the
Court were not imposed on the proposed definitions of "spouse" and
"marriage." Moreover, the words "and includes" imply that the additional
criteria are no longer essential, but that life partnerships which indeed
comply with these criteria merely constitute a supplementary category of
life partnership. This implies that the definitions suggested by Mokgora
and O'Regan JJ would effectively cancel out the additional criteria which
they had prescribed in order for a heterosexual life partner to qualify as a
"survivor." In other words, it is submitted that the new definitions of
"spouse" and "marriage" as inserted by the judges would automatically
include all permanent heterosexual life partnerships, irrespective of
whether or not they complied with the additional criteria. The effect of the
260
subsequent addition to the definition and the additional criteria contained
therein would therefore be negated. Consequently, it is submitted that it
might have been more effective for the judges to have inserted a definition
of "heterosexual life partnership" in the Act and to have included the
criteria with which such a partnership would have to comply therein. In the
alternative, the judges should have ensured that the definitions of
"spouse" and "marriage" also contained identical and consistent
references to the additional criteria. If this had indeed been the case, the
words "and includes" would have made no difference to the interpretation
of "survivor" as the additional criteria would already have been projected
onto the words "spouse" and "marriage" in the first part of the definition.
No anomaly could therefore arise.
For these reasons, it is proposed that the order suggested by Sachs J (as
amended) reflects the more correct approach. This notwithstanding, for the
purpose of the domestic partnership rubric and its attendant legislation the
conclusion has been reached that the existence of a reciprocal duty of support
during the subsistence of the life partnership is a sine qua non for extending such
a duty beyond the death of one of the partners in respect of claims similar to
those regulated by the Maintenance of Surviving Spouses Act.
3.3.1.3 Critical aspect 3: The anomaly surrounding the perceived
curative effect of the extension sought335
One of the reasons advanced by Skweyiya J for justifying his refusal to extend
the ambit of the Maintenance of Surviving Spouses Act was that it would not
make any meaningful contribution towards improving the position of vulnerable
female cohabitants.r"
335
Also see Und 2005: 117, 118 and 120, 121 for perspicacious comments on this issue.
336
Par [64]. This finding appears under the heading "[v]ulnerability and economic dependence" and
follows directly after Skweyiya J had found the Act neither to infringe the rights of equality nor
dignity. As such, it appears to have been included as something of an afterthought, in order to
261
The gist of this contention was that it was the absence of legally imposed rights
and obligations during the union-and not the restriction of the benefits of the Act
after its dissolution-that constituted the true reason for the invidious position in
which vulnerable life partners found themselves.337 Widening the scope of the
Act in the manner sought by R would as a consequence do little to combat
vulnerability which "is a widespread problem that needs more than just
implementation of what, [in the case of the illiterate and destitute], would be no
more than palliative measures." 338
It is submitted that this pragmatic approach in terms of which so much weight is
attached to the curative effect of the remedy sought cannot be supported. Two
reasons can be provided in support of this contention:
• Skweyiya J's approach poses an additional hurdle for heterosexual
couples
The interrelationship (if any) between the "alleviation finding" and the test for
fairness needs to be established. The following extract from the judgment is
helpful in this regard:
As I have already said, it is not unfair not to impose a duty upon the estate of a
deceased where no duty of that kind arose by operation of law during the lifetime of
that person. I have a genuine concern for vulnerable women who cannot marry despite
the fact that they wish to and who become the victims of cohabitation relationships. I
do not think however that their cause is truly assisted by an extension of section 2(1) of
the Act or that vulnerable women would be unfairly discriminated against if this were
bolster the finding already reached. The only indication of the fact that it is somehow linked to
the test for fairness is the statement that "I do not think however that their cause is truly
assisted by an extension of section 2(1) of the Act or that vulnerable women would be unfairly
discriminated against if this were not done" (emphasis added).
337 Par [65].
338 Par [66].
262
not done. The answer lies in legal provisions that will make a real difference to
vulnerable women at a time when both partners to the relationship are still alive.339
The word "or" in the penultimate sentence of this extract seems to indicate that
the question as to whether the cause of vulnerable women is assisted is
independent from the test for fairness. In other words, Skweyiya j does not view
the "alleviation finding" as part of the test for fairness, but rather as an
independent factor (that, in this case, could conveniently be used to bolster his
finding).
This notwithstanding, the difficulty with such an "add-on" factor is that it was
never considered in the same-sex cases that involved comparable legal issues.
Consequently, it is an additional hurdle that has been placed before heterosexual
life partners which same-sex couples requesting similar relief have never been
required to overcome. In order to explain this contention, it is useful to quote the
general idea behind Skweyiya j's finding:
I agree that [vulnerable women in cohabitation relationships] suffer considerably. But it
is not the under-inc/usiveness of section 2(1) which is the cause of their misery. The
plight of a woman who is the survivor in a cohabitation relationship is the result of the
absence of any law that places rights and obligations on people who are partners within
relationships of this kind during their lifetimes. I accept that laws aimed at regulating
these relationships in order to ensure that a vulnerable partner within the relationship is
not unfairly taken advantage of are appropriate.
Same-sex couples have also been acknowledged to be a vulnerable minority in
society,340 and it is therefore submitted that Skweyiya j's argument applies
mutatis mutandis to such couples. For example, in Du Plessis v Road Accident
339 Par (68) (emphasis added).
340 See for example National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA
6 (CC) at par (25) and (26)(a) and National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs 2000 (2) SA 1 (CC) at par (42)- (44).
263
Fund, it was not the under-inclusiveness of the common law that was "the cause
of [the appellant's] misery", but also "the absence of any law that places rights
and obligations on people who are partners within relationships of this kind
during their lifetimes." Nevertheless, this fact was never mentioned in Du Plessis
as a potential barrier to the extension sought.
• Skweyiya j's approach loses sight of the significance of incremental
change in constitutional matters
The Constitutional Court has on a number of occasions emphasised that the
equality doctrine should be allowed to develop incrementally after a careful
consideration of the context of each case.341 Furthermore, other Courts have
also been quick to acknowledge the salutary effects of incremental changes that
align the law with the needs of society.342
While it must be acknowledged that the relief sought by R in this case would
hardly eradicate gender inequality in all its forms, it is submitted that the majority
decision in Volks once again shifts the goal-posts for heterosexual couples by
taking factors into account that were not considered in the same-sex cases. For
example, if one considers the facts in Satchwell (1),343most would agree that it
could never seriously have been contended that extending the scope of the
Judges' Remuneration and Conditions of Employment Act 344would eradicate all
inequality faced by same-sex couples. Furthermore, it is self-evident that the
341
See Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) at par [20] per Ackermann,
O'Regan and Sachs JJ where it was stated that: "[Tjhis Court should be astute not to lay down
sweeping interpretations at this stage but should allow equality doctrine to develop slowly and,
hopefully, surely. This is clearly an area where issues should be dealt with incrementally and on a
case by case basis with special emphasis on the actual context in which each problem arises."
Also see Harksen v Lane NO and Others 1998 (1) SA 300 (CC) at par [41] and [124] (the latter
forming part of Sachs J's dissenting judgment). Devenish (2005: 331) also emphasises the
importance of the prudent and vigilant development of constitutional law.
342
For example, within the context of developing the common law, see Du Plessis v Road Accident
Fund 2004 (1) SA 359 (SCA) at par [37].
343
2002 (6) SA 1 (CC).
344
88 of 1989.
264
number of same-sex couples who stood to be affected by the extension of the
Act would be negligible (and without a doubt would have been far fewer than
those who potentially could be benefitted by the development sought in Volks).
Simply put, the extension requested in Satchwel/ (1) was no more of a "palliative
measure" than that sought in Volks. Nevertheless, the Court in Satchwel/ (1) was
prepared to grant the extension without any references whatsoever to the scale
of the beneficial consequences thereof. This begs the question as to why it was
necessary to attach so much weight to this consideration in one case but not in
the other. Indeed, a rigid application of this approach to earlier case law in which
the constitutional validity of legislation or a common law principle (other than the
common law definition of marriage )345 was tested would lead to the absurd
conclusion that, as the vulnerability of homosexual persons was not caused by
the law or legislation in question, such law could never be unfair due to the fact
that the vulnerability could be attributed to a bigger problem, namely the
prohibition of same-sex marriage.346
In conclusion, it is respectfully submitted that Skweyiya J's reliance on the
"vulnerability and economic dependence" of female life partners in order to justify
345
None of these earlier cases expressly questioned the validity of the common law definition of
marriage. As seen in Chapter 3 this matter was however eventually raised in the Fourie cases,
namely Fourie And Another v Minister of Home Affairs and Another (The Lesbian and Gay Equality
Project intervening as amicus curiae) unreported judgment of the High Court in Pretoria; Case No
17280/02 delivered on 18 October 2002; followed by an application for direct appeal to the
Constitutional Court (reported as Fourie And Another v Minister of Home Affairs and Another
2003 (5) SA 301 (CC)); followed by an appeal to the Supreme Court of Appeal (reported as Fourie
And Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA)) and culminating in an
appeal and cross-appeal to the Constitutional Court in Minister of Home Affairs and Another v
Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay
Equality Project and Others v Minister of Home Affairs and Others 2006 (1) SA 524 (CC).
346
An example of this can be found in Satchwell (1) at par [22) where Madala J states that: "The
benefits accorded to spouses of Judges by the legislation are accorded to them because of the
importance of marriage in our society and because Judges owe a legal duty of support to their
spouses. In terms of our common law, marriage creates a physical, moral and spiritual
community of law which imposes reciprocal duties of cohabitation and support. The formation
of such relationships is a matter of profound importance to the parties, and indeed to their
families and is of great social value and significance. However, as I have indicated above,
historically our law has only recognised marriages between heterosexual spouses. This
narrowness of focus has excluded many relationships which create similar obligations and have a
similar social value" (emphasis added).
265
his finding is unconvincing and inconsistent with other case law dealing with
similar issues. Perhaps Lind347 summarises this strange state of affairs best
when he states that:
While [the majority of the Court) were prepared to acknowledge the invidious gender
based inequality operating in South Africa they perceived the task of alleviating that
inequality to be so great-in the context of family relationships, at least-that they
withdrew from their role in producing a solution... However, the laws that were
deemed to be appropriate were to be moulded by the other institutions of the state.
The courts would play no part in the formative stages of the legal framework. And yet
the Constitution sets up a judicial mechanism to assist the state to reverse historic
trends of inequality. Judges ensure compliance with the Bill of Rights. Policy-makers
and legislators may have to design a legislative and regulatory framework, but the Court
has to determine whether or not that framework operates within acceptable-
constitutional-bounds. While the role of government and parliament may be greater
than the role of the courts, the courts should not abdicate their role.
3.3.1.4 Critical aspect 4: The true ambit of the term "permanent life
partnership"
This aspect involves somewhat of a technical contention which, it is conceded, is
based largely on semantics but is nevertheless worth exploring. In a nutshell, the
issue is whether both Courts in Volks correctly interpreted the meaning of the
phrase "permanent life partnership" and hence whether the ambit and
implications of this phrase were fully appreciated.
If the judgment of the Court a quo348 is considered, it becomes clear from the
outset that R challenged the unconstitutionality of the Maintenance of Surviving
Spouses Act on the basis that it did not provide for the survivor of the "permanent
life partnership" to claim for maintenance. In casu, Davis J stated that R had:
347 2005: 118.
348
Robinson and Another v Valks NO and Others 2004 (6) SA 288 (C).
266
characterised the relationship "as a permanent life or domestic partnership" or as a "de
facto monogamous relationship, also known and referred to herein as a permanent life
partnership or domestic partnership.,,349
There can accordingly be no doubt as to the terminology used in the case. The
issue as to the full extent of the relief sought in the Court a quo however
becomes more problematic when one considers Davis j's description of the crux
of the applicant's case as being (as an alternative to a straight-out declaration
that she was entitled to lodge a claim in terms of the Act) a request for a
declaration to the effect that the Act was unconstitutional to the extent that "the
life partnership" was excluded from the definition of "survivor" as it appeared in
the ACt.350 This creates the impression that the relief sought was limited to the
life partnership in which R was involved, which, quite clearly would imply that the
relief sought would in its widest sense include heterosexual relationships only.
However, as far as the proposed definitions of "spouse" and "marriage" were
concerned, the applicant apparently requested that they be defined as including
a person "in a permanent life partnershlpr'" a declaration which, it is submitted,
could be interpreted to include all life partnerships as opposed to only the one
which existed between Rand S. The confusing use of the definite and indefinite
articles therefore places the extent of the relief sought in doubt.
This state of affairs becomes even more interesting when one analyses the
eventual order granted by Davis j in which he refers throughout to "a permanent
life partnership.,,352 Therefore, in contrast with the inconsistency that appears
earlier in the judgment, the order of the Court of first instance appears to extend
to all life partnerships, as opposed only to the one that existed between the
deceased and R.
349 At 290 (F) - (G).
350 At 291 (D) - (E).
351 At 291 (E) - (F).
352 At 302 (E) - (J).
267
At this juncture it is useful briefly to revisit the content of the concept "life
partnership." In their chapter dealing with this topic, Cronjé and Heaton353state
that while much of the terminology traditionally employed to describe
relationships outside of marriage354refers only to heterosexual couples, the term
"life partnership" is capable of encompassing both heterosexual and homosexual
relationships. There is also support for this contention in the form of case law.
For example, in Satchwell (1p55 and in J and Another v Director General,
Department of Home Affairs, and Others 356the term was used within the context
of gay and lesbian as well as heterosexual couples. There can consequently be
no doubt that-as seen in Chapter 4 above-the term "life partnership" can in
principle include both heterosexual and homosexual permanent relationships.
Furthermore, it is important to note that while all of the same-sex cases expressly
limited the scope of their extensions to same-sex couples,357 the Cape High
Court's order in Volks in no way indicated that it was limited to the survivors of
heterosexual life partnerships. Therefore, by failing to limit its order to couples of
the opposite sex, it is submitted that the Cape High Court's order could prima
facie be construed as including both heterosexual and homosexual couples
within its ambit.
With this information in mind, the majority judgment of the Constitutional Court
can now be considered. The judgment commenced with a summary of the
issues before the Court which Skweyiya j elucidated thus:
353 2004: 227.
354
These terms (discussed in detail in Chapter 4 above) include terms such as "living together",
"concubinage" and "de facto marriage."
355
2002 (6) SA 1 (CC) at par [9] and [16].
356
2003 (5) SA 621 (CC) at par [19].
357
See for example National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000
(2) SA 1 (CC) inter alia at par [1] and par [60]; Satchwell (1) 2002 (6) SA 1 (CC) at par [1] and [10];
Du Plessis v Rood Accident Fund 2004 (1) SA 359 (SCA) at par [42] and [43]. In the context of
constitutional issues other than those premised on or dealing with the existence of a reciprocal
duty of support, see J and Another v Director General, Department of Home Affairs, and Others
2003 (5) SA 621 (CC) at inter alia par [7]; [10]; [15]; [19]; and [28]; Du Toit and Another v Minister
of Welfare and Population Development and Others (Lesbian and Gay Equality Projects as Amicus
Curiae) 2003 (2) SA 198 (CC)at inter alia par [17] and [44].
268
The first respondent (Mrs Robinson) contends that the survivor of a stable permanent
relationship between two persons of the opposite sex who had not been married to each
other during their lifetime, but nevertheless lived a life akin to that of husband and wife,
should be afforded the same protection that is afforded to the survivor of a marriage
under the provisions of section 2(1) of the [Maintenance of Surviving Spouses) Act.358
In the very next paragraph Skweyiya J stated that:
The central question for consideration in this matter is whether the protection which
the Act affords to a "survivor" should be withheld from survivors of permanent life
partnerships. The High Court (Cape Provincial Division) found that the exclusion of the
surviving partner of a permanent life partnership from the ambit of the Act was
unconstitutional. The present proceedings [ollow from that order.359
Bearing in mind, first, that the order of the Court a quo had simply referred to a
"permanent life partnership", and, second, that this term may in principle include
both heterosexual and homosexual relationships, it becomes clear that Skweyiya
J's elucidation contains a discrepancy that could lead to potential difficulty: In the
first extract, the learned Judge limits the scope of the proceedings to
heterosexual life partnerships, while in the second he twice refers to "permanent
life partnerships" without any reference to a limitation as far as gender or sexual
orientation is concerned. Indeed, the learned Judge appears inadvertently to
confirm the lack of limitation regarding gender or sexual orientation both in
summarising the order of the Court a quo and in his subsequent rejection of the
admissibility of further evidence in the confirmation proceedings regarding
polygynous unions and the vulnerability of women. In the latter regard Skweyiya
J emphasised that
[t]he [further) evidence is not directly relevant to the issue before us. That issue is
whether the protection afforded to survivors of marriage under section 2(1) of the Act
358 Par [1] (emphasis and italics added).
359 Par [2] (emphasis added and footnotes omitted).
269
should be extended to the survivors of permanent life partnerships. The admission of
the evidence would impermissibly broaden the case before us. It cannot be
admitted.360
Again, it is noteworthy that no reference to gender or sexual orientation appears
in this extract. If the truth be known, the only instance in which the Court was
specifically requested to pronounce on heterosexual life partners only was within
the context of the interpretation of the Act. In this regard it is submitted that the
majority decision was correct in holding that R's first contention in terms of which
it was alleged that the Act could be "interpreted so as to include heterosexual
cohabitants" had to fail.361 This finding however has no bearing on the
alternative relief sought by R, in terms of which the Court was requested to
confirm the Act's unconstitutionality due to its failure to provide for "permanent
life partnership[s].,,362
The Constitutional Court therefore appears to have lost sight of the fact that-as
explained in the preceding discussion-the term "permanent life partnership" is,
in the absence of further qualification, gender-neutral. This point can be
illustrated by the following extract from the judgment:
The question for determination in this case is whether the exclusion of survivors of
permanent life partnerships from the protection of the Act constitutes unfair
discrimination. The Act draws a distinction between married people and unmarried
people by including only the former. We are not concerned with the exclusion of
survivors of gay and lesbian relationships, nor are we concerned with survivors of
polygynous relationships.363
360 Par [35].
361 Par [40].
362 Par [46].
363
Par [49] (emphasis added).
270
Despite Skweyiya j's statement to the effect that homosexual relationships were
not relevant to the matter at hand, the fact remains this is not reflected in the
order of the Court of first instance. This extract therefore serves to highlight the
Constitutional Court's failure to take cognisance of the fact that "gay and lesbian
relationships" can also constitute "permanent life partnerships" and that, in the
absence of a qualification regarding gender, the term must be presumed to
include both groups. Unfortunately neither this possibility nor its implications
were ever appreciated by the Constitutional Court in the confirmation
proceedings.
The inevitable conclusion in this regard is that the Constitutional Court should
from the outset have expressed its concern over the unsatisfactory phraseology
adopted by Davis j in the Court a quo. The fact remains that an express
limitation of the order to heterosexual permanent life partnerships was required.
Indeed, once the wider meaning of an unqualified reference to a "permanent life
partnership" is properly understood, an interesting theoretical conundrum
presents itself in that the Court a quo's decision could be interpreted so as to
include homosexual couples as well. This would immediately imply that, in the
confirmation proceedings, the "philosophical premise,,364 underlying the
Constitutional Court's majority judgment-in the form of the so-called "choice
argument"-would be broadsided by the fact that that same Court had earlier
found this argument to be "true only as a meaningless abstraction" as far as
homosexual couples were concerned (who, at the time, were not capable of
marrying one another).365 This could lead to the absurd consequence that the
majority decision's finding that the Act did not discriminate unfairly could, at
best,366apply to heterosexual couples but not to their same-sex counterparts;
364 See Sachs J's minority judgment at par [154).
365 See National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
at par [38) and Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1
(CC) at par [16).
366
That is to say disregarding the criticism already levelled at the reasoning in this judgment earlier
in this Chapter.
271
with the obvious implication that the Act would be unconstitutional as far as one
group was concerned but not the other.
While it is true that too much should not be read into this theoretical conundrum
as it is extremely unlikely that it would ever present itself in practice, it is
submitted that, if nothing else, it emphasises the importance of the accurate use
of terminology.
3.3.2 Conclusions and suggestions in the light of the critical aspects
highlighted in respect of Volks
3.3.2.1 The contractual duty of support
The majority decision in Volks failed to acknowledge the existence (and, as a
result, failed to appreciate the significance) of a contractual duty of support
between heterosexual life partners. In addition, this judgment is clearly
irreconcilable with earlier judgments dealing with factual duties of support, where
the Courts have readily found that the existence of such a duty could be inferred
from the facts of the matter at hand. The fact that this earlier case law dealt with
homosexual as opposed to heterosexual couples is irrelevant as gender has no
bearing on the capacity of two persons to enter into an agreement to support one
another. On this count, the judgment must be criticised for the fragmented and
inconsistent legal position that it has created.
At this point therefore, the first conclusion regarding the Volks decision can be
made:
The existence of a reciprocal duty of support between life partners is the key
factor in determining whether a duty of support that existed inter vivos could be
extended posthumously. This finding must, as seen above, be borne in mind
272
when modifying the draft Domestic Partnerships Bill, 2008 in accordance with the
domestic partnership rubric.
3.3.2.2 The "choice argument" and the reciprocal duty of support:
Developing the "contextualised choice model"
At the time of delivering the judgment in 2005, one area in which it could certainly
have been argued that the Court could legitimately distinguish between
homosexual and heterosexual cohabitants would be as far as choice to marry
was concerned. At that time the so-called "choice argument" entailed that only
heterosexual life partners had (and always had had) the option of marriage
available to them but, as they had chosen not to marry, they had to bear the
consequences of this decision.
To begin with, it must be remembered that this argument formed the cornerstone
of the majority decision in Volks.367 In addition, another aspect which must
certainly be noted is the fact that marriage has, subsequent to the decision in
Volks, become available to same-sex couples as well. Prior to this development,
authors such as Currie and De Waal368 expressed the opinion that:
If same-sex marriage or a form of registered partnership became available the same
reasoning [as that employed by the majority judgment in the Volks case) would apply to
gay people who opted merely to cohabit.
As seen in 3.3.1.1 above, it is submitted that this argument cannot without more
be used to justify the refusal of the extension of the rights and obligations
traditionally associated with civil marriage to life partners, whether of the same or
367 See Sachs J's minority judgment at par [154].
368 2005: 256 (at note 107).
273
opposite sex.369 A nuanced and flexible approach, that takes the dynamics and
realities of South African society into consideration, is required. In this regard it
is suggested that the approach suggested by Gonthier J in the Supreme Court of
Canada case of Nova Scotia (Attorney General) v Walsh 370 (in terms of which a
distinction is made between property disputes and claims based on need) is to
be recommended as a point of departure for adjudicating similar disputes in
South Africa.371
In the Walsh case Gonthier J expressed the opinion that:
To invoke s. 15(1) of the [Canadian Charter of Rights and Freedoms] to obtain spousal
assets without regard to need raises the spectre of forcible taking in disguise, even if, in
particular circumstances, equitable principles may justify it.372
Section 15(1) of the Canadian Charter of Rights and Freedoms states that:
Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability.
While section 9 of South Africa's Constitution, 1996 is more encompassing than
its Canadian counterpart as far as the listed grounds of unfair discrimination are
concerned":' it is submitted that the opinion expressed by Gonthier J will also
369
Also see the discussion in 3.4.1 below of Wood-Bodley's criticism of the application of the
"choice argument" to homosexual couples who, despite now being legally permitted to do so,
elect not to marry one another.
370
2002 SCC83, 32 R.F.L. (5th) 81, 221 D.L.R. (4th) 1, 211 N.S.R. (2d) 273, 102 C.R.R. (2d) 1, [2002) 4
371 S.C.R.325, 297 N.R. 203, 659 A.P.R. 273, REJB2002-36303, H. 2003-102.
Gonthier J's distinction was referred to with approval in the British Columbia case of M.A.S. v
F.K.M. 2003 BCSC849 (CanLIl) at par 62. It has not been criticised in any reported case of which
the author is aware.
372 Par 204.
373
See section 9(3): "The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social
274
hold true in a South African context. Consequently, the failure of the law to
permit asset distribution (that is to say claims other than need-based claims)
between life partners to take place in the same way as for married partners
would not necessarily constitute a violation of the right to equality. 374
Therefore it is preliminarily75 submitted that if the extension sought by a life
partner who has clearly chosen not to formalise his or her relationship by
marriage or civil union is based on a property dispute (division of assets), a
presumption should apply to the effect that the "choice argument" is relevant, for,
as Sachs j put it "merely choosing to cohabit [is] insufficiently indicative of an
intention by cohabitants to share and contribute to each other's assets and
liabilities.,,376 In such an instance the "choice argument" would be a highly
persuasive factor in deciding to exclude the possibility of applying matrimonial
(property) law to solve the dispute; as a consequence of which the ordinary
principles of the law of obligations would determine the matter. However, the fact
that the law of obligations does not currently provide the ideal structure for the
regulation of such claims between life partners (this issue is discussed in detail in
Chapter 6) provides ample evidence of the dire need for legislative intervention in
this regard.
Should the extension sought be based on need (support), the "choice argument"
would not be relevant, and the enquiry would then be whether or not a reciprocal
duty of support was expressly or tacitly undertaken between the parties. This
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language
and birth."
374
This conclusion is borne out by the positive law position as dictated by Volks NO v Robinson 2005
(5) BCLR446 (CC) where the majority of the Court was prepared-on the basis of the "choice
argument"-to hold that the denial of a claim based on need to the surviving cohabitant did not
constitute a violation of the right to equality. It is submitted that, in the light of this approach, a
Court would in future be hard-pressed to find that the non-application of matrimonial property
law to a property-based claim between cohabitants was unconstitutional.
375
It is important to note that this is only a preliminary conclusion that is revisited and revised after
an assessment of the draft Domestic Portnerships Bill, 2008 (see 7.3.4.2 and 11.6 in Chapter 7).
376
See the Volks case at par (158).
275
criterion would be decisive in determining whether or not the claimant's need was
within sufficient proximity of the other life partner's estate.
It is submitted that this conclusion provides an objective criterion for adjudicating
the permissibility of all claims based on need. It explains, therefore, why a non-
intimate life partnership in the narrow sense should be regarded as such for the
purposes of this study and why the surviving partner to such a life partnership
should also, provided that he or she could prove the existence of a reciprocal
duty of support, be entitled to a claim for maintenance from the deceased estate.
The model described above will henceforth be referred to as the "contextualised
choice model."
It is submitted that this model is of considerable value as far as the domestic
partnerships rubric is concerned. It is however important at this point to
emphasise that the model as structured above is merely of a preliminary nature.
As such it will, where necessary, be adapted or revised as this study progresses.
3.3.2.3 Terminology
The third conclusion that can be drawn in the light of the Volks judgments is the
importance of the correct use of terminology. As seen in this case, the term
"permanent life partnership" is capable of applying to both heterosexual and
homosexual couples and therefore should not be used without proper
qualification.
3.3.2.4 The positive law position
Despite the criticism and the suggestions explained above, it is important to
remember that, unless apposite life or domestic partnership legislation is
276
enacted,"? the positive law position will remain that heterosexual life partners do
not owe each other a reciprocal duty of support unless such a duty has been
contractually undertaken. In this regard the current legal position is that:
Any undertakings of mutual support must be created expressly as no
authority exists to support the possibility that such an undertaking may be
inferred from the facts of a case;
However, even if such a duty of support is specifically undertaken, doubt
persists as to the extent to which it will be recognised. Therefore,
although it has been pointed out that there should in principle be no
distinction between the enforceability of a contractual as opposed to an ex
lege duty, and, furthermore, between the level of recognition granted to
such a contractual duty between same-sex as opposed to opposite sex
couples, the legal position remains, as Cronjé and Heaton378 point out,
that even if an unmarried heterosexual couple were to undertake mutual
support obligations, the surviving partner would, for example, have no
claim for damages for loss of support against a third party who injured or
killed that partner's breadwinner.
Although certain legislative enactments in recent years, have, however,
gone beyond the narrow confines of Court orders and hence removed the
distinction between heterosexual and homosexual life partners, these
developments have been few and far between.379
In the end result the inconsistent legal position created by the Volks case serves
to underscore the necessity for the legislation developed according to the
domestic partnership rubric to exist alongside marriage and to provide a
377
See Gory v Kolver NO 2007 (4) SA 97 (CC)at par [27]- [29], discussed in 3.4.1.1.3 below.
378 2004: 230 and 232.
379
See for example, the definition of "partner" in the Judges' Remuneration and Conditions of
Employment Act 47 of 2001 and the definition of "dependant" in the Medical Schemes Act 131of
1998. These and other legislative developments are discussed in Chapter 6.
277
consistent legal framework as far as gender is concerned for both non-formalised
and formalised unions. Therefore it is somewhat of a paradox that while Lind380
is correct in stating that the majority of the Court in Volks elected to play no part
in the "formative stages" of "the laws aimed at regulating [life partnerships]", the
lessons that have been learnt from the various judgments in this case will in fact
play a cardinal role in modifying the Domestic Partnerships Bill of 2008 in
accordance with the domestic partnership rubric.
3.4 Further developments pertaining to the existence and role of a
reciprocal duty of support in homosexual relationships
3.4.1 The role of the reciprocal duty of support within the context of a
claim for intestate succession
3.4.1.1 Introduction: The Gory case
A case that was decided after the South African Law Reform Commission's 2006
Report appeared and which has been the subject of some debate in recent
times381 is the case of Gory v Kolver NO and Others (Starke and Others
Intervening).382
In this case, the very fact as to whether or not the deceased (8) and his male
partner (the applicant) had been involved in a permanent life partnership in terms
of which reciprocal duties of support had been undertaken was disputed by the
parents of the former, who claimed that they were the sole heirs of their son's
estate after he had died without leaving a will in 2005.383 This dispute was
380 2005: 118.
381
See Whittle 2008: 19 for some reactions to a (now discarded) proposal to amend the Intestate
Succession Act 81 of 1987 in accordance with the finding in this case. The proposed amendment
is dealt with in the notes to 9.3.2 in Chapter 7.
382
2007 (4) SA 97 (CC); 2007 (3) BCLR294 (CC).
383
See the judgment of the Court a qua (reported as Gory v Kolver NO and Others 2006 (5) SA 145
(T)) at par [4) and [17). The parties had cohabited as from June 2004 until the deceased's death
278
resolved by the Court a quo (per Hartzenberg J) who expressed no reservation in
finding that the existence of both the relationship and the duty had been placed
beyond doubt.384 As this finding was not disputed in the confirmation
proceedings it need not be addressed in any further detail, save to emphasise-
once again-the readiness with which the Courts of both first and final instance
were prepared to infer the existence of such a duty and to attach due significance
thereto.385 The core issue in this case however revolved around the
constitutionality of section 1(1) of the Intestate Succession Act 81 of 1987, which
did not make provision for an intimate partner other than the surviving "spouse"
of the deceased to inherit intestate.386
Although the Court a quo did not say this in as many words, it is fairly obvious
that the existence of a reciprocal duty of support was regarded as being
fundamental to the applicant's case.387 The existence of this duty having been
established, the Court commenced with its enquiry into the constitutional validity
of the impugned section of the Act.388 After referring to earlier judgments in
which the position of same-sex life partners had received systematic
recognition,389the Court a quo concluded that
on 30 April 2005, which is a relatively short period of time (see par [5] of the Court a quo's
judgment). From this Wood-Bodley 2008(b): 262 deduces that a long period of cohabitation is
not essential for proving that the parties intended their relationship to be of a permanent nature.
However, as will be seen throughout this Chapter, the existence of a reciprocal duty of support is
a far more significant factor in respect of the type of claim sought by the applicant.
384 See the judgment of the Court a quo (reference in the preceding note) at par [18].
385 See the judgment of the Court a quo (reference in note 383) at par [18] and the judgment of the
Constitutional Court (reference in note 382) at par [2]; [40] and [51].
386 See the judgment of the Court a quo (reference in note 383) at par [1] and the judgment of the
Constitutional Court (reference in note 382) at par [1].
387 See the judgment of the Court a quo (reference in note 383) at par [1]; [4] and [18].
388 See the judgment of the Court a quo (reference in note 383) at par [18].
389 The cases referred to by Hartzenberg J were Langemaat v Minister of Safety and Security 1998
(3) SA 312 (T); National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2)
SA 1 (CC); Satchwel/ v President of the Republic of South Africa 2002 (6) SA 1 (CC); Du Toit v
Minister of Welfare and Population Development 2003 (2) SA 198 (CC); J v Director General,
Department of Home Affairs 2003 (5) SA 621 (CC); Farr v Mutual and Federal Insurance Co Ltd
2000 (3) SA 684 (C); and Du Plessis v Raad Accident Fund 2004 (1) SA 359 (SCA).
279
lilt is evident from all these decisions that by 30 April 2005 [the date of the deceased's
death] it was generally accepted that lifelong same-sex relationships deserved the same
protection as heterosexual marriages. Insofar as statutory provisions did not afford
such relationships the same protection, those provisions were held to be inconsistent
with the Constitution.390
This being so, Hartzenberg J held that the answer to the question as to whether
or not the Act discriminated against the applicant became clear when it was
considered that the applicant could only have been entitled to a portion of B's
estate if he and B had either entered into a "written universal partnership
agreement" or had benefitted one another by way of a testamentary
disposition.j'" a state of affairs that clearly discriminated against the applicant
and his deceased partner as they would have come under the purview of section
1(1) if they had been a "heterosexual couple.,,392 It is submitted that this
statement should be read with caution. This is so because it is not correct to
state that section 1(1) would apply if the parties concerned had been a
"heterosexual couple." Instead, it would be more correct to state that the
provision would only have applied if the parties in question had at the time been
a heterosexual couple who had married one another in terms of civil, customary
or Islamic religious law.393 In the absence of such a formal wedding, the fact that
the heterosexual couple had presented each other with "wedding bands" and
publicly announced their "marriage" (as the homosexual couple in casu
apparently had done) would therefore be irrelevant. Nevertheless, it is
undoubtedly true that Hartzenberg J was correct in concluding that the Act
indeed discriminated against same-sex permanent life partners.
390 Par [19] (footnote omitted).
391
In mentioning that these examples (which were made in the second and third respondents'
answering affidavit) "graphically illustrated" why the Act discriminated, it can be assumed that
the learned Judge did not doubt their correctness. The relevance hereof will become apparent
when the universal partnership is discussed-see Chapter 6.
392 Par [22].
393
The latter development was occasioned by the decision of the Constitutional Court in Daniels v
Campbell NO 2004 (5) SA 331 (CC). Note that the possibility of entering into a civil partnership is
not mentioned simply because the option was not available at the time of the judgment.
280
The crux of the High Court's decision was that the Act was declared to be
unconstitutional to the extent that it did not permit a spouse "or partner in a
permanent same-sex life partnership in which the parties have undertaken
reciprocal duties of support" to inherit intestate, but that the order would not affect
intestate estates that had been finally wound up at the date of the order.394
As already stated above, the factual finding of the High Court regarding the
relationship that existed between the deceased and applicant was not disputed in
the confirmation proceedings, and the significance of both Courts' findings in this
regard has already been highlighted above. For the purposes of this study, four
further issues are relevant, namely (i) the Constitutional Court's finding regarding
the unconstitutionality of section 1(1) of the Act; (ii) the retrospective impact of
the relief granted; (iii) the Court's statements regarding the impact of the
validation of same-sex marriage on pre-same-sex marriage case law;395and (iv)
the Court's order.
3.4.1.1.1 The Constitutional Court's finding regarding the (un)constitutionality
of the Act
As far as the first issue is concerned, it will suffice to say that the Constitutional
Court unanimously (per Van Heerden AJ) confirmed the High Court's finding that,
in the light of recent jurisprudence regarding homosexual couples, the Act
unjustifiably infringed upon the rights of equality and dignity to the extent that it
failed to provide for the surviving partner to a "permanent same-sex life
partnership" in which mutual maintenance obligations had been undertaken to
inherit intestate.396
394 At 159 (C) - (F).
395 Par [24]- [31].
396 Par [19] and [66] (f) 1 and 2.
281
3.4.1.1.2 Retrospective impact of relief
The second issue deals with the decision made by the Constitutional Court as to
whether the order of unconstitutionality should apply prospectively or not. In this
regard, one of the main arguments in favour of prospective application was that
retrospective judicial interference would deprive persons (such as the deceased's
parents or other family members) of rights which had vested under the legislative
scheme as it prevailed at the date of the deceased's death. While the
Constitutional Court was prepared to acknowledge that the matter at hand was
the first to grapple with the possibility of extending marital benefits to homosexual
partners in such a way as to divest outsiders to the relationship of their rights,
Van Heerden AJ pointed out that similar issues had arisen within the context of
male primogeniture in customary marriages;397 the upshot of which had been to
deprive the original male customary law heirs of rights which were held to have
vested ab initio in the deceased's female relatives.
Moreover, the Court held that the supremacy clause as contained in the interim
Constitution398 (and retained in essence by the Constitution, 1996) invalidated all
law or any Act that was inconsistent with its provisions as from the date of its
coming into operation. This implied that a Court order to the effect that any Act
was unconstitutional served-irrespective of when the cause of action arose-
simply to declare the fact of unconstitutionality that had already prevailed since
midnight on 27 April 1994.399 Although a Court had no option but to declare an
Act to be invalid once unconstitutionality had been established.v" the Court was
nevertheless permitted to restrict the retrospective effect of such an order if the
"interests of justice and equity" so dernanded.f"
397
Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus
Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v
President of the Republic of South Africa and Another 2005 (1) SA 580 (CC); 2005 (1) BCLR1 (CC).
398
Section 4(1) of Act 200 of 1993.
399 Par (39).
400
Section 172 (l)(a) of the Constitution, 1996.
401 Par (39).
282
Van Heerden AJ concluded that it would not be in the interests of justice or equity
to make the order prospective in nature as such an order would, in view of the
facts of the matter and the violation of the applicant's rights of equality and
dignity, deny the applicant any effective relief.402 Viewed in this light, the order of
the Court a quo-in terms of which the retrospective effect of the order was
limited to estates not yet wound up on the date of the judgment-would also not
serve these interests. Instead, Van Heerden AJ expressed her support for the
approach of the Constitutional Court in Bhe and Others v Magistrate,
Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae);
Shibi v Sithole and Others; South African Human Rights Commission and
Another v President of the Republic of South Africa and Another403 (hereafter
"the Bhe case") in terms of which the retrospective effect of the order would
extend to all transfers where the transferee(s) were on notice that a legal
challenge had been brought against the transfer in questlon.t'"
In the final analysis, Van Heerden AJ held that in order to balance the impact of
divesting third parties of their rights with the need to provide the applicant with
effective constitutional relief, it was necessary to grant an order which was
identical to that in the Bhe case both in terms of the limited retrospective effect
described above, as well as in making provision for any interested party to apply
to the Constitutional Court for the variation of the order where "serious
administrative and practical difficulties" justified doing SO.405
3.4.1.1.3 The impact of the validation of same-sex marriage
The third pertinent aspect of the Gory case is the Court's statements pertaining
to the validity of the piecemeal developments occasioned by the Courts prior to
the validation of same-sex marriages in South Africa.
402 Par (40).
403 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC).
404 Par (41).
405 Par (42).
283
As a point of departure it must be remembered that in Minister of Home Affairs v
Fourie 406 the Constitutional Court found the exclusion of homosexual couples
from the institution of marriage to be unconstitutional. Nevertheless, the Court
held that its judgment would be suspended for a period of one year as from the
date of the judgment (1 December 2005) in order to allow Parliament to address
this state of affairs by way of appropriate legislation. If Parliament failed to do so
by 30 November 2006, the order of the Constitutional Court would come into
effect immediately, which would imply that homosexual couples would henceforth
automatically have been permitted to marry in terms of the same marriage
legislation that up to that date had been reserved for heterosexual couples.
The Gory judgment was delivered on 23 November 2006, which was almost a
year after the judgment in Minister of Home Affairs v Fourie407 and only one week
before the deadline imposed by the latter Court. This implies that by the date of
the Gory judgment there was no doubt that same-sex marriage would be
permitted in the near future, but, as the legislation prescribed in Minister of Home
Affairs v Fourie had not yet been forthcoming, the Court in Gory had no way of
knowing either whether any legislation would be promulgated, or, if Parliament
did in fact respond by the deadline, what format this legislative response would
assurne.r" The findings of the Court in Gory need to be viewed against this
backdrop.
To begin with, Van Heerden AJ reiterated the points made in the Fourie
case that (i) both the Legislature and the Courts were free to express
themselves on the continued validity of the piecemeal recognition provided
by the Courts to homosexual couples who at the time were not permitted
to marry; and (ii) that the Fourie judgment was not pre-emptive of any
406 2006 (1) SA 524 (CC).
407
2006 (1) SA 524 (CC).
408
Wood-Bodley 2008(a): 47.
284
future legislation regulating the relationships of persons who, irrespective
of their gender, lived together in conjugal or non-conjugal retationships.r'"
Equally important, Van Heerden AJ expressly stated that "any change in
the law pursuant to Fourie" would not-barring express legislative
amendment-have any effect either on the words that had been read into
statutes by the Constitutional Court in the same-sex cases, or on any
piecemeal recognition provided to same-sex cohabitants by way of
leqislation.t'" "In the interim" there was no reason why the Court in casu
should "[treat] section 1(1) of the [Intestate Succession Act] differently
from legislation previously dealt with by this Court."
It is submitted that Van Heerden AJ's conclusions in this regard cannot be
faulted.":' Consequently, it can be concluded that despite the fact that
same-sex marriages are now permitted in consequence of the
promulgation of the Civil Union Act and that, as a consequence hereof,
same-sex couples now in principle have the choice of marrying one
another, the pre-30 November 2006 piecemeal statutory and judicial
developments still stand until expressly amended by appropriate
legislation.412
3.4.1.1.4 The order
The final noteworthy aspect is the Court's order. In this regard the gist of the
finding (in as far as it is relevant for the purposes of this study) was that the
409
Par [27]. The Court in Fourie did however proffer the general guideline that "whatever legislative
remedy is chosen must be as generous and accepting towards same-sex couples as it is to
heterosexual couples, both in terms of the intangibles as well as the tangibles involved. In a
context of patterns of deep past discrimination and continuing homophobia, appropriate
sensitivity must be shown to providing a remedy that is truly and manifestly respectful of the
dignity of same-sex couples" (at par [153], emphasis added).
410 Par [28].
411
Also see Wood-Bodley 2008(a): 49; De Vos 2007(a): 462.
412
The effect of prospective legislation in the form of the Domestic Partnerships Bill, 2008 on the
pre-30 November 2006 developments will be considered in Chapter 7.
285
words "or partner in a permanent same-sex life partnership in which the partners
have undertaken reciprocal duties of support" were henceforth to be read in after
the word "spouse" throughout section 1(1) of the Intestate Succession Act.413
3.4.1.2 The anomaly created by the Gory case
If the conclusion reached in the preceding paragraph pertaining to the continued
relevance of the pre-Civil Union Act judgments is correct, it becomes self-evident
that an anomaly arises in that, barring further legislative intervention, same-sex
couples who have elected not to marry or to conclude a civil partnership will be
entitled to inherit intestate while their heterosexual counterparts will not.414
Although this is not the only anomaly that has arisen in the wake of the
promulgation of the Civil Union Act,415 this specific anomaly needs to be explored
in further detail for the purposes of this discussion, as there are those who are of
the opinion that no anomaly exists in the first place. For example, Wood-
Bodlel16 questions the very existence of this anomaly on the basis of "a
substantive approach to the right to equauty."?" The thrust of this contention is
that the continued differentiation between same- and opposite sex life partners
as far as the law of intestate succession is concerned could be permitted if it is
borne in mind that, despite the enactment of the Civil Union Act, ongoing
homophobia implies that marriage (or civil partnership) is simply not an option for
many same-sex couptes.t" As Wood-Bodley states:
[This] approach would recognize that although gay and lesbian couples are in theory
able to marry, it would be difficult or unwise for many of them to do so in view of
413 Par [66].
414
See Smith and Robinson 2008(a): 373, 374.
415
See Smith and Robinson 2008(a): 368 et seq and 2008(b): 430 et seq.
416 2008(a): 54.
417
Also see Wood-Bodley 2008(b): 260 and 2008(c): 486.
418
Also see De Vos 2007(a): 463 et seq. In a further contribution Wood-Bodley (2008(c): 483 et seq)
uses the same argument in support of his contention that employee benefits should be retained
for the partners of employees or pensioners involved in post-Civil Union Act same-sex
relationships who have neither married one another nor have entered into a civil partnership in
accordance with that Act.
286
ongoing homophobia in society and the concomitant need for many to remain closeted
to a greater or lesser degree. To be married or in a civil union is to be unrelentingly 'out'
and yet, as Altman observed more than thirty years ago, '[t]he key factor in being a
homosexual in contemporary society is that very few of us do not feel, at least in part,
the need to live a double life' (Dennis Altman Homosexual: Oppression and Liberation 2
ed (1993) 49 (a work originally published in 1971)). This statement remains true today,
notwit. hstan dlmg hhu'ge canges m soci.ety. 419
Although it contains a technical deficiency,420 the general gist of this submission
regarding the effects of homophobia on the "choice aroument"?" is a powerful
one. In support hereof, Wood-Bodley lists a number of examples of homophobia
as encountered or experienced in contemporary South Africa. All of these
examples provide compelling and thought-provoking reading; not least the
reports of complaints being lodged against officials of the Department of Home
Affairs for allegedly refusing to marry and/or insulting prospective same-sex
spouses.v?
On the basis of this argument (which for the sake of convenience may be called
the "homophobia argument"), Wood-Bodley concludes that, with reference to the
finding of the majority of the Constitutional Court in Volks NO v Robinson,423 it is
possible to distinguish the position of same-sex couples who elect not to marry
(or to conclude a civil partnership) from the position of opposite-sex couples who
similarly choose not to do likewise. This is so because "the order of the
419
At 54, 55 (emphasis added). Also see Wood-Bodley 2008(b): 260 and 266 and De Vos 2004: 183
and 198.
420
Wood-Bodley's reference to being "married or in a civil union" is technically incorrect as the term
"civil union" is defined in the Civil Union Act 17 of 2006 as constituting either a "marriage" or a
"civil partnership." Wood-Bodley's statement should therefore rather read "[t]o be married or in
a civil partnership is to be unrelentingly 'out' ..."
421
See the discussion of Volks NO v Robinson 2005 (5) BCLR446 (CC) above.
422
Wood-Bodley 2008(a): 56.
423
2005 (5) BCLR446 (CC).
287
magnitude of the obstacles to marriage or civil union424is so much greater in the
case of same-sex partners than it is for opposite sex partners.,,425
It is submitted that three possibilities present themselves as far as Wood-
Bodley's stance is concerned:
a) The first possibility is that Wood-Bodley's argument is totally incorrect.
Supporters of this contention would immediately argue that the "objective
model of choice"-as Schafer426describes it-dictates that the legalisation
of same-sex marriage implies that the same arguments used by the
majority decision in the Volks case could be used to conclude that no
unfair discrimination could be established where a same-sex couple chose
not to marry one another (or to enter into a civil partnership) despite being
legally permitted to do so. This point of view would also, at face value,
square with Van Heerden Al's acknowledgment in the Gory case that
once the impediment to same-sex marriage was removed "there would
appear to be no good reason for distinguishing between unmarried
heterosexual couples and unmarried same-sex couples in respect of
intestate succession.r''" However, as will be seen below, this argument is
not as clear-cut as it seems and it is submitted that this clinical distinction
between married couples (or civil partners) and unmarried couples cannot
be supported.
b) The second possibility is that Wood-Bodley is correct, and that it would
consequently be permissible to continue to allow same-sex couples who
have not formalised their unions to inherit intestate even after the
424
See note 420 for criticism of this terminology.
425
Wood-Bodley 2008(a): 57.
426
2006: 627 and 640.
427
Par [29]. Also see Sinclair and Heaton 1996: 300 who opine that gay couples who choose not to
marry despite being permitted to do so "should be treated like any other cohabitants."
288
enactment of the Civil Union Act 428while similarly-situated heterosexual
couples would not be permitted to do the same.
As seen above, this argument is premised on Wood-Bodley's postulation
that the ongoing homophobic stigmatisation of same-sex relationships is
sufficient to conclude that in real terms such couples cannot avail
themselves of the choice to formalise their unions.429 It is submitted that
Wood-Bodley's argument in this regard is persuasive, and that one could
agree with him that same-sex couples often, (but not necessarily always),
do not really have the option of marriage or civil partnership available to
them. However, it must be remembered that the same is true of
heterosexual couples, where-as was pointed out in the criticism of the
Volks case above-the option of marriage often also is illusory. In fact,
Bonthuys correctly points out that the same inequalities that often result in
a "choice" not to marry within a heterosexual context will also often apply
to same-sex couples.f" Therefore, although Wood-Bodley insists that
there is a difference between the "choice argument" within the context of
same-sex and opposite sex couples,431 the fact remains that neither of
these groups necessarily has the option of formalising their union open to
them. The fact that the context within which this "choice" may present
428 17 of 2006.
429 Also see Wood-Bodley 2008(b): 260 and 266.
430 2007: 540: "[O]ne of the manifestations of inequality within couples is in the issue of who makes
and who vetoes the choice to marry, which generally favours men. These vulnerabilities and
inequalities can also manifest themselves in same-sex couples, particularly when they adopt
gendered roles in their relationships."
431 2008(a): 59: "[T]he order of magnitude of the obstacles to marriage or civil union is so much
greater in the case of same-sex partners than it is for opposite-sex partners. The basis of
marriage is consent, and that is consent by both partners (Schater [2006: 642]). But with same-
sex partners, the reason for their not marrying need not be that one partner is thwarting the
wishes of the other (ie lack of mutual consent) but that they are practically unable to marry
because ongoing homophobia in society creates an insuperable practical obstacle to their
marriage. This is, I believe, different to the situation of the opposite-sex couple who do not
marry because one of them does not wish to do so, even where the latter's resistance to
marriage is assisted by unequal power relations between them. As Schater has remarked, 'it is
plain that the many hardships imposed by our law and by societal attitudes on same-sex couples
provide a context quite different from that in which differentiation between married and
unmarried heterosexual partners is evaluated' (Schater [2006: 632])."
289
itself may differ is irrelevant. Rather, the critical fact is that, regardless of
the gender of the parties involved, the choice to formalise their union is
often merely theoretical.
This being the case, it is submitted that some form of objective yardstick
needs to be present in order to justify the (continued) extension of one of
the invariable consequences of marriage to persons who live together
despite having the option of marriage or civil partnership available to them,
and, in addition despite the parties not having benefitted one another in
their respective wills. This yardstick, it is suggested, is the presence of a
reciprocal duty of support.
At this point it may be prudent to dispel a number of concerns raised by
Wood-Bodley as to the perceived paramountcy accorded to the reciprocal
duty of support within the context of same-sex unions in recent case law.
For the time being the analysis of the significance of this duty will be
confined to the cases other than Gory, as the application of this duty to the
latter case will be explored fully when the third possibility is evaluated.
Wood-Bodley's first point of criticism is that in National Coalition for Gay
and Lesbian Equality v Minister of Home Affairs,432(which he describes as
the "most useful" case to deal with the recognition433of same-sex unions),
the provision of mutual "financial support" was listed as merely one of a
host of factors to consider in order to recognise such a union, and that the
Court had expressed the view that none of these factors "[was]
indispensable for establishing a permanent partnership.,,434 Accordingly,
Wood-Bodlel35 opines that the tendency in subsequent case law of
432 2000 (2) SA 1 (CC).
433
Wood-Bodley (2008(b): 259) explains that he uses the term "recognition" in the sense of
"indicat[ing) that one or more legal rights or duties have been held to accrue to a partner in a life
partnership by virtue of that relationship ..."
434 Par (88).
435 2008(b): 268.
290
placing a premium on mutual undertakings of support over the other
factors enumerated by the Court in the Home Affairs case conflicts with
this decision.
In this regard, it is submitted that Wood-Bodley loses sight of one crucial
aspect, namely that the list of factors which Ackermann J enumerated was
mentioned with a view to ascertaining the permanence of the relationship.
It does not follow from this that a subsequent Court would not be permitted
to place additional emphasis (or even pre-eminence) on any (additional)436
factor which it deemed to be pivotal for the purposes of permitting a
specific claim or extending a consequence of marriage to life partners.i"
Indeed, this Chapter has highlighted the fact that all of the case law in
which the existence of such a duty was deemed to be crucial has involved
claims in which a link between the existence of a reciprocal duty of
support and the particular claim sought was fairly obvlous.t" On the other
hand, the extension sought in National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs was not comparable with any of these
cases as the issue in that case (immigration rights) was not even remotely
linked to the issue of mutual support between the parties involved.
The second objection raised by Wood-Bodley is that the reciprocal duty of
support is an automatic invariable ex lege consequence of marriage that is
not dependent on any undertaking to this effect by the spouses involved.
In this regard he hastens to explain that:
436 Ackermann J pointed out that the list was not all-inclusive-see par [88].
437 In point of fact Ackermann J appears to have intended the list of factors only to apply within the
context of the matter in casu (i.e. the constitutionality of the Aliens Control Act 96 of 1991):
"Whoever in the administration of the Act is called upon to decide whether a same-sex life
partnership is permanent, in the sense indicated above, will have to do so on the totality of the
facts presented ..." (emphasis added).
438 See for example Du Plessis v Raad Accident Fund 2004 (1) SA 359 (SCA); Satchwell (1) 2002 (6) SA
1 (CC) and the minority judgment of Mokgoro and O'Regan JJ in Volks NO v Robinson 2005 (5)
BCLR446 (CC).
291
I am not suggesting that gay and lesbian couples in a permanent same-sex
partnership which is recognized by law should escape these duties of support,
merely that it is artificial to suggest that these undertakings are commonly
thought about, or given, by healthy, financially comfortable persons-whether
they be heterosexual, gay or lesbian-who are in love and entering into a
permanent relationship. To import such undertakings as a requirement for the
recognition of a same-sex partnership, as Madala J has done [in Satchwell (1)], is
in itself discriminatory. Whether the equality clause demands that couples in a
permanent same-sex relationship must owe each other a reciprocal duty of
support supplied by operation of law, not as a contractual undertaking, is a
separa tee iIssue.439
Once again, it is submitted that the extension sought by non-formalised
same-sex life partnerships needs to be recognised on the basis of some
or other objective yardstick. Therefore, what has been said regarding
Wood-Bodley's failure to appreciate the link between the reciprocal duty of
support and the nature of the particular extension sought is equally
relevant in this regard. The undertaking of mutual support obligations is a
logical consequence of any relationship based on interdependence.
Furthermore, proof of such an undertaking is required precisely because
of the fact that the law does not automatically attach such a duty to non-
formalised relationships. Consequently, to regard such an undertaking as
an absolute minimum before extending a consequence of marriage which
is logically linked thereto to unmarried life partners is nothing short of
common-senss.v'?
Finally, proving the existence of a reciprocal duty of support is not as
onerous as it may at first appear. Indeed, case law confirms that the
439
2008(b): 269.
440
It is submitted that this may be the reason why the Courts have, according to Wood-Bodley
(2008(b): 271) "not articulated" Schafer's view (2006: 630) in terms of which the latter opines
that the Courts insist on a reciprocal duty of support for the purposes of specific claims only.
292
existence of such a duty has readily been inferred;441 a phenomenon
which Wood-Bodley himself concedes.t" (In fact, it is worth noting that
the existence of such a duty was inferred without question in the Gory
case despite the fact that the parties had been living together for less than
one year.)443 Furthermore, this study has shown that both case law and
legislation testifies to the fact that, irrespective of the demands of the
equality clause, a contractual duty of support is as worthy of recognition
and protection as its ex lege counterpart.t" Therefore, it is submitted that
Wood-Bodley's fears pertaining to proving the existence of such a duty in
circumstances where, for example, the same-sex couple is "poor or
unsophisticated" or where either or both of them have been dissuaded by
homophobia or bigotry from making express provision for their life partner
in respect of employment benefits can be allayed by the fact that the
existence of a contractual duty of support may be relatively easy to prove
and is not dependent on inflexible criteria such as "mimic[king] the
heterosexual marriage ceremony.,,445
In conclusion, the fact that Wood-Bodley categorically denounces the
necessity of this requirement for the purposes of the legal recognition of
same-sex unions in appropriate circumstances is respectfully submitted as
being an oversight on his behalf; and, in turn, the reason why the
possibility that Wood-Bodley's point of view is completely correct cannot
be supported. The rationale behind this assertion will be explained when
the third possibility is considered.
c) The third possibility is based on the premise that when Wood-Bodley's
"homophobia argument" is considered in conjunction with the criticism of
441
See for example Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) at par (14); Gory v Kolver
NO 2007 (3) BCLR294 (CC) at par (2).
442 2008(b): 269, 270.
443
Gory v Kolver NO 2006 (5) SA 145 (T) at par (5) read with par (18).
444
See 3.3.1.2 above.
445 2008(b): 270.
293
the "choice argument" (as explained in the discussion of the Volks case
above), it becomes apparent that neither heterosexual nor homosexual
couples of necessity have the option of marriage (or similar
formalisationt46 available to them. Indeed, over and above the
homophobia argument, it stands to reason that many of the obstacles that
have traditionally negated the choice of formalisation within the context of
heterosexual unions (such as unequal power relations and ignorance of
the consequences of marriage or similar forrnatlsatton)?" apply equally to
same-sex post-Civil Union Act couples.r" Nevertheless, as was seen in
the discussion of Volks NO v Robinson, it was suggested that, within the
context of the Maintenance of Surviving Spouses Act,449 a distinction
needed to be drawn between cases involving property disputes and those
based on need (or support)."? In terms of this approach-referred to as
the "contextualised choice model"-it was suggested that the "choice
argument" would not be relevant in cases based on need, but rather that,
in order to establish a proximal nexus between the deceased estate and
the survivor's need-based claim, the existence of a reciprocal duty of
support would be the decisive criterion. If applied to Wood-Bodley's
arguments for the continued permissibility of intestate succession claims
for same-sex unmarried couples, the third possibility therefore concedes
that homophobia may go as far as to negate the choices available to
homosexual couples, but at the same time suggests that this lack of a real
choice may (in much the same way as was argued in the case of
heterosexual couples) in any event be irrelevant in as far as a claim
based on need is concerned.
However, before it can be determined whether the approach suggested in
the discussion of the Volks case could be transplanted into the realm of
446
For example, in the form of a civil partnership.
447
See note 430 above.
448
Bonthuys 2007: 540.
449
27 of 1990.
450
See 3.3.2.2 above.
294
intestate succession, it is first necessary to determine whether the
purposes served by the respective Acts in Volks and Gory are
comparable.t'" If it indeed were true that both Acts served a similar
purpose-in the sense of catering for the needs of survivors as opposed
to satisfying proprietary claims-it would follow that the approach
suggested in Volks could also apply to the situation in Gory.
De Waal452 describes the rationale underlying intestate succession in the
following terms:
It would be generally correct to say that most systems of intestate succession do
not find their rationale in trying to establish the hypothetical intention of the
deceased, but in the legal conviction that the surviving spouse and family
members are, in a sense, the deceased's 'natural heirs'. The South African
system of intestate succession, as set out in the Intestate Succession Act,
certainly reflects this idea.453
In the case of Oaniels v Campbell NO and Others,454 a case which
examined the constitutionality of both the Maintenance of Surviving
Spouses Act55 as well as the Intestate Succession Act,456 Sachs J
(writing for the majority) expressed the following view regarding the
purpose of both of these statutes:
451
See J and Anather v Director General, Department of Home Affairs, and Others 2003 (5) SA 621
(CC) at par [24): "The precise parameters of relationships entitled to constitutional protection will
often depend on the purpose of the statute. For instance in [Satchwell (1)) where the issue was
pensions and related benefits, a mutual duty of support was an essential element. In the present
case, where the rights of children are implicated, this was not an essential element, though it
might have been an appropriate one." (footnote omitted; emphasis added).
452 2006: 3G13.
453 Emphasis and italics added.
454
2004 (5) SA 331 (CC); 2004 (7) BCLR735 (CC).
455 27 of 1990.
456
81 of 1987.
295
An important purpose of the statutes is to provide relief to a particularly
vulnerable section af the population, namely, widows. Although the Acts are
linguistically gender-neutral, it is clear that in substantive terms they benefit
mainly widows rather than widowers.... Widows for whom no provision had
been made by will or other settlement were not protected by the common law.
The result was that their bereavement was compounded by dependence and
potential homelessness-hence the statutes. The Acts were introduced to
guarantee what was in effect a widow's portion on intestacy as well as a claim
against the estate for maintenance. The objective of the Acts was to ensure
that widows would receive at least a child's share instead of their being
precariously dependent on family benevolence.457
By providing for a system of "forced succession.Y" the elucidation of the
basis of intestate succession provided by De Waal, coupled with the
Constitutional Court's description of the purpose of the Intestate
Succession Act in Oaniels makes it clear that the principle driving intestate
succession in South Africa is indeed a social one,459 aimed at "the
maintenance and protection of the family as a social unit.,,46oAlthough it
may be argued that the elucidation of the purpose of the Intestate
Succession Act by the Court in Oaniels could be criticised for apparently
overlooking the fact that members of wealthy families also die intestate, it
457 Par [22) and [23) (emphasis added). Prior to the Succession Act 13 of 1934, the common law (in
the form of the Schependomsrecht) conferred no rights of intestate succession on a surviving
spouse who, in the absence of any blood relatives, survived the deceased. In such instances the
inheritance was forfeited to the State as bona vacantia-see Corbett, Hofmeyr and Kahn 2001:
564 - 566. In 1983 the South African Law Commission (as it was then known) rejected the idea
of a surviving spouse as being the sole heir, but recommended instead that a surviving spouse
would compete only with the deceased's descendants, and, as such, would be treated as an
additional descendant. This recommendation was included in the Intestate Succession Act 81 of
1987 (see SALC 1983: 12 - 14) which repealed all prior statutes and superseded the position at
common law (see De Waal and Schoeman-Malan 2008: 15).
458 See De Waal 1997: 164, 165 and 166.
459 De Waa11997: 166. Also see Ngcobo J's minority judgment in Daniels at par [99).
460 De Waal 2006: 3Gl. On the other hand, the principle of freedom of testation (in terms of which
a person is permitted to dispose freely of his or her property by means of a will) is based on
economic considerations and has as its objective the transferring of wealth-see De Waal 1997:
166; Du Toit 2001: 14.
296
is submitted that this does not alter the fact that the Act was in principle
enacted in order to perform a social function by supporting the family of
the deceased. Furthermore, sight should not be lost of the fact that the
Act applies regardless of the de facto financial position of the survivor; a
position which is certainly liable to fluctuate throughout the existence of
the relationship, and for which, it is submitted, the Act intends to provide
contingent relief. Consequently, it would be incorrect to argue that,
because the Act may from time to time461 regulate the distribution of an
estate involving a de facto wealthy survivor, intestate claims cannot be
regarded as falling under the category of need-based claims.
It is submitted that it can therefore be accepted that both the Intestate
Succession Act and the Maintenance of Surviving Spouses Act serve a
similar fundamental purpose, namely to address the needs of the
survivor.462 Consequently, while it is true that the extent of the survivor's
needs will differ from case to case and that the Acts do not treat the issue
461 It appears to be a recognised fact that wealthy people are less likely to die intestate than affluent
people-see De Waal 1997: 165; Du Toit 2001: 13.
462 In a thorough historical analysis Du Plessis 1990: 236 - 240 points out that Justinian's Novellae
were promulgated in order to remove the discrepancies that had existed between male and
female heirs up until that point. In this regard she mentions that Novellae 117 5 of 542 and 536
of 537 permitted a needy widow to claim a portion of the estate after death (which could
amount to a quarter of the estate unless reduced in accordance with Novella 1175), while in the
case of divorce, Novella 22 18 of 536 entitled a needy spouse to 100 pounds provided that she
was not blameworthy as far as the divorce was concerned. Importantly, Du Plessis states that
"[v)olgens Dannenbring is die agterliggende rede vir die Romeinsregtelike kwart-reëling sosiaal
van aard. Dit het berus op keiserlike genade en mensliewendheid ten aansien van die versorging
van die weduwees. Die gedagte het ontstaan as gevolg van Hellenistiese en Christelike invloede.
Breë maatreëls moes getref word om die arm bevolking te help waarvan die versorging van
weduwees maar een was" (at 237, footnotes omitted). In early Cape law, Du Plessis mentions
that the position of widows did not receive much attention, while the Natal Legislature (Act 22 of
1863) entitled a widow to a marriage out of community of property to claim one-half or one-
third of the estate, depending on the circumstances. Du Plessis concludes that while the
forerunner to the current Act (the Succession Act 13 of 1934) was highly reminiscent of
Justinian's Novellae, the enactment of section l(l)(a) - (c) of the 1987 Act changed the position
entirely by entitling a surviving spouse to inherit the entire estate in the event of there being no
descendants, while, in cases where descendants also survived the deceased "blyk dit dat die
Justiniaanse Novel/oe (117 5, 53 6 en 22 8) na verloop van jare weer eens 'n 'regmatige plek'
(hoewel indirek) ingeneem het" (at 240). Oosthuizen 1989: 98 also expresses the view that in
addition to systematising the common law, "the lot of the surviving spouse has also been
considerably improved" by the 1987 Act.
297
of need in an identical manner,463this does not detract from the fact that
both pieces of legislation were enacted with a view to serving the same
fundamental purpose. As such, it follows that what was said in relation to
the Volks case above regarding the fact that the "choice argument" is
irrelevant in the case of a need-based claim should apply mutatis
mutandis to the facts in the Gory case. However, it would simultaneously
imply that proving that a reciprocal duty of support existed between the
deceased and the survivor would be essential in order to succeed with the
claim to inherit intestate. (Indeed, the essentiality of proving the existence
of a reciprocal duty of support is pertinently illustrated by the situation
where affluent persons are involved: In the event of a wealthy survivor
being a potential intestate heir [so that it may be argued that need is not at
issue] it is submitted that the existence of a reciprocal duty of support
would justify such a survivor's claim despite the de facto lack of need.)
For this reason, Wood-Bodley's464 submission that the prerequisite of a
reciprocal duty of support in both Gory judgments was "unwarranted"
cannot be supported.t'" This argument is substantiated by the fact that,
despite persuasive arguments to the contrary.t'" sight simply cannot be
lost of the fact that even though the option of marriage may be illusory, the
463
For example, the Maintenance of Surviving Spouses Act contains criteria to establish the
"reasonable maintenance needs" and the "own means" of a survivor, while the Intestate
Succession Act contains no similar criteria.
464
2008(a): 52.
465
In this regard the gist of Wood-Bodley's contention is that, while it is possible to understand why
the existence of a reciprocal duty of support was deemed to be a prerequisite for the extension
of benefits associated with marriage in a case such as Satchwell (1) [2002 (6) SA 1 (CC)), it is less
clear why the Court in Gory deemed such a duty also to be a prerequisite in order for one partner
to qualify as the intestate heir of the other. According to him, the failure to undertake mutual
duties of support would be an "understandable omission" where neither party is in need of
financial support (see Wood-Bodley 2008(b): 271). In fact, when all is said and done, Wood-
Bodley's argument can be criticised on the basis that he fails to realise that, far from being
redundant, the existence of a reciprocal duty of support is in fact the key to justifying the
continuation of an intestate succession claim in the case of homosexual couples who have not
solemnised their union by way of marriage or civil partnership-see (the second possibility ((b))
in the main text above.)
466
See for example Hartzenberg J's statement in the judgment of the Court a quo in Gory (2006 (5)
SA 145 (T) at par (22)).
298
parties have the option of the law of testate succession at their disposal: In
the absence of such testamentary provision within the context of non-
formalised relationships, proof of a reciprocal duty of support is required
as an objective benchmark in order to establish the proximal link between
the claim based on need and the deceased estate. Viewed in this light, it
is submitted that the existence of a reciprocal duty of support in a
permanent relationship in fact establishes that the survivor of such a non-
formalised relationship is "now regarded as close family of the deceased"
thereby justifying his or her claim as one of the deceased's natural
heirs.467
As a consequence, it is submitted that, as was concluded within the
context of maintenance claims in the Volks case, prospective domestic
partnerships legislation must take cognisance of the fact that the existence
of a reciprocal duty of support is a sine qua non for the continued
extension of the principles of intestate succession to permanent life
partners who have not formalised their relationship by way of appropriate
legislation.
This construction, it is further suggested, may provide the solution to the
three post-Civil Union Act scenarios identified by Wood-Bodley,468 all of
which are based on the premise that no legislative amendment to the legal
position in the light of Gory is forthcoming.
• The first scenario envisions an equality challenge being brought by
the surviving blood relations of a deceased person who was
involved in a non-formalised same-sex life partnership on the basis
467 The quoted words are included in order to contrast this submission with that of Wood-Bodley
(2008(b): 271) who states that: "Surely the reason for a 'spouse' inheriting on intestacy is
because the spouse is now regarded as close family of the deceased, equivalent to a close blood
relation, not because of the existence of duties of support?"
468 2008(a): 60, 61.
299
that they are being discriminated against as they would have been
able to inherit intestate but for the fact that their deceased family
member had been involved in a homosexual relationship.
• The second scenario proffered by Wood-Bodley suggests that, as
an alternative to the first scenario, the surviving partner to a
heterosexual life partnership may challenge the current legal
position on the basis that he or she is prevented, on the basis of
having elected not to marry, from exercising a right to which a
same-sex survivor who had also elected not to marry is entitled.469
• In the final instance Wood-Bodlel70 raises the pertinent question
as to whether-bearing the recently-established right to intestate
succession in mind-a surviving homosexual partner to a non-
formalised union would be entitled to institute a claim in terms of
the Maintenance of Surviving Spouses Act.471
It is suggested that the approach adopted earlier in this study as a solution
to the difficulties presented by the Volks case will provide an adequate
solution to all three scenarios sketched by Wood-Bodley. On the basis of
the "contextualised choice model" the point of departure would be to
accept the premise that a maintenance or succession claim instituted after
the termination of a life partnership in principle serves a social objective
and forms part of the genus need-based claims (as opposed to those
469
If the Court were to find in the applicant's favour, Wood-Bodley (2008(a): 61) suggests that this
would be an appropriate instance to hold that such an order should not be imposed with any
retrospective effect (see the Constitutional Court's judgment in Gory at par (39) for an
explanation of the general principles in this regard) and that Parliament should be provided with
an opportunity to rectify the position before the order would take effect. It is submitted that
Wood-Bodley's purely prospective approach overlooks the fact that such an order would not
vindicate the successful litigant's rights. For this reason his suggestion cannot be supported.
470
Wood-Bodley 2008(a): 59; also raised in 2008(b): 270.
471
27 of 1990.
300
involving property disputes).472 This fact would be sufficient to circumvent
any need for recourse to the "choice argument", which, moreover, would
automatically imply that this (constitutional) issue could be avoided.473
The second aspect would then simply be for the surviving life partner to
prove that a reciprocal duty of support existed between him- or herself and
the deceased. The existence of this duty would, it is submitted, justify the
survivor's right either to inherit intestate or to claim for maintenance.
3.4.1.3 Conclusion
While it was concluded in the earlier analysis of the Volks case that heterosexual
unmarried couples do not necessarily have the option of formalising their unions
open to them, it has been found that the same inequalities present themselves
within the context of same-sex relationships.V" This reality, coupled with a
consideration of Wood-Bodley's "homophobia argument,"475 leads to the
conclusion that neither heterosexual nor homosexual unmarried couples are
necessarily availed of the option of formalising their relationships. This
notwithstanding, provided the claim is based on need, nothing turns on the
exercising (or otherwise) of such a choice: As a claim under the Intestate
Succession Act serves a social objective and can be regarded as a need-based
claim, it follows that the "contextualised choice model"-as distilled from
Canadian law and adapted in the light of South African case law-can be applied
equally to a post-Civil Union Act claim for intestate succession, with the result
that, provided a reciprocal duty of support existed during the existence of a
permanent life partnership, such a claim can be instituted regardless of whether
the claim arises in the context of a heterosexual or homosexual relationship.
472
As seen above the purpose of both the Maintenance of Surviving Spouses Act 27 of 1990 and the
Intestate Succession Act 81 of 1987 was to provide for need-based claims-see Daniels v
Campbell NO and Others 2004 (5) SA 331 (CC); 2004 (7) BCLR735 (CC)at par (22) and (23).
473
See National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA1 (CC)
at par (21).
474
See Bonthuys 2007: 540.
475
Also see De Vos 2007(a): 463 et seq for a further discussion of the hardships suffered by
homosexual couples.
301
Such an objective approach would remove the need for differentiating (and
indeed possibly unfairly discriminating) between same-sex and opposite-sex life
partners in a post-Civil Union Act context.f" Furthermore, such an approach
should be borne in mind for the purposes of modifying the Domestic Partnerships
Bill, 2008 according to the domestic partnership rubric.
3.4.2 The relevance of a (reciprocal?) duty of support within the context
of insurance agreements
3.4.2.1 The facts
In Bezuidenhout NO v ABSA Versekeringsmaatskappy Bpk 477 a lesbian couple
(A and D) had been involved in an intimate relationship since 1982. Although the
relationship ceased to be intimate in 1998 as a result of D's alcohol abuse and
concomitant aggressive behaviour, the parties continued to cohabit and to share
the same bedroom. The ostensible reason for this was to prevent D's destitution
as she was unable to support herself.478 In July 2000 A (the driver) and 0 (her
passenger) were involved in a motor vehicle accident when the vehicle in which
they were being conveyed left the road and overturned. It was alleged that the
accident had been caused by A's negligent driving as a result of which 0 was
seriously injured.479 In 2005 judgment was obtained against A after she had
476
This objective approach would also serve to iron-out the anomalies of Wood-Bodley's staggered
approach (in terms of which same-sex life partners would-despite the enactment of the Civil
Union Act-be able to inherit intestate despite choosing not to marry or to enter into a civil
partnership while the same would not apply to heterosexual couples) that would result where
one of the partners had altered his or her sex description and status in accordance with the
procedures prescribed by the Alteration of Sex Description and Sex Status Act 49 of 2003.
Assume, for example, that A (born male) altered his sex by gender reassignment surgery to that
of a female and thereafter entered into a life partnership with B (female). In terms of section 3
of the Act, A would henceforth "for all purposes" be deemed to be a person of the "new" sex, i.e.
female. On Wood-Bodley's construction A would be able to inherit intestate from B by virtue of
the fact of her altered sex description, while the same would not have been permitted if A had
never undergone the surgery and had (as a male) entered into the life partnership with B.
477
Unreported judgment of the Transvaal Provincial Division (now the North Gauteng High Court,
Pretoria), case no 40688/2008 delivered on 26 February 2008.
478
Par [7.1) and [7.2).
479
Par [5).
302
conceded liability.48o However, as her estate had been sequestrated by that
time, her insurer was in principle obliged to compensate D for her damages by
virtue of section 156 of the Insolvency Act.481 The core issue in this case was
therefore whether A's insurer was liable for the damage suffered by D as a result
of the accident. The insurance policy entered into between A and her insurer
contained an exclusionary clause in terms of which A would be indemnified from
liability for the death or bodily injury to any person unless that person:
(a) is a member of [yJour immediate family;
(b) normally resides at [yJour residence, including domestic servants ...482
By the time that the accident occurred (in July 2000), A and D had been living in
a home belonging to A's sister. D was unemployed and did not contribute to any
household expenses with the result that A apparently supported her "almost like
a child.,,483
The plaintiff (D's curator ad litem) averred that the phrase "[y]our residence" did
not include a situation where the insured was not the owner of the place in which
he or she and the person who had been killed or injured resided. On this basis it
was alleged that sub-paragraph (b) of the exclusionary clause did not exclude the
insurer's liability.484 On the other hand, counsel for the insurer contended that
the phrase had to be interpreted with the purpose of the exclusion in mind, which
was to limit the insurer's liability to persons other than those with whom the
insured would frequently travel. On this basis, it was argued that the clause
served merely to identify the category of excluded persons as being those who
"normally resided" with the insured person irrespective of whether or not the
insured had "any proprietary right in the sense of ownership" therein.485
480 Par [5].
481 Act 24 of 1936. See par [5].
482 Par [6].
483 Par [7.3].
484 Par lê].
485 Par [8].
303
Fabricius AJ held that the phrase "[y]our residence" had to be interpreted within
the specific context of insurance contracts.t'" On this basis, it became clear that
the purpose of such an exclusionary clause was to limit the insurer's risk by
excluding those who would by virtue of family ties to or cohabitation with the
insured frequently travel with him or her; a risk which in addition would be further
reduced by eliminating the possibility of fraudulent claims being instituted by
collusion between these persons.f" Fabricius AJ concluded that
residence in this context is the insured's domestic establishment, and persons normally
residing there would be those who normally receive their meals and accommodation
from the insured gratuitously, be it the owner [or] the lessee.488
Accordingly it was held that it was irrelevant whether A owned or leased the
property in which she and 0 had resided at the time of the accident. The fact
remained that she "normally resided" there. Furthermore, the learned Judge held
that "[i]t is clear that [0] had a close relationship with [A] and that this did not
cease simply because intimacy ceased.,,489 In closing, Fabricius AJ made the
significant remark that, while this issue had not been raised before him, it may
have been contended that sub-paragraph (a) of the exclusionary clause was
applicable on the basis that 0 was a member of A's "immediate family.,,49o
3.4.2.2 Observations
The following observations can be made regarding this decision:
486
Par [9] and [10].
487
Par [10] read with [12].
488 Par [10].
489 Par [13].
490 Par [14].
304
(i) The requirement of intimacy does not seem to be essential to establish a
"close relationship" and hence to constitute a life partnership in the narrow
sense.t'"
(ii) The facts in casu illustrate why the criterion of dependence cannot be
regarded as the fundamental criterion in order to determine whether a
union qualifies as a life partnership in the narrow sense. This aspect is
considered in more detail in 11.2 in Chapter 7.
(iii) Although this point did not feature in casu, it is submitted that even though
A (on her evidence) virtually maintained 0 "as a child", a contractual
reciprocal duty of support nevertheless existed between herself and D.
This duty had arisen in 1982, and the fact that A almost single-handedly
continued to care for and support 0 testifies to the fact that by her conduct
she condoned this state of affairs. The only aspect of the duty that
changed in the final two years of the relationship was that it came to rest
on A as sole breadwinner.492 On this basis it is submitted that if,
hypothetically speaking, the union between A and 0 was terminated by
the death of A, 0 should, on the basis of the "contextualised choice
model", be able to institute a need-based claim (for example for
maintenance) against the deceased estate.
(iv) A final observation that needs to be made concerns the angle taken by the
defendant who, in view of the nature of the defence raised (namely that
the exclusion clause applied in casu), bore the onus of proof.493 In this
regard, it is suggested that in view of the contentious and uncertain
interpretation given to the phrase "[y]our residence", counsel for the
defence should instead have concentrated on the phrase "[y]our
immediate family." Fabricius AJ also alluded to this possibility in
491 See 2.1.2.2 in Chapter 4.
492
See Sinclair and Heaton 1996: 442 (at note 90) and 3.3.1.2 above.
493 Par (7).
305
remarking that, although there was no need to decide the issue, "it could
be argued that [0] was a member of [A's] 'immediate family'." It is strange
that so much emphasis was placed on arguing the interpretation of the
former phrase while there is ample authority in support of the contention
that a homosexual couple creates and constitutes a "family.,,494 (In fact, it
appears from Fabricius AJ's statement quoted above that this point was
not even raised at ail.) It is consequently submitted that the latter option
would have been a far less risky one as it would from the outset have
placed the applicability of the exclusion clause beyond doubt.
3.5 Some recognition for heterosexual life partners: The Pension
Funds Act 24 of 1956
In Hlathi v University of Fort Hare Retirement Fund and Others,495the Pension
Funds Adjudicator was recently required to consider whether the pension fund of
which the deceased (Mr H) had been a member until his death in 2002 had
correctly apportioned the death benefit between the complainant (the deceased's
mother) and the third respondent (a woman with whom the deceased had
cohabited for nine years preceding his death). The fund had awarded one third
of the R 400 000 benefit to the complainant and two thirds thereof to the third
respondent. The complainant alleged that the third respondent was not a
dependant of the deceased, and in the result felt that she was entitled to the
entire benefit.496
Although the Pension Funds Act contains an updated definition of "spouse" so as
to include a "permanent life partner" as such (and by virtue hereof to permit such
494
Over and above the authority for this statement mentioned by Fabricius AJ (namely Farr v
Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C)) the highest Court in the Republic as well
as the Supreme Court of Appeal have already established and entrenched this fact-see National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at par [53]
and Fourie v Minister of Home Affairs 2005 (3) SA429 (SCA) at par [13].
495
PFA/EC/9015/2006.
496
Par [4]- [6] and [17].
306
a partner to qualify as a "dependant" of the deceased), the Pension Funds
Adjudicator held that the third respondent could not rely on this definition as the
latter had only come into operation in 2007, while the deceased had passed
away five years earlier.497 Nevertheless, on the basis of the mutual support
obligations that had clearly been undertaken, the Adjudicator was prepared to
find that the third respondent and the deceased were "inter-dependent" and that
the latter hence qualified as a "factual dependant" of the deceased.49B As a
result, it was concluded that the retirement fund had correctly apportioned the
benefit on the one-to-two-thirds basls."?
This case illustrates that, for the purposes of pension law, the value of a factual
duty of support that exists between heterosexual life partners appears to have
been appreciated. It is however interesting to note that paragraph (b) of the
definition of "dependant" (in terms of which the matter was decided by the
Adjudicator) deals with the situation where the member is not legally liable for
maintenance, but where the person is nevertheless a factual dependant of that
member. On the other hand, paragraph (a) of the definition relates to a
dependant "in respect of whom the member is legally liable for maintenance." In
this regard it is submitted, as Cronjé and Heaton500 have intimated, that the
existence of a contractual reciprocal support obligation implies that a legal
obligation to maintain exists between the parties involved. On this basis, it is
submitted that the Adjudicator may in fact have held that the contractual support
obligations undertaken between the deceased and the third respondent meant
_ that he was in fact "legally liable" to maintain her, with the result that paragraph
(a) of the definition would have been applicable. In the end result, although
nothing turns on whether the matter was decided on paragraph (a) or (b) of the
definition, a finding on the basis of paragraph (a) would have reiterated the
potency of the contractual duty of support in contemporary South African law.
497 Par [28] and [29].
498 Par [35].
499 Par [36]- [39].
500 2004: 229.
307
3.6 Conclusions regarding the reciprocal duty of support in non-
formalised life partnerships
At this point it can be stated with certainty that neither homosexual nor
heterosexual life partners currently owe each other an ex lege duty of support.
Where our Courts have been petitioned to grant piecemeal extensions of the
invariable consequences of marriage to unmarried same-sex couples, they have
been prepared to infer the existence of such duties,501and, moreover, to entitle
other similarly-situated couples to the same extension on the express condition
that reciprocal support obligations had been undertaken by them. As far as
heterosexual unmarried couples are concerned, our Courts have thus far been
prepared to withhold similar extensions from such couples on the ostensible
basis that they have always been in a position to avail themselves of the
protection provided by the law of marriage while their homosexual counterparts
have not.502 On the basis of a minority judgment in the Canadian case of Nova
Scotia (Attorney General) v Walsh503 it was concluded that, as far as this "choice
argument" is concerned, a distinction should be drawn between claims based on
need (such as post-termination maintenance) and those involving property
disputes. Embroidering on this distinction, it was concluded that the fact that
parties have chosen not to marry should be irrelevant where a claim is based on
need, but that the existence of a factual reciprocal duty of support would be a
sine qua non for the extension of any such claim. The application of this theory
to the majority judgment in Volks NO v Robinson504 showed that this decision
could not be supported; not only for its failure to infer reciprocal obligations
where they clearly existed on the facts, but also for the majority judgment's
501
See for example Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) at par (14); Gory v Kolver
NO 2007 (3) BCLR294 (CC) at par (2).
502
See the approach of the majority in Volks NO v Robinson 2005 (5) BCLR 446 (CC), recently
referred to with apprpoval by the Pensions Funds Adjudicator in Hlathi v University of Fort Hare
Retirement Fund and Others PFA/EC/901S/2006 (at par (30)).
503
_2002 SCC83,32 R.F.L. (5th) 81,)21 D.L.R. (4th) 1, 211 N.S.R. (2d) 273,102 C.R.R. (2d) 1, (2002)4
S.C.R.325, 297 N.R. 203, 659 A.P.R. 273, REJB2002-36303, J.E. 2003-102.
504
2005 (5) BCLR446 (CC).
308
failure to appreciate the realities within which such a "choice" is often exercised
in contemporary South Africa.
Building on this theory, it was concluded, with reference to the decision of Gory
v Kolver NO,505 that despite the validation of same-sex marriages in 2006, the
prevalence of homophobia as a "lived reality,,506in South African society at times
poses an insurmountable barrier to homosexual persons who would otherwise
wish to marry. As a result, it was concluded that neither heterosexual nor
homosexual unmarried couples necessarily have the option of marriage open to
them. In addition, it was concluded that a claim for intestate succession should
in principle be regarded as a need-based claim. The coupling of these two
findings implies that the "choice argument" as refined into the "contextualised
choice model" could also accommodate post-Civil Union Act claims based on
need, regardless of whether the claim arose in consequence of a heterosexual
or homosexual permanent life partnership.
The discussion concluded with two recent judgments, the major relevance of
which were (i) the confirmation of the view that intimacy is not a requirement for
the establishment of a life partnershlp.r'" and (ii) that, according to the Pension
Funds Adjudicator, a factual reciprocal duty of support appears to be sufficient in
order to entitle the survivor to a permanent heterosexual life partnership to qualify
as a dependant for the purposes of the Pension Funds Act 24 of 1956.508
As such, valuable lessons regarding the reciprocal duty of support have been
learned for the purposes of the modification of the Domestic Partnerships Bill in
accordance with the domestic partnership rubric.
505 2007 (4) SA 97 (CC); 2007 (3) BCLR294 (CC).
506 See Wood-Bodley 2008(c): 486 as well as De Vos 2007(a): 463 et seq.
507 Bezuidenhout NO v ABSA Versekeringsmaatskappy Bpk Unreported judgment of the Transvaal
Provincial Division (now the North Gauteng High Court, Pretoria), case no 40688/2008 delivered
on 26 February 2008.
508 Hlathi v University of Fort Hare Retirement Fund and Others PFA/EC/9015/2006.
309
3.7 Consortium omnis vitae
The description of the invariable consequence of marriage known as consortium
omnis vitae ("a physical, moral and spiritual community of life,,509-discussed in
detail earlier in this study)51owas described as follows in Peter v Minister of Law
and Order. 511
The concept of matrimonial consortium has been termed an abstraction comprising the
totality of a number of rights, duties and advantages accruing to spouses of a marriage ...
These embrace intangibles, such as loyalty and sympathetic care and affection, concern
etc; as well as the more material needs of life, such as physical care, financial support,
the rendering of services in the running of the common household or in a support-
generatin.g busr.ness, etc. 512
This description was expressly quoted in National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs,513 a case that dealt with the extension of
immigration rights attached to marriage to same-sex life partners. On the
strength hereof, Schi3fer514opines that the finding in the latter case serves as
authority for asserting that the concept of consortium omnis vitae currently
constitutes "the definitive hallmark" and "core quality" of a same-sex life
partnership.
It is tempting to infer from Schafer's statements that the concept of consortium
omnis vitae as it applies in the case of a marriage has indeed been transplanted
in toto into the realm of same-sex life partnerships. Such an inference is
509
Per O'Regan J in Dawood and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs
and Others 2000 (3) SA 936 (CC); 2000 (8) BCLR837 (CC) at par [33].
510
See 4 in Chapter 2.
511
1990 (4) SA 6 (E).
512
At 9 (G) - (HI, referred to with approval in National Coalition for Gay and Lesbian Equality v
Minister of Home Affairs 2000 (2) SA 1 (CC) at par [46] (see note 61 of the judgment) and
Dowood and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) at par [33].
513
2000 (2) SA 1 (CC).
514
2008(b): R 3. Also see Schater 2006: 629.
310
bolstered immensely by Ackermann J's statement in National Coalition for Gay
and Lesbian Equality v Minister of Home Affairs515 to the effect that "gays and
lesbians in same-sex life partnerships are as capable as heterosexual spouses of
expressing and sharing love in its manifold forms, including affection, friendship,
eros and charity" that they are "as capable of forming intimate, permanent,
committed, monogamous, loyal and enduring relationships; of furnishing
emotional and spiritual support; and of providing physical care, financial support
and assistance in running the common household" and that in short, they have
the same ability to establish a consortium omnis vitae ... "
Nevertheless, it is submitted that the positive law dictates that Schafer's
inference cannot yet be drawn. While he is correct in appreciating the
importance of the concept of consortium omnis vitae within the context of same-
sex life partnerships, it is questionable whether the consortium can be described
as the "hallmark" thereof. To begin with, in the sense which it is employed by
Schafer, the term "hallmark" appears to create the impression that consortium
omnis vitae is the distinctive feature of a same-sex life partnership. Whether or
not this is true is debatable, as an analysis of case law reveals that the ability of a
same-sex couple to establish a community of life does not without more appear
to have been sufficient to justify the extension of the consequences of marriage
to same-sex life partnerships. Instead, the Courts appear-most likely on the
basis of the National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs judgment-to have accepted this ability as a given while often requiring
"something more" (such as proof of mutual support obligations) before permitting
the extension requested by the applicants. Consequently, if it were so that
consortium omnis vitae were indeed the "core quality" of a same-sex relationship,
it may be argued that the Courts have erred in posing additional requirements
before granting the extensions sought for, as Q'Regan J stated in the Oawood
515
2000 (2) SA 1 (CC) at par [53).
311
case, "the community of life [in the context of marriage] establishes a reciprocal
and enforceable duty of financial support between the spouses.Y"
Within the context of marriage, authors such as Cronjé and Heaton?" state that
the right to family life (which is protected by the constitutional right to dignity)
"includes the spouses' right to have a consortium omnis vitae." As far as same-
sex life partnerships are concerned, it is submitted that although the Courts have
recognised the broad right of such partners to have their "families and family lives
in such same-sex relationships respected and protected,,,518the Courts have thus
far only been prepared to recognise a form of consortium omnis vitae that has
been contextualised for such relationships.
In stating that "[i]t would appear to be implicit from National Coalition that all life
partnerships require at least a minimum level of legal protection although ... this
does not necessarily imply parity of rights and duties between all forms [of life
partnership]" Schafer519 appears to acknowledge the fact that the "rights and
duties" that are recognised in different forms of life partnership (for example
those in heterosexual as opposed to homosexual partnerships) may differ.
However, where his approach differs from the one that was distilled from the
applicable case law in the preceding paragraph is that he does not appear to
acknowledge the fact that the concept of consortium omnis vitae has been
contextualised for the purpose of same-sex life partnerships. In other words, by
stating that this concept "previously was accepted as the hallmark of marriage
and marriage alone" he seems to maintain that the concept of consortium omnis
vitae has been appropriated in its entirety to the context of same-sex life
516
2000 (3) SA 936 (CC) at par [33]. Also see Jooste v Botha 2000 (2) SA 199 (T) at 206 (B): "Marriage
creates a consortium omnis vitae which obliges the parties to live together, grant each other
reasonable conjugal rights, be faithful to and love, cherish and support each other till death (or
the Divorce Court) do them part" (emphasis added).
517
2004: 51.
518
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at
par [54].
519
2006: 629.
312
partnerships while the "rights and duties" that may be recognised in other forms
of life partnership (for example heterosexual partnerships) may differ.52o
Support for the suggestion that consortium omnis vitae has not (yet) been fully
recognised for the purposes of same-sex life partnerships becomes evident when
one compares the definition thereof in the Peter case (quoted above) with the
current legal position. In this case it was stated that consortium constitutes "the
totality of a number of rights, duties and advantages accruing to spouses of a
marriage." If it were therefore true that consortium constitutes the "definitive
hallmark" of a same-sex life partnership, this would create the impression that all
the "rights, duties and advantages" attached to marriage would also attach to
such life partners, and, moreover, that the methods in which consortium omnis
vitae was protected in the case of marriage would also apply in order to protect
the same in a same-sex relationship. To illustrate this point, it must be noted that
consortium omnis vitae is generally not capable of being enforced directly
between the spouses to a valid marriage.521 However, the same does not hold
true for third parties. In consequence, if a third party were to commit adultery
with one of the spouses, a delictual claim could be instituted against that person
by virtue of the infringement of the consortium.522 Similar actions would also lie
520 The sections quoted are taken from Schater 2006: 629.
521 Dawood and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) at par [33);
Jooste v Botha 2000 (2) SA 199 (T) at 206 (B) - (D).
522 See for example Biccard v Biccard and Fryer (1891-1892) 9 SC473; Viviers v Kilian 1927 AD 449;
and, more recently, Wiese v Moolman 2009 (3) SA 112 (T); as well as Neethling et al 2006: 326.
An interesting question arises as to whether homosexual sexual activity will qualify as "adultery"
for the purposes of South African law. In the American state of New Hampshire the majority of
the Supreme Court recently held (per Nadeau J; Dalianis and Duggan JJ concurring) in Matter of
Blanchflower 834 A.2d 1010 (N.H. 2003) that according to Chapter 458 of the Revised Statutes
Annotated, lesbian sexual relations could not, as (i) such activity did not constitute "sexual
intercourse" in the sense of the dictionary definition of "insertion of the penis in the vagina"
which, of necessity, implied heterosexual sexual activity; and (ii) although the forerunner to the
relevant statute (namely the Revised Statutes of 1842 RS 148:3) did not define "adultery", it had
been drafted at a time when adultery "meant sexual intercourse" as a result of which "spurious
issue" could be born which of necessity implied heterosexual coital activity (at 1012; also see
Brown 2004: 181). Brock CJ and Broderick J dissented on the basis, inter alia, that "[t]o strictly
adhere to the primary definition of adultery in the 1961 edition of Webster's Third New
International Dictionary and a corollary definition of sexual intercourse, which on its face does
not require coitus, is to avert one's eyes from the sexual realities of our world" (at 1013). The
313
at the instance of the wronged spouse if the third party were to abduct or to
entice the other spouse to leave the former or if the third party were to harbour
the spouse with the intention of terminating the marriage.523 There is however no
authority to suggest that the same position would apply within the context of a
same-sex life partnership. (In fact, in a recent judgment dealing with the
continued recognition of the action based on the ground of adultery in modern-
day South Africa it was held that the restriction of such a claim to married
couples as opposed to persons involved in "andersoortige verhoudings" did not
violate the right to equality.)524 As a consequence the conclusion can be drawn
that in respect of same-sex life partnerships the positive law currently recognises
a contextualised form of consortium omnis vitae between the life partners inter se
that is not enforceable against outsiders to the relationship.
Regarding heterosexual life partnerships, the positive law indicates that
enormous differences currently exist between the "rights and duties" (if any)
which the Courts have been prepared to recognise in such life partnerships
versus those recognised in heterosexual life partnerships. For example, no
recognition whatsoever of the concept of consortium omnis vitae (much less of
the broader right to "family and family life") is to be found in the case law dealing
with such unions. This much is untenable in view of the fact that the ability of
latter sentiments are supported, and it is submitted that the approach of the majority of the
Blanchflower Court would not be countenanced in South Africa, where at least two reported
cases point to the fact that "adultery may have a wider interpretation than its ordinary meaning
of carnal intercourse of a person who is married with one who is not the spouse of such person
and may include any act such as sodomy or bestiality" (per Matthews J in McGill v McGill (1926)
47 NPD 398 at 399). In our law the delictual claim for adultery is aimed at compensating the
wronged spouse for the loss of the material and immaterial aspects of consortium due to the
intentional invasion thereof (Neethling 2006: 326 and Church 1979: 380) and it is therefore
irrelevant whether this took place by way of penetration of the female vagina by the male penis,
by way of sodomy or by way of bestiality-also see Cunningham v Cunningham 1952 (1) SA 167
(C) at 169 (B) - (E). The same line of reasoning should apply in the case of lesbian sexual activity.
Moreover, it has been opined in recent case law that there is no legal reason why same-sex
spouses should not be entitled to institute claims on the basis of adultery-see Wiese v Moolman
2009 (3) SA 122 (T) at 129 (A).
523 See in general Cronjé and Heaton 2004: 50, 51; Neethling et 0/2006: 327.
524 See Wiese v Moolman 2009 (3) SA 112 (T) at 128 (I) - 129 (C). This case is discussed in Chapter 7
(see 11.9).
314
non-formalised heterosexual unions to establish a "family and family life" is
indistinguishable from the ability of their same-sex counterparts to do the same.
In addition, in Volks NO v Robinson 525the majority inter alia held that it was fair
to distinguish between married and unmarried heterosexual couples when such
distinction was considered "in the larger context of the rights and obligations
uniquely attached to marriage.,,526 While the finding in this case has been
criticised,527 the position remains that the Courts have refused to extend the
rights and obligations attached to marriage to unmarried heterosexual couples.
On this basis, it is suggested that no form of consortium omnis vitae (even in an
inchoate form) is currently recognised between the parties to a heterosexual life
partnership.
The conclusion, therefore, is that the positive law indicates that a contextualised
form of consortium omnis vitae has been recognised by our Courts in respect of
same-sex life partnerships.t" while no development in this regard has been
forthcoming as far as heterosexual unions are concerned.
It is submitted that any further extension of the notion of consortium omnis vitae
to unmarried life partners should take place by way of the Legislature, which
should provide the mechanism by which consortium omnis vitae is, concomitant
with the level of public commitment involved, extended to formalised and non-
formalised life partnerships. In this regard, it is submitted that the domestic
partnership rubric-which mandates the modification of the draft Domestic
Partnerships Bill of 2008 and its calibration with existing legislation529-provides
the ideal mechanism by which this is to be achieved; particularly in view of the
fact that the Bill provides for partnerships which require a formal public
525 2005 (5) BCLR44 (CC).
526 Par [56].
527 See 3.3 above.
528 See Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [13] (g) where Ackermann J's
findings in par [53] of his judgment in National Coalition far Gay and Lesbian Equality v Minister
of Home Affairs 2000 (2) SA 1 (CC)were referred to with approval by Cameron JA.
529 See the basic design of the rubric in Chapter 3 above.
315
commitment (a so-called "registered domestic partnership") and those which do
not (the "unregistered domestic partnership"),53o and as such provides the ideal
framework within which the context-specific recognition of consortium omnis vitae
prescribed in Chapter 3 can be accommodated. In consequence, as far as the
former category is concerned, it may be plausible to suggest a more
comprehensive or even complete extension of this concept to such partners,
while retaining the nuanced form thereof for the latter group. This possibility will
be investigated in Part 3 (Chapter 7) of this study.
4. MISCELLANEOUS DEVELOPMENTS RELATING TO THE POSITION
OF LESBIAN COUPLES OCCASIONED BY THE SOUTH AFRICAN
COURTS
4.1 The ability of lesbian permanent life partners to adopt children jointly
Prior to the Constitutional Court's decision in Du Toit and Another v Minister of
Welfare and Population Development and Others 531section 17 of the Child Care
Act 74 of 1983 permitted a child to be adopted:
(a) by a husband and his wife jointly;
(b) by a widower or widow or unmarried or divorced person;
(c) by a married person whose spouse is the parent of the child;
(d) by the natural father of a child born out of wedlock.
Section 1 of the Act defines "marriage" for the purposes of that Act as:
any marriage which is recognised in terms of South African law or customary law, or
which was concluded in accordance with a system of religious law subject to specified
530
See2 and 3 in Chapter 7 below.
531
2003 (2) SA198 (CC);2002 (10) BCLR1006 (CC).
316
procedures, and any reference to a husband, wife, widower, widow, divorced person,
married person or spouse shall be construed accordingly ...
The criteria with which any person or persons wishing to adopt children must
comply are set out in section 18 of the Act. In this regard, it is noteworthy that
this provision is silent as far sexual orientation or gender is concerned.f"
Furthermore, according to section 20(1) of the Act:
An order of adoption shall terminate all the rights and obligations existing between the
child and any person who was his parent (other than a spouse contemplated in section
17 (c)) immediately prior to such adoption, and that parent's relatives.
The Guardianship Act 192 of 1993 (since repealed in its entirety by the Children's
Act 38 of 2005)533 awarded the mother of a child guardianship equal to that which
the father of that child had at common law.534 As an outflow hereof, the "father
and mother" of a child were generally entitled to exercise such joint guardianship
independently of one another, save for certain specified acts which required the
co-operation of both joint guardians.535
532 The criteria mentioned in section 18 (read with section 40) of the Act include: (i) that the Court
must consider a report from a social worker or accredited social worker; (ii) that the prospective
adoptive parentis] fall(s) into a category listed in section 17 of the Act and that he, she or they
have sufficient means to maintain and educate the child; (iii) that the prospective adoptive
parentis) is or are "of good repute" and is or are "fit and proper to be entrusted with the custody
[now "care" in consequence of section 1 of the Children's Act 38 of 2005) of the child"; (iv) that
the adoption will be in the interests of the child and will promote his or her welfare; (v) that,
where apposite, consent has been obtained from the child's biological parentis}, foster parentts)
and the child him or herself; and (v) that due regard is given to the "religious and cultural
background" of the child, his or her parentts) and the prospective adoptive parentis).
533 Section 313 read with Schedule 4 of this Act.
534 Section 1(1). The impact of this Act is also briefly referred to in 3.4.7.4 in Chapter 2.
535 Section 1(2) of the Act provided that: "Whenever both a father and mother have guardianship of
a minor child of their marriage, each one of them is competent, subject to any order of a
competent court to the contrary, to exercise independently and without the consent of the other
any right or power or to carry out any duty arising from such guardianship: Provided that, unless
a competent court orders otherwise, the consent of both parents shall be necessary in respect
of-
(a) the contracting of a marriage by the minor child;
(b) the adoption of the child;
317
In the Du Toit case, the applicants, a lesbian couple (OT and DV)536who had
been involved in a committed and stable relationship for over a decade, wanted
to adopt two minor children jointly. 53? However, the legislation in question made
no provision for same-sex couples to do so, even if they complied with the criteria
stipulated in section 18 of the Child Care Act.538 Consequently, despite the fact
that the applicants had been screened and found to be suitable parents by the
relevant authorities and that the children had been living with them and had
accepted them as their parents, the fact of their homosexuality implied that it was
impossible for the couple to adopt the children jointly. As a result, only one of the
partners (DV) had been awarded custody and guardianship of the two children,
notwithstanding that OT was the de facto caregiver in the light of DV's work
cornrnitrnents.F"
The applicants launched a constitutional challenge against this state of affairs on
four grounds, namely (i) that the prevailing legal position violated both of their
rights to equality as it unfairly discriminated against them on the basis of sexual
orientation and marital status; (ii) that DT's right to dignity was infringed by the
fact that the law did not accord her "due recognition and status as a parent of her
children"; (iii) that the imposition of a blanket prohibition on joint adoption by
same-sex couples could not be in the best interests of children who were cared
for by such couples and therefore violated the fundamental rights of the child as
contained in section 28 of the Constitution, 1996 and (iv) that the right to equality
(c) the removal of the child from the Republic by one of the parents or by a person other than a
parent of the child;
(d) the application for a passport by or on behalf of a person under the age of 18 years;
(e) the alienation or encumbrance of immovable property or any right to immovable property
belonging to the minor child ..."
536 Ms Du Toit was the first applicant and Ms De Vas was the second applicant-see Du Toit and
Another v Minister of Welfare and Population Development and Others 2001 (12) BCLR1225 (T)
at par [3].
537 Par [4]- [6].
538 74 of 1983.
539 Par [7] and [14]. DV was a High Court judge-see Du Toit and Another v Minister of Welfare and
Population Development and Others 2001 (12) BCLR1225 (T) at par [3].
318
and the fundamental rights of the child were also unjustifiably infringed by section
1(2) of the Guardianship Act.54o
For the purposes of this study it will be sufficient to state that a unanimous bench
of the Constitutional Court (per Skweyiya AJ) confirmed the High Court's finding
that sections 17(a) and (c) and 20(1) of the Child Care Acf41 and section 1(2) of
the Guardianship Acf42 were unconstitutional as they failed to accord pre-
eminence to the best interests of children and infringed upon the right which all
children had to a "loving and stable family life" and because the couple would
have been permitted to adopt the children jointly "but for" their sexual orientation
and their resulting unmarried status.543 To this end, the following words were
ordered to be read into the sections in question:
• In section 17(a), the words "or by the two members of a permanent same-
sex life partnership jointly" after the word "jointly";
• In section 17(c), the words "or by a person whose permanent same-sex
life partner is the parent of the child" after the word "child";
o In section 20(1), the words "or permanent same-sex life partner" after the
word "spouse"; and
• In section 1(2) of the now-repealed Guardianship Act of 1993, the words
"or both members of a permanent same-sex life partnership are joint
adoptive parents of a minor child" after the word "marriage."
It is however important to note that the developments occasioned by the Court
extended to same-sex life partnerships only. Consequently, the effect of the Du
Toit decision (read in conjunction with the legalisation of same-sex marriage) is
that the following couples may currently adopt children jointly, namely:
540 192 of 1993. This section is quoted in note 535 above.
541 74 of 1983.
542 192 of 1983.
543 Par [26) read with par [30).
319
(i) A couple who have contracted a marriage in terms of the Marriage Act,544
the Recognition of Customary Marriages Act 545or in terms of the Civil
Union Act;546
(ii) A couple who are married "in accordance with a system of religious law
subject to specific procedures,,;547
(iii) A couple who have registered a civil partnership.P'" and
(iv) Same-sex life partners in a monogamous union.549
In addition, a spouse; civil union partner or same-sex life partner of the natural
parent of the child is also permitted to adopt that child.55o
Heterosexual life partners are therefore currently omitted from this group. At the
time of writing this section, the Children's Act 38 of 2005 has not yet come into
operation in its entirety. The omission of heterosexual life partners will however
be cured when section 231 (under chapter 15) of this Act comes into
544
25 of 1961.
545 120 of 1998.
546
Section 17(a) read with the section 1 definition of "marriage" in the Child Care Act 74 of 1983;
the Marriage Act 25 of 1961; section 13 of the Civil Union Act 17 of 2006 and section 3 of the
Recognition of Customary Marriages Act 120 of 1998.
547
Section 1 definition of "marriage" in the Child Care Act 74 of 1983.
548
Section 17(a) read with the section 1 definition of "marriage" in the Child Care Act 74 of 1983 in
turn read with section 13 of the Civil Union Act 17 of 2006.
549
Par (44) of the Du Toit decision.
550
Section 17(c) read with the section 1 definition of "marriage" in the Child Care Act 74 of 1983;
the Marriage Act 25 of 1961, section 13 of the Civil Union Act 17 of 2006, section 3 of the
Recognition of Customary Marriages Act 120 of 1998 and par (44) of the Du Toit decision.
320
operatton.F" Until this happens, however, these couples will be prevented from
adopting children jointly;552 a situation that is prima facie unconstitutional.
In addition, as far as unmarried couples are concerned, an interesting state of
affairs presents itself in the light of the staggered operative effect of Act 38 of
2005. As was mentioned above, one of the sections of the Act that indeed came
into operation on 1 July 2007 repealed the Guardianship Act 192 of 1993 in its
entirety. This implied that section 1(2) of this Act as qualified by the Du Toit
decision immediately became of no force or effect. The "new" Act introduced the
concept of parental responsibilities and rights and included its own provisions
governing guardianship.553 Nevertheless, the Child Care Act (as qualified by the
Du Toit judgment) is still in force, which implies that this Act continues to govern
adoptions pending the coming into operation of chapter 15 of the Children's Act
(which, as seen above, will regulate adoption in future). The question that arises
in the light hereof is whether the repealing of the Guardianship Act (and, more
specifically, the consequent nullification of the Du Toit qualification therein
regarding same-sex life partners) will affect the rights of same-sex couples to
exercise guardianship in any way.
The first step towards answering this question would be to compare the
provisions of the "new" Act which regulate guardianship with those of the
repealed Act as qualified by the Du Toit case. If this is done, it becomes
apparent that, at first glance, the "new" Act makes no similar clear-cut provision
551 Subsection lof this section states that "A child may be adopted-
(a) jointly by-
(i) a husband and wife;
(ii) partners in a permanent domestic life-partnership; or
(iii) other persons sharing a common household and forming a permanent family
unit;
(b) by a widower, widow, divorced or unmarried person;
(c) by a married person whose spouse is the parent of the child or by a person whose
permanent domestic life-partner is the parent of the child;
(d) by the biological father of a child born out of wedlock; or
(e) by the foster parent of the child."
552 Smith and Robinson 2008(a): 370.
553 Section 18.
321
for same-sex couples as far as guardianship is concerned.P'" As a result, it
could-bearing the erstwhile interrelationship between the Child Care Act and
the Guardianship Act in mind555-be tempting to think that the failure of the "new"
Act to make specific provision for same-sex couples could be problematic. In
other words, it may appear that while the Child Care Act has been extended so
as to provide for same-sex couples to adopt children jointly, the failure of the
Children's Act to contain a direct reference to same-sex life partners in its
provisions dealing with guardianship may have the anomalous consequence that,
while the former Act would indeed permit such couples to adopt children jointly,
the lacuna in the latter Act would imply that no joint guardianship could be
exercised by such a couple.
554
See section 1(2) (as qualified by the Du Toit case) versus section 18: "Parental responsibilities
and rights
(1) A person may have either full or specific parental responsibilities and rights in respect of
a child.
(2) The parental responsibilities and rights that a person may have in respect of a child,
include the responsibility and the right-
(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.
(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a
child must-
(a) administer and safeguard the child's property and property interests;
(b) assist or represent the child in administrative, contractual and other legal
matters; or
(c) give or refuse any consent required by law in respect of the child, including-
(i) consent to the child's marriage;
(ii) consent to the child's adoption;
(iii) consent to the child's departure or removal from the Republic;
(iv) consent to the child's application for a passport; and
(v) consent to the alienation or encumbrance of any immovable property
of the child.
(4) Whenever more than one person has guardianship of a child, each one of them is
competent, subject to subsection (5), any other law or any order of a competent court
to the contrary, to exercise independently and without the consent of the other any
right or responsibility arising from such guardianship.
(5) Unless a competent court orders otherwise, the consent of all the persons that have
guardianship of a child is necessary in respect of matters set out in subsection (3) (c)."
555
See Du Toit and Another v Minister of Welfare and Population Development and Others 2003 (2)
SA 198 (CC) at par [13] and [30].
322
The solution to this problem, it is submitted, lies in a proper understanding of the
concept of "parental responsibilities and rights" as introduced by the "new" Act;
section 18(2) of which makes it clear that guardianship is merely a facet of the
broader concept of parental responsibilities and rights. Therefore, provided that
a valid adoption conveys such parental responsibilities and rights to the adoptive
parents, it will follow that the adoptive parents are both entitled to exercise
guardianship of the child. The provisions of the Child Care Act clarify this issue
in that, as authors such as Heaton556and Schafer557point out, section 20(1) and
(2) of the Act makes it clear that adoption transfers all parental responsibilities
and rights to the adoptive parents. Furthermore, there can be no doubt, in the
light of the qualification of this section in the Du Toit case,558that the same holds
true for same-sex life partners. Therefore, as guardianship is merely one of the
facets of the broader concept, it follows that both same-sex life partners will have
guardianship of their adopted child.
As far as heterosexual life partners are concerned, the position differs. As seen
above, the Child Care Act does not permit such couples to adopt children jointly.
This prohibition only extends to potential joint adoptive parents and therefore will
not prevent one of the heterosexual life partners from adopting a child and hence
becoming the sole adoptive parent. Although Smith and Robinson opine that
there "is no justification for this position after the coming into operation of the Civil
Union Acf',559 it may be argued that the position of heterosexual cohabitants is
not as dire as this quote may indicate. This is so because, although the Act's
provisions dealing with parental responsibilities and rights agreements are not
yet in operation.t''" section 30 of the Children's Act (which is operational) allows
"more than one person" to exercise parental responsibilities and rights over a
child.561 Furthermore, according to subsection (3):
556 2008: 83.
557 2008(a): E29.
558 See par [44].
559 2008(a): 370 (italics added).
560 See section 22 of the Act.
561 Section 30(1).
323
A eo-holder of parental responsibilities and rights may not surrender or transfer those
responsibilities and rights to another eo-holder or any other person, but may by
agreement with that other eo-holder or person allow the other eo-holder or person to
exercise any or all of those responsibilities and rights on his or her behalf
Consequently, in the event of one of the heterosexual life partners indeed
adopting the child and in so doing becoming the sole adoptive parent, section 30
creates the impression that he or she may enter into an agreement with the other
life partner ("other person") which will permit the other partner to "exercise any or
all of those responsibilities and rights on his or her behalf." Therefore, although
the other life partner will not be the child's adoptive parent as such, it appears as
if he or she will in consequence of such an agreement be able to exercise
parental responsibilities and rights in respect of that child. However, it is
submitted that a careful reading of section 30(3) leads to the conclusion that the
section in question provides no relief to the problem at hand: Section 30(3) only
permits a "co-holder"562 of parental responsibilities and rights to allow "another
person" to exercise the same on his or her behalf. On this basis it could be
argued that the section requires a minimum of two co-holders from the outset. In
other words, only a eo-holder can allow someone else to exercise the parental
responsibilities and rights on his or her behalf-subsection 30(3) finds no
application in the situation where there is only one holder of parental
responsibilities and rights to begin with (such as in the case of a sole adoptive
parent). This difficulty once again illustrates the vast differences in the legal
positions in which same-sex and opposite-sex couples currently find themselves,
and reiterates the need for legal reform in this regard.
Nevertheless, it is submitted that the key issue in this regard is to remember that
the law of adoption must not be considered only from the perspective of the
partners themselves, but also from the point of view of the children who are
562 Emphasis added.
324
involved. If this is done it becomes clear that the position in which heterosexual
couples find themselves pending the coming into operation of section 231 of the
Children's Act may be unconstitutional for exactly the same reasons as those
relied on by Skweyiya AJ in the Du Toit case, namely that it "deprive[s] children
of a loving and stable family life" and thus "fail[s] to accord paramountcy to the
best interests of the children.,,563
4.2 The position of a lesbian life partner whose partner has given birth to
a child conceived by artificial insemination
4.2.1 Introduction
In J and Another v Director-General, Department of Home Affairs, and Others 564
the applicants contested the constitutional validity of section 5 of the Children's
Status Act 565which, at the time, provided that any child conceived as a result of
the artificial insemination of a wife with the gametes of a person other than one of
the spouses would be deemed to be the legitimate child of that husband and
wife.566 The Act restricted this deeming provision to married couples, with the
result that homosexual couples were excluded in toto and heterosexual couples
were included only if they were married to one another.
The applicants (J and B) were a lesbian couple who, at the time of the institution
of the High Court proceedings, had been living together for approximately eight
years. In 2001 twins were born to the second applicant (B) after the female ova
of her partner had been impregnated with the sperm of an anonymous donor.56?
The applicants applied to the Department of Home Affairs to be registered as the
563 At par [22].
564 2003 (5) SA 621 (CC).
565 82 of 1987.
566 Section s(1)(a). The Act further provided that "no right, duty or obligation" between the child
and the donor of the gametes (or his or her blood relations) save for where the donor was either
the birth-mother or the husband of the woman who was artificially inseminated-see section
5(2).
567 Par [2] and [3].
325
parents of the twins, with B being indicated as the "natural mother" of the children
and J as their "parent." (The latter term was inserted by the parties themselves
as the prescribed registration forms only made provision for a "father" in addition
to the "natural mother.") Not surprisingly, this request was denied on the basis
that the partners were unmarried and that neither of "the two ladies" could be
regarded as the twins' father.568 As a consequence, the constitutionality of
section 5 of the Act569was successfully challenged in the Durban and Coast
Local Division57oin as far as it failed to provide for a "permanent same-sex life
partner."?"
In the confirmation proceedings the Constitutional Court (per Goldstone J)
unanimously held-on the basis of the Ou Toit case572that had dealt with an
issue analogous to the one in casu-that (i) the Act unfairly discriminated against
the applicants as they would have been entitled to be recognised as the parents
of the twins but for their sexual orientation which was "inextricably linked" to their
unmarried status,573and (ii) that this position could not be justified in the light of
recent jurisprudence which had broadened the traditional scope of concepts such
as "family" and "spouse.,,574
As an aside, it is worth mentioning that counsel for the respondents had
contested the Court a quo's finding on the basis that the words "permanent
same-sex life partner" would unfairly discriminate against opposite-sex couples.
Therefore, they argued that the Court should instead have omitted the reference
to "same-sex" in its order.575 This submission was rejected by the Constitutional
568
See the judgment of the Court a quo (J and Another v Director General, Department of Home
Atfairs, and Others 2003 (5) SA 605 (D)) at par [2] and [9].
569 82 of 1987.
570
571 Now the KwaZulu Natal High Court, Durban-see the Renaming of High Courts Act 30 of 2008.
See par [7] of the Constitutional Court's judgment.
572
See Du Toit and Another v Minister of Welfare and Population Development and Others 2003 (2)
SA 198 (CC) discussed above.
573 Par [14].
574 Par [15].
575
Par [19].
326
Court on the basis of the same Court's earlier finding in Satchwell (1) S76 to the
effect that the separation of powers had to be respected and that the position of
heterosexual couples had never been brought before the Court.S77 The
correctness of this aspect of the finding in Satchwell (1) was discussed above
and need not be repeated.s78
Another point of interest as far as this case is concerned, is Goldstone J's
remarks pertaining to the relevance of the existence of a reciprocal duty of
support as far as the constitutionality of legislation that excludes homosexual life
partners is concerned. In this regard, the learned Judge stated that:
The precise parameters of relationships entitled to constitutional protection will often
depend on the purpose of the statute. For instance in [Satchwell (1)] where the issue
was pensions and related benefits, a mutual duty of support was an essential element.
In the present case, where the rights of children are implicated, this was not an essential
element, though it might have been an appropriate one. S79
This statement is somewhat confusing, as it is unclear what Goldstone J meant
by the words "though it might have been an appropriate one." The only
conclusion that can be drawn from this statement is that the Court was of the
opinion that even though the issue was not one which involved the estates of the
parties or the extension of the patrimonial consequences of marriage to life
partners, the existence of a reciprocal duty of support would nevertheless be a
relevant (albeit not essential) conslderation."?
In the end result, the Constitutional Court held that the word "married" was to be
struck out throughout section 5 of the Act and that the words "or permanent
same-sex life partner" were henceforth to be read in after the word "husband"
576 Satchwell (1) 2002 (6) SA 1 (cC); 2002 (9) BCLR986 (CC).
577 Par [19).
578 See 3.2.2 above.
579 Par [24).
580 See Schafer 2006: 630.
327
wherever the latter word appeared in the section. In addition, the words "as if the
gamete or gametes of that woman or her husband were used for such artificial
insemination" were to be struck out of section 5(1)(a). The effect of this order
was that section 5 of the Act was in future to be read as follows:
(1)
(a) Whenever the gamete or gametes of any person other than a woman or
her husband or permanent same-sex life partner have been used with
the consent of both that woman and her husband, or permanent same-
sex life partner for the artificial insemination of that woman, any child
born of that woman as a result of such artificial insemination shall for all
purposes be deemed to be the legitimate child of that woman and her
husband or permanent same-sex life partner [...].581
(b) For the purposes of para (a) it shall be presumed, until the contrary is
proved, that both the woman and her husband or permanent same-sex
life partner have granted the relevant consent.
(2) No right, duty or obligation shall arise between any child born as a result of the
artificial insemination of a woman and any person whose gamete or gametes
have been used for such artificial insemination and the blood relations of that
person, except where-
(a) that person is the woman who gave birth to that child; or
(b) that person is the husband or permanent same-sex life partner of such a
woman at the time of such artificial insemination.
4.2.2 Subsequent developments
The relief occasioned by this decision was, however, of short duration due to the
fact that the Children's Status Act was repealed as of 1 July 2007 by the
Children's Act 38 of 2005.582 As a point of departure, it must be noted that the
581
At this point the words "as if the gamete or gametes of that woman or her husband or
permanent same-sex life partner were used for such artificial insemination" were struck out.
582
Section 313 read with Schedule 4.
328
"new" Act contains a provisren (section 40) that is substantially similar to the
unmodified section 5 of the Children's Status ACt.583 The section in question
states the following:
(1)
(a) Whenever the gamete or gametes of any person other than a married
person or his or her spouse have been used with the consent of both
such spouses for the artificial fertilisation of one spouse, any child born
of that spouse as a result of such artificial fertilisation must for all
purposes be regarded to be the child of those spouses as if the gamete
or gametes of those spouses had been used for such artificial
fertilisation.
(b) For the purpose of paragraph (a) it must be presumed, until the
contrary is proved, that both spouses have granted the relevant
consent.
(2) Subject to section 296 [dealing with surrogate motherhood], whenever the
gamete or gametes of any person have been used for the artificial fertilisation
of a woman, any child born of that woman as a result of such artificial
fertilisation must for all purposes be regarded to be the child of that woman.
(3) Subject to section 296 [dealing with surrogate motherhood], no right,
responsibility, duty or obligation arises between a child born of a woman as a
result of artificial fertilisation and any person whose gamete has or gametes
have been used for such artificial fertilisation or the blood relations of that
person, except when-
(a) that person is the woman who gave birth to that child; or
(b) that person was the husband of such woman at the time of such
artificial fertilisation.
It is submitted that section 40 contains an interpretative problem in that
subsection (1)(a) is capable of bearing two interpretations. The first (or ordinary
interpretation) is that which was ostensibly intended by the Legislature, namely
583 Heaton 2007: 3-42; 2008(a): 51.
329
that if A (a male) and B (a female) are married to one another and the gametes of
a third person (C) are used to fertilise B artificially, any child born of B is regarded
as being the child of A and B for all intents and purposes. As Heaton584
mentions, this interpretation will correspond with section 40(2). The second
interpretation (or wider interpretation) is one which, although not probable is
submitted nevertheless to be possible. It is constructed on two premises namely
that the term "artificial fertilisation" includes surrogate motherhood585 and
secondly that subsection (1)(a) contains no indication of the fact that it is not
intended to apply within the context of surrogacy. Bearing this in mind, the
second interpretation envisions a situation where a female married woman is
impregnated as a surrogate mother. On this basis, section 40(1 )(a) could be
interpreted in a totally opposite fashion: Suppose that in the example above C
(female) is married to 0 (male). Suppose further that A and B (the
commissioning parents) wish to have a child by way of surrogacy, and that A's
sperm is used to impregnate C as the surrogate mother. This state of affairs
could result in the reference to "spouses" and "married person" not referring to A
and B (as they did in the first interpretation) but instead referring to C and 0, with
the absurd consequence that the child born of C would be presumed to be her
and D's child. This can be illustrated more effectively by superimposing the
parties onto section 40(1 )(a) as it is currently framed, to wit:
Whenever the gamete or gametes of any person [that is to say AJ other than a married
person or his or her spouse fie C and DJ have been used with the consent of both such
spouses [C and DJ for the artificial fertilisation of one spouse [CJ, any child born of that
spouse [Cj as a result of such artificial fertilisation must for all purposes be regarded to
be the child of those spouses [C and DJ as if the gamete or gametes of those spouses
had been used for such artificial fertilization.
584 2007: 3-43.
585 See Heaton 2008: 50 and Clark 1993: 769, 770.
330
What makes this state of affairs problematic is the fact that there is no indication
in section 40(1 )(a) (as for example is the case with section 40(2)) that it must be
read subject to the Act's provisions regulating surrogacy. This implies that a
direct conflict could potentially arise between the wider interpretation of section
40(1 )(a) and the principles prescribed for surrogacy in the (yet to be enacted)
chapter 19 of the Act. In order to remedy this defect, it is submitted that a
proviso be inserted after the current final sentence to the effect that section
40(1 )(a) shall not be interpreted so as to include surrogacy arrangements. This
aspect is dealt with in more detail below.s86
Over and above the interpretative problems which it poses, two further
problematic aspects of this section are worth exploring in further detail for the
purposes of this study:
4.2.2.1 The constitutionality of the Act and the so-called "choice argument"
Bearing the finding in the J case in mind, it is immediately apparent that section
40 of the Children's Act fails to provide for children born to unmarried same-sex
life partners as being born of a married couple.s8? Consequently, it can be
argued that the Act is prima facie unconstitutional.P'" HeatonS89 submits, in
response to the latter contention, that:
[IJt might, however, be argued that because same-sex couples now have the option of
entering into a legally recognised civil union, their fundamental rights and those of any
child they have as a result of artificial fertilisation are not infringed by section 40, or that
any infringement there may be is justified by the couple's choice not to enter into a civil
union.
586 See 4.3.3 below.
587 In the past, such a child would have been termed a "legitimate" child. The Children's Act 38 of
2005 instead focuses on the marital status of the child's parents-see Heaton 2008: 49; 2007: 3-
3.
588 See Cronjé and Heaton 2004: 233 (at note 47) writing before the Civil Union Act 17 of 2006.
589 2008: 51.
331
The argument that section 40 is not unconstitutional as the choice to marry is
now available to all couples regardless of their gender is supported by Heaton in
an earlier work59o and by LOUW.591 It is submitted that this contention must be
considered in further detail.
(a) 592LOUW clearly supports this contention (which for the purposes of this
study is described as the "choice argument"), since, in her opinion, the
decision in J was premised on the basis that same-sex marriage was
impossible at the time of the judgment. While it must be conceded that
Goldstone J indeed applied one of the findings in the Du Toit case-
namely that it was "the applicants' status as unmarried persons which
currently precludes them from joint adoption of the siblings is inextricably
linked to their sexual orientation"-to find that the Children's Status Act
discriminated unfairly, it is submitted that this was merely one of the
factors upon which the judgment was premised. This is illustrated by the
fact that, in considering whether or not the unfair discrimination of the
legislation in casu could be justified, Goldstone J again quoted from the
Du Toit case in which Skweyiya AJ had stated that:
In this regard, [the impugned provisions of the Child Care Act 74 of 1983 and the
Guardianship Act 192 of 1993] are not the only legislative provisions which do
not acknowledge the legitimacy and value of same-sex permanent life
partnerships. It is a matter of our history (and that of many countries) that
these relationships have been the subject of unfair discrimination in the past.
However, our Constitution requires that unfairly discriminatory treatment of
such relationships cease. It is significant that there have been a number of
recent cases, statutes and government consultation documents in South Africa
which broaden the scope of concepts such as "family", "spouse" and "domestic
relationship", to include same-sex life partners. These legislative and
590
2007: 3-42 and 3-43.
591
2007: 327 and 330.
592 2007: 327.
332
jurisprudential developments indicate the growing recognition afforded to
same-sex relationships.
The emphasised portions of this extract highlight the fact that the Courts in
both Du Toit and in J were of the opinion that same-sex life partners were
discriminated against as a particular class of relationship which differed
from marriage.593 The discrimination to which such couples were
subjected was therefore not confined to the fact that they could not marry
at the time, but also occurred in that their relationships as such were not
recognised. This, it is further suggested, explains why Skweyiya j also
categorically mentioned the fact that concepts such as "family", "spouse"
and "domestic relationship" were being broadened: If the "choice
argument" were henceforth to exclude permanent same-sex life partners
from the ambit of the Act, this would serve to narrow these concepts
instead of maintaining the trend of broadening them in accordance with
the behests of the Constitutionï"
(b) The second (and probably most potent) reason for submitting that the
"choice argument" is untenable within the context of this type of legal
problem is the fact that it focuses only on the partners themselves without
taking the best interests and fundamental rights of the children into
account.F" The necessity of taking such interests and rights into account
593
See National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
at par [36].
594
See Bonthuys 2007: 531: "In fact, by broadening the categories of people who can get married,
such legislation retains and even strengthens the position of marriage as the template and ideal
for all other relationships."
595
It is interesting to note that although Goldstone J mentioned the fact that "the rights of children
[were] implicated" in the J case, he did not specifically address the issue of the twins' rights.
This, it is submitted was an oversight, especially in view of the fact that the Court a quo had
earlier held that the matter "very fundamentally concern[ed] the children in every aspect of it
and [that it was] vital to take account of their best interests" (at par [8]) and later found the
differentiation between married and unmarried couples to constitute "discrimination on the
grounds of social origin and birth" (see par [27] of Magid J's judgment in the Court a quo).
333
is borne out by the Constitution itselp96 and by the Children's Act.59? The
argument that section 40 of the Children's Act in its unmodified state is
constitutionally valid simply due to the fact that same-sex couples now
have the option of marriage available to them would therefore contravene
a constitutional imperative and its concomitant legislative supplement.
It is important to note that although it is correct to state that the issue at
hand is whether the child conceived as a result of artificial fertilisation is
deemed to be born of married parents (in other words in the pre-Children's
Act sense of being born within wedlock), sight should not be lost of what
this issue truly entails. This is because it is easy-particularly where
unmarried couples are concerned-to overlook the deeper significance of
this question, namely whether the life partner other than the birth mother
can for all intents and purposes be regarded as being the parent of the
child. For example, if such a life partner were not to be regarded as the
parent of a child born of the birth mother this would imply that
(notwithstanding the fact that he or she had willingly consented or been
involved in the decision to impregnate the birth mother) no legal duty of
support could arise between that partner and the child as he or she is not
a "spouse" (or civil union partner).598 This would possibly even be the
case where (as on the facts of the J case) a female life partner's oocytes
had been used along with donor sperm to impregnate the birth mother by
way of in vitro fertilisation, as the definition of "parent" in section 1 of the
Children's Act categorically excludes "any person who is biologically
related to a child by reason only of being a gamete donor for purposes of
596
See section 28(2) of the Constitution: "A child's best interests are of paramount importance in
every matter concerning the child."
597
See inter alia sections 6(2); 7; 9; 10; 31 of Act 38 of 2005.
598
Consequently, even though it is true, as Lupton (2008: J 126) mentions, that "[t]he liability of a
husband to maintain an AID [artificial insemination by donor] child born to his wife will hinge on
the issue of consent," it appears as if the fact that the life partner is not a "spouse" in terms of
section 40 will exclude such a partner's liability for maintenance.
334
artificial fertilisation.,,599 Such a state of affairs would clearly not serve the
best interests of the child so conceived.
(c) Thirdly, the contention that the "choice argument" cannot succeed within
the context of section 40 of the Children's Act of 2005 is supported by
other provisions of the same Act. An example hereof is to be found in the
sections of the Act which will in future regulate adoption.6oo This branch of
the law is chosen as an example specifically in the light of the Du Toit
case (in which the failure of relevant legislation to provide for joint
adoption by same-sex couples was held to be unconstitutional) as the
rationale employed in that case was for the most part also employed in the
J case.601 Over and above providing for "a husband and wife" to adopt a
child jointly, section 231 of the Act also provides for "partners in a
permanent domestic life-partnership" to do the same. It is noteworthy that
the Act does not differentiate between heterosexual and homosexual
unmarried couples. Consequently, if the Act is prepared to allow
unmarried persons to adopt children, it is submitted that there is no reason
for the Act to regard a child born to such a couple by way of artificial
fertilisation as not being the child of both of those unmarried parents.
(d) One final aspect to be borne in mind is the fact that the "choice argument"
has, as discussed above, been criticised within the context of both
heterosexual and homosexual couples, to the extent that it has been
suggested earlier in this Chapter that the "contextualised choice model"
dictates that this argument should only have a role to play in limited
circumstancesP'" It is submitted that this criticism could also strengthen
599 See para (b) of the definition of "parent."
600 Chapter 15 (sections 228 - 253).
601 See point (a) above.
602 See 3.3.2.2 above. As far as homosexual couples are concerned it is particularly interesting to
note Wood-Bodley's submissions (2008(a): 54 et seq and 2008(b): 260 and 266) regarding the
effects of homophobia on the decision to marry or to conclude a civil partnership.
335
the argument as to why the failure of section 40 to provide for life partners
is unconstitutional.
In the light of the aforesaid it is submitted that Louw's statement does not reflect
the true premise upon which the judgment in J was based. In addition, her
contention603that the Legislature's reference to the word "spouse" is indicative of
a conscious choice not to provide for same-sex life partners cannot be
supported. It is submitted that the Act's failure to provide for life partners
(whether of the same or opposite sex) both to be regarded as the parents of
children conceived of artificial fertilisation is an oversight which should be
remedied as soon as possible. Moreover, a combination of considerations (a) -
(d) as explained in the preceding discussion highlights the fact that the "choice
argument" should not be relevant in matters dealing with children. In such
instances the best interests of the children should be the paramount
consideration.
4.2.2.2 Practical consequences of section 40 of the Act: An analysis of the
Act's differential treatment of heterosexual married and unmarried
couples; male and female same-sex couples and relationships
involving persons who have legally altered their sex description
(a) Opposite-sex couples
Assume that A (male) and B (female) are a heterosexual married couple. The
ordinary interpretation of section 40(1 )(a)604would lead to the conclusion that if B
were to be fertilised artificially with the sperm of an outsider, A and B would be
deemed to be the parents of the child so conceived.
603
Louw 2007: 330.
604
See 4.2.2 above.
336
If A and B were an unmarried couple, section 40(1 )(a) would not apply. If
however B were artificially fertilised and later gave birth to a child, section 40(2)
would come into play with the result that the child would be regarded as B's child.
Until section 231 of the Children's Act comes into operation, A would not be able
to adopt the child.
(b) Same-sex couples
As far as homosexual couples are concerned section 40 will apply within the
context of same-sex relationships as the references in the section to "husband",
"wife", "spouse" and "married person" will be interpreted so as to include such
couples who have married one another or have concluded a civil partnership in
terms of the Civil Union Act 17 of 2006.605
This notwithstanding, it is submitted that the Act will differentiate between male
and female same-sex spouses or civil union partners in the event of a child
having been conceived by artificial fertilisation.
i) Female couples
Assume that a lesbian couple (A and B) have married one another or entered
into a civil partnership. On the ordinary interpretation of section 40(1 )(a)606any
child born to one of them as a result of artificial fertilisation will be regarded as
the child of A and B and no further problems could arise. This state of affairs
would be confirmed by section 40(2).607
605
Section 13. Also see Heaton 2007: 3-42; 3-43; Louw 2007: 326 and 330.
606
See the explanation of the possible interpretations of section 40(1)(a)) in 4.2.2 above.
607
In the unlikely event of a surrogate mother being used to bear a child for a lesbian couple, the
possibility of the second interpretation of section 40(1)(a) would have to be borne in mind.
Pending the enactment of chapter 15 of the Act, this could result in the child born of a married
surrogate mother being regarded as being the child of the surrogate.
337
If A and B were an unmarried couple, section 40(1 )(a) could not apply.
Nevertheless, in terms of section 40(2), the child conceived by artificial
fertilisation will be presumed to be the child of the birth mother. The other life
partner will be able to adopt the child in light of the decision in Ou Toit v Minister
of Welfare and Population Development and Others.60B
ii) Male couples
If A and B in the example were a married male couple, it is self-evident that
section 40(1 )(a) would not be able to apply on the ordinary interpretation of
section 40(1 )(a) as neither A nor B could be fertilised or could give birth to the
child. However, bearing in mind that the provisions on surrogacy have not yet
come into operation, section 40(2) could result in any child born of a surrogate
mother (C) as a result of her being artificially fertilised by the sperm of A or B
being regarded as the child of C and not of A or B.609This would imply that, until
the provisions regulating surrogacy come into operation, the only way in which
the same-sex married couple"? could both acquire parental responsibilities and
rights over the child would be to adopt the child jointly.611 This would be
permissible in view of the Ou Toit decision.
The same legal position would obtain if A and B were an unmarried couple.
(c) The position where one of the spouses has successfully applied for the
alteration of his or her sex description
The Alteration of Sex Description and Sex Status Act 49 of 2003 regulates the
position of persons who wish to alter their sex description in their birth register by
virtue of the fact that they are intersexed or as a consequence of their congenital
608
2003 (2) SA 198 (CC).
609
The second interpretation of section 40(1)(a) [see 4.2.2 above) would strengthen this conclusion.
610
Or a couple who have entered into a civil partnership.
611
See Louw 2007: 330.
338
sexual characteristics having been altered by gender reassignment surgery or by
natural evolvernent.?" In the event of such an application being successful, the
Act provides that such a person is regarded as being of the amended sex
description as from the date of the recording thereof.613
The impact of section 40 of the Children's Act 614 on the position of a person
whose sex description has successfully been altered in terms of Act 49 of 2003
will depend on the person's "new" sex description, and as a consequence hereof,
whether the marriage or life partnership entered into by such a person is viewed
by the law as being between two persons of the same or opposite sex.
At least four possibilities present themselves in this regard:
Possibilities 1 and 2: Sex description altered from male to female
1. Assume that A was born male and that A's sex description is later altered
from male to female. In consequence of a successful application in terms
of Act 49 of 2003, A will now for all legal purposes be regarded as being a
female. Should A marry a male person (B), the marriage will be a
heterosexual marriage. The issue of artificial fertilisation as contemplated
in section 40(1 )(a) would however in all probability not arise in this
scenario as neither A nor B would be capable of being fertilised or of
bearing the child. This would imply that, despite the fact that the marriage
is for all intents and purposes viewed by the law as being a heterosexual
marriage, the impact of section 40 of Act 38 of 2005 on the position of a
child conceived by artificial fertilisation will (pending the enactment of
chapter 19 of the Act) be the same as that of an all-male married same-
sex couple as explained in (b)(ii) above. This would imply that, bearing in
612 Section 1 of the Act defines an "intersexed" person as someone "whose congenital sexual
differentiation is atypical, to whatever degree."
613 Section 3(2).
614 Act 38 of 2005.
339
mind that the provisions on surrogacy have not yet come into operation,
section 40(2) could result in any child born of a surrogate mother (C) as a
result of her being artificially fertilised by the sperm of A615 or B being
regarded as the child of C and not of A or B.616 This would imply that until
the provisions regulating surrogacy come into operation, the only way in
which this heterosexual married coupre?" could both acquire parental
responsibilities and rights over the child would be to adopt the child jointly.
If A and B were an unmarried couple, section 40(2) would once again
imply that the child born of C was C's child. However, because of the fact
that A and B are regarded as a heterosexual couple, they would not be
able to adopt the child jointly until section 231 of the Children's Act 618
comes into operation.
2. On the other hand, if A (now female) marries a female person (C), the
marriage will be a same-sex marriage, with the result that the legal
position set out in (b)(i) above regarding female same-sex couples would
apply.
If A and C were an unmarried couple, section 40(2) would apply, with the
result that if C were fertilised artificially she-as the birth mother-would
be regarded as the parent of the child so born. As it is a same-sex life
partnership, A would be permitted to adopt the child in the light of the Du
Toit decision.
615
Assuming, for example, that A had frozen his sperm prior to the alteration of his sex.
616
The second interpretation of section 40(1)(a) [see 4.2.2 above] would strengthen this conclusion.
617
Or a couple who have entered into a civil partnership.
618
38 of 2005.
340
Possibilities 3 and 4: Sex description altered from female to male
3. Assume that (0) was born female and later had her sex description altered
to that of a male. If 0 were to marry a female person (E), artificial
fertilisation as contemplated in section 40(1 )(a) could take place if E were
to be fertilised artificially by the sperm of an anonymous donor. In such an
instance, 0 and E would be deemed to be the parents of the child so
conceived.
However, if 0 and E were an unmarried couple section 40(1 )(a) would not
apply. If however E were artificially fertilised and later gave birth to a
child, section 40(2) would come into play with the result that the child
would be regarded as E's child. Until section 231 of the Children's Act
comes into operation, 0 would however not be able to adopt the child as
the Child Care Act makes no provision for joint adoption by heterosexual
life partners.
4. If 0 (now male) were to marry another male person (F), the issue of
artificial fertilisation as contemplated in section 40(1 )(a) would once again
in all probability not arise in this scenario as neither 0 nor F would be
capable of being fertilised or of bearing the child.619 This would imply that
the impact of section 40 of Act 38 of 2005 on the position of a child
conceived by artificial fertilisation would (pending the enactment of chapter
15 of the Act) be the same as that of an all-male same-sex couple. Any
619 In the absence of any case law on the matter, it is uncertain to what extent the Alteration of Sex
Description and Sex Status Act 49 of 2003 requires the person applying for gender reassignment
to assume the biological characteristics of the "new" sex. For example, it is unclear whether a
person in the position of D in this example would have to prove that he or she is no longer
capable of procreating as a female (D's original sex) before the application for the alteration of
D's sex description from female to male would be successful. According to Lupton (2008: J4)
gender reassignment from female to male "requires a mastectomy since testosterone treatment
only results in a moderate reduction in breast size. The next step involves a hysterectomy and
the removal of the ovaries. Phallus construction usually commences in conjunction with the
hysterectomy and is adequate for the purposes of urination but is not suitable for coitus"
(footnotes omitted).
341
child born of a surrogate mother (G) as a result of her being artificially
fertilised by the sperm of F would, in consequence of section 40(2), be
regarded as the child of G and not of F.62o This would imply that, until the
provisions regulating surrogacy come into operation, the only way in which
the same-sex married couple621 could both acquire parental
responsibilities and rights over the child would be to adopt the child jointly.
The same legal position would obtain if 0 and F were an unmarried
couple.
(dj Summary
The position described above is summarised by the diagram on the page that
follows (Figure 5.1):
620
The second interpretation of section 40(1)(a) [see 4.2.2 above] would strengthen this conclusion.
621
Or a couple who have entered into a civil partnership.
342
OPPOSITE SEX SAME-SEX relationships PERSONS WITH AN ALTERED SEX DESCRIPTION
relationshi ps
FEMALE MALE "New" sex FEMALE "New" sex MALE
Married Unmarried Married Unmarried Married Unmarried Married to: Unmarried and Married to: Unmarried and
living with: living with:
Female Male Male Female Female Male Male Female
Applicable provision in Children's Act 38 of 2005:
40(1)(a) I 40(2) I 40(1)(a) I 40(2) 140(2) 140(2) I 40(1)(a) I 40(2) 140(2) 140(2) I 40(1)(a) I 40(2) 140(2) 140(2)
Consequences regarding parentage and adoption:
Both are Only birth Both Only birth Surrogate Surrogate Both Surrog Surrog Birth Both Surrog Surrog Birth
parents mother is are mother is birth birth are birth birth mother are birth birth mother
parent parents parent mother is mother is parents mother mother is parents mother mother is
parent parent is is parent is is parent
parent parent parent parent
Other life Other life Same-sex Same-sex Hetero Hetero Other Both Both Other
partner partner married unmarried married life life may may life
may not may adopt couple couple couple partners partner adopt adopt partner
yet adopt may may adopt may may not may jointly jointly may
adopt adopt yet adopt not yet
jointly adopt adopt
jointly
-- ---
Figure 5.1: The legal position prior to the coming into operation of the remainder of the Children's Act 38 of 2005
343
(e) The position that will obtain once chapter 19 of the Children's Act 38 of
2005 comes into operation
i) Introductory remarks
In order to appreciate the impact of the Children's Act's chapter dealing with
surrogate motherhood (chapter 19), the following introductory remarks need to
be made:
• Section 1 of the Act defines the concepts "surrogate mother";
"commissioning parent" and "surrogate motherhood agreement" as
follows:
'surrogate mother' means an adult woman who enters into a surrogate
motherhood agreement with the commissioning parent;
'commissioning parent' means a person who enters into a surrogate
motherhood agreement with a surrogate mother;
'surrogate motherhood agreement' means an agreement between a surrogate
mother and a commissioning parent in which it is agreed that the surrogate
mother will be artificially fertilised for the purpose of bearing a child for the
commissioning parent and in which the surrogate mother undertakes to hand
over such a child to the commissioning parent upon its birth, or within a
reasonable time thereafter, with the intention that the child concerned
becomes the legitimate child of the commissioning parent.
• A "commissioning parent" can be a single person, or a person involved in
a "permanent relationship." 622
622
As deduced from section 293(1), which states that: "Where a commissioning parent is married or
involved in a permanent relationship, the court may not confirm the agreement unless the
344
• The commissioning parent(s) is / are required to enter into a "surrogate
motherhood agreement" with the surrogate mother. This agreement must
be in writing and must be confirmed by a High Court with appropriate
jurisdiction before the agreement will be valid. 623
• In the case of a commissioning parent who is involved in a permanent
relationship, the High Court may not confirm the surrogate motherhood
agreement unless the "husband, wife or partner" of such parent has
consented in writing to the agreement and, in so doing, has become a
party thereto. 624
• A surrogate mother may not be fertilised artificially unless the agreement
has been confirmed by the High Court. Once confirmed, the artificial
fertilisation must take place within 18 months of such confirmation. 625
• A valid surrogate motherhood agreement has the effect that any child born
of the surrogate mother in consequence of the agreement is for all
purposes regarded to be the child of the commissioning parent(s) as from
childbirth. 626
• This notwithstanding, once the child has been born, a surrogate mother
"who is also a genetic parent of the child" may terminate the agreement
within sixty days of the child's birth. 627 Termination takes place by written
notice to the Court concerned, and, once confirmed by that Court, the
parental rights which would have vested in the commissioning parent(s)
husband, wife or partner of the commissioning parent has given his or her written consent to the
agreement and has become a party to the agreement."
623 Section 292.
624 Section 293(1).
625
Section 296. This section is particularly relevant as it is specifically referred to as a precondition
to section 40(2) of the Act.
626 Section 297(1)(a).
627 Section 298(1).
345
are terminated and now vest in "the surrogate mother, her husband or
partner, if any, or if none, the commissioning father." 628
Bearing the above in mind, the enactment of chapter 19 of the Act will have a
definite impact on the treatment of heterosexual married and unmarried life
partners, male and female same-sex life partners and relationships involving
persons who have legally altered their sex description. This impact can be
illustrated by projecting the changes (in the shaded areas) onto the same
diagram as Figure 5.1 above. It must be noted that Figure 5.2 illustrates the
legal position if chapter 19 were to become operational in isolation. In other
words, it is presumed that the provisions of the Children's Act that deal with
adoption (such as section 231) are not yet operative.
The diagram assumes that a valid surrogate motherhood agreement has been
entered into and carried out.
Figure 5.2 (overleaf) illustrates the position once chapter 19 becomes operational
in isolation:
628
Section 299(a) read with section 298(1) and (2).
346
OPPOSITE SEX SAME-SEX relationships PERSONSWITH AN ALTEREDSEXDESCRIPTION
relationships
FEMALE MALE "New" sex FEMALE "New" sex MALE
Married Unmarried Married Unmarried Married Unmarried Married to: Unmarried and Married to: Unmarried and
living with: living with:
Female Male Male Female Female Male Male Female
Applicable provision in Children's Act 38 of 200S:
40(1)(a) 40(2) 40(1)(a) 40(2) 40(2) 40(2) 40(1)(a) 40(2) 40(2) 40(2) 40(1)(a) 40(2) 40(2) 40(2)
subject subject to subject subject subject subject
to 296 296 to 296 to 296 to 296 to 296
Consequences regarding parentage and adoption (Assuming that a valid surrogate mother agreement was entered into):
Both Only birth Both Only birth Chapter Chapter Both Chapter Chapter Birth Both Chapter Chapter Birth
are mother is are mother is 19 of 19 of are 19 of 19 of mother are 19 of 19 of mother
parents parent parents parent Act: Act: parents Act: Act: is parents Act: Act: is
parent parent
Commis Commis Commis Commis Commis Commis
parents parents parents parents parents parents
are are are are are are
Other life Other life parents parents of parents parents Other parents parents Other
partner partner of child. child. of child. of child. life of child. of child. life
may not may adopt partner partner
yet adopt No No No No may No No may
adoption adoption adoption adoption adopt adoption adoption not yet
needed needed needed needed needed needed adopt
-~ -- ----
Figure 5.2: Effect of the coming into operation of chapter 19 of the Act (light grey shaded areas)
347
(t) The legal position if chapter 19 of the Children's Act as well as section 231
of the Act were to come into operation
As seen above, section 231 of the Act permits a child to be adopted:
(a) jointly by-
(i) a husband and wife;
(ii) partners in a permanent domestic life-partnership; or
(iii) other persons sharing a common household and forming a permanent
family unit;
(b) by a widower, widow, divorced or unmarried person;
(c) by a married person whose spouse is the parent of the child or by a person
whose permanent domestic life-partner is the parent of the child;
(d) by the biological father of a child born out of wedlock; or
(e) by the foster parent of the child.
If this section were to come into operation along with chapter 19 of the Children's
Act 38 of 2005, this would have the effect that joint adoption would be permitted
within the context of all life partnerships (whether heterosexual or homosexual)
and that the life partner of the birth mother of a child conceived by artificial
fertilisation would be permitted to adopt the child. However, bearing the current
wording of section 40 in mind, adoption would be the only way for the life partner
of the birth mother to be regarded as the parent of the child. On the page that
follows, the legal position after the coming into effect of both section 231 and
chapter 19 of the Children's Act is illustrated. The effect of chapter 19 is
illustrated by the same grey shading as in Figure 5.2, while that of section 231 is
illustrated by the darker grey shaded sections:
348
OPPOSITESEX SAME-SEX relationships PERSONSWITH AN ALTEREDSEXDESCRIPTION
relationships
FEMALE MALE "New" sex FEMALE "New" sex MALE
Married Unmarried Married Unmarried Married Unmarried Married to: Unmarried and Married to: Unmarried and
living with: living with:
Female Male Male Female Female Male Male Female
Applicable provision in Children's Act 38 of 2005:
40(1)(a) 40(2) 40(1)(a) 40(2) 40(2) 40(2) 40(1)(a) 40(2) 40(2) 40(2) 40(1)(a) 40(2) 40(2) 40(2)
subject subject to subject subject subject subject
to 296 296 to 296 to 296 to 296 to 296
......,..--=-....,...,.C;..;o".n..sequences regarding parentage and adoption (Assuming that a valid surrogate mother agreement was entered into):
Both -bnly bi~ Both Only birth Chapter Chapter Both Chapter Chapter Birth Both Chapter Chapter _ irth -
are 'mother is~ are mother is 19 of 19 of are 19 of 19 of mother are 19 of 19 of -~other
parents ~parent .:;: parents parent Act: Act: parents Act: Act: is parents Act: Act:
:J C~ parent ~rent
~ '/~ Commis Commis Commis Commis Commis Commis
:. ,f:m parents parents parents parents parents parents ).
i 0,' are are are are are are f',
,~her . 1If!, Other life parents parents of parents parents Other parents parents )ther
'partner .r- _ partner of child. child. of child. of child. life of child. of child. ..~fe .
mayadoP« may adopt partner ~ner .
';,. : tJ No No No No may No No ay'
'! ~f adoption adoption adoption adoption adopt adoption adoption *pt.
,,~ ~ needed needed needed needed needed needed _ 4
;1_ . ~_:j 0 oe' "
Effects of section 231 of Act 38 of 2005
Figure 5.3: Effect of section 231 read with chapter 19 of the Act
349
As can be seen from Figure 5.3, the difficulty that remains is that, despite the
coming into operation of section 231, no life partner of a birth mother
(irrespective of sex) is legally regarded as being the parent of the child as from
birth.
(g) Remaining differential treatment after section 231 and chapter 19 have
come into operation
As seen above, even if section 231 as well as chapter 19 of the Children's Act 38
of 2005 come into operation, the law will still differentiate between married and
unmarried couples in that section 40(2) of the Act will still regard the birth mother
of a child conceived by artificial fertilisation to be the only parent in the case of
unmarried couples.
It is submitted that this position cannot be countenanced. This submission is
strengthened by the fact that, in the case of a surrogacy agreement, section 293
of the Act will in future require the life partner of a commissioning parent to
consent to the surrogacy agreement (and thereby become a party thereto) before
a Court is permitted to confirm the agreement. 629 Once the child is born, both
commissioning parents are then regarded as being the parents of the child. 630
On the other hand, the fact that section 40(1 )(a) of the Act does not make
provision for life partners implies (i) that the consent of such a partner is not
required for the artificial fertilisation of the birth mother, and (ii) that such persons
cannot be regarded as the parents of any children so conceived. Consequently,
adoption would be the only option for such couples.
It simply does not make sense to require the life partner of a commissioning
parent to consent to a surrogacy agreement (and thereafter to allow such life
partner to be the parent of the child), while neither requiring (nor permitting) the
629
Section 293(1).
630 Section 293(1).
350
same in the case of artificial fertilisation, thereby forcing such a partner to adopt
the child in order to be regarded as its parent.
It is consequently suggested that section 40(1 )(a) and (3) should be amended so
as to provide for a life partner who has consented to the artificial fertilisation of
his or her partner also to be regarded as the parent of the child so conceived.
Doing so would not only eliminate the differential treatment of such persons, but
would also eliminate the circuitous (and unnecessary) adoption route which they
would otherwise be required to take.
In order to accomplish this, it is suggested that the amendments to the fore-
runner of section 40 (namely section 5 of the Children's Status Act) 631 as
ordered by the Constitutional Court in J and Another v Director-General,
Department of Home Affairs, and Others 632 should in substance be transplanted
into the Act. The only deviation from the order in the J case would be that the
Act would simply provide for "permanent life partners" as opposed to same-sex
life partners only.
In order to facilitate the operational effect of this amendment, it is also suggested
that section 40(2) be amended so as to make its application subject to that of
section 40(1 )(a). If this is not done, section 40(1 )(a) and 40(2) would be in
conflict with one another to the extent that they both applied to an unmarried
woman who was fertilised artificially.
As these are not the only amendments suggested for section 40 of the Children's
Act, this aspect will be revisited in the concluding remarks to this section (see 4.3
below). For now, it will suffice to say that section 40(1 )(a) should be amended to
the extent suggested above.
631 82 of 1987.
632 2003 (5) SA 621 (CC) at par [28).
351
The effect of the amendments suggested for section 40 along with the coming
into operation of section 231 and chapter 19 of the Children's Act are illustrated
by Figure 5.4 (overleaf). It is important to note that if section 40 is amended as
this study suggests, this will have the effect of overlapping with the effect of the
coming into operation of section 231 of the Act (as shown by the dark gray
shaded areas in Figure 5.3). For this reason, the effect of the amended section
40 is also illustrated in the same dark grey shading in Figure 5.4.
352
OPPOSITE SEX SAME-SEX relationships PERSONSWITH AN ALTEREDSEXDESCRIPTION
relationships
FEMALE MALE "New" sex FEMALE "New" sex MALE
Married Unmarried Married Unmarried Married Unmarried Married to: Unmarried and Married to: Unmarried and
living with: living with:
Female Male Male Female Female Male Male Female
Applicable provision in Children's Act 38 of 2005:
40(l)(a) I1·~"'1, )(."1·t·~~ 40(l)(a) :4O(IK.' 40(2) 40(~) 40(l)(a) 40(~) 40(~) 4O[1)(a' 40(l)(a) 40(2) 40(2) ~ r1Ka)!, subject to subject to subject subject subject subject ,,; I{'
I' '296 296 to 296 to 296 to 296 to 296 F
--~Con-seq~uences regarding parentage and adoption (Assuming that a valid surrogate mother agreement was entered into):Both are IBoth '"' .... Both are -BOth are Chapter Chapter 19 Both are Chapter Chapter Both are Both are Chapter Chapter .hare
parents _parents !.:.~.'.'. parents parents 19 of Act: of parents 19 of 19 of parents parents 19 of 19 of ,.rents
~ '. ;~ Act: Act: Act: Act: Act: ' ,
• !
~.aNdooption".:~; . No Commis Commis Commis Commis No Commis Commis ; II D I'~i adoption parents parents are parents parents adoption parents parents •é ~tion ;. needed needed are parents of are are needed are are ~e(t, 1
, ,:; ;~t.:~;: " pare~ts child, pare~ts pare~ts pare~ts pare~ts "~~' .~"Iof child, No of child. of child, of child, of child. :~. _ :1
i~i! No adoption No No No No ". :adoption needed adoption adoption adoption adoption ci.: " ~!
, _ "--,~ _ __._needed needed needed __ needed needed ". - ..1
t t t r
Effect of amended section 40
Figure 5.4: Effect of amended section 40 read with section 231 as well as chapter 19 of the Act
353
4.3 Conclusions regarding adoption and artificial fertilisation
4.3.1 Conclusion: The "choice argument"
It is submitted that a globular approach comprising the considerations which
formed the true premise in both the J and the Du Toit cases; the broader scheme
of the Children's Act 38 of 2005 and the criticism which has been levelled at this
approach earlier in this Chapter highlights the fact that the so-called "choice
argument" cannot be relevant in instances where the interests of children are
concerned.
4.3.2 Conclusion regarding adoption within the context of life partnerships
The current position that allows all couples other than unmarried heterosexual life
partners to adopt children cannot be countenanced for the reasons set out in 4.1
above and is unconstitutional to the extent that it infringes upon the fundamental
rights of the child as contained in section 28 of the Constitution and consequently
does not accord pre-eminence to the best interests of children who could
otherwise be adopted by such couples. The enactment of section 231 of the
Children's Act (which will broaden the scope of persons entitled to adopt quite
considerably) is therefore eagerly anticipated.
4.3.3 Conclusions regarding artificial fertilisation and life partners
(i) Section 40 of the Children's Act has nullified the Constitutional Court's
judgment in J and Another v Director-General, Department of Home
Affairs, and Others. 633 The preceding discussion in 4.2 however
highlights, bearing the best interests of the child, the lack of validity of the
"choice argument" and the legislative scheme of the remainder of the Act
in mind, the necessity of making the following submissions:
633 2003 (5) SA621 (cc;
354
section 40 of the Act as it is currently framed is unconstitutional to
the extent that it has deviated from the Constitutional Court's order
in the J case (and therefore does not allow same-sex life partners
both to be regarded as the parents of a child conceived by artificial
fertilisation); and
the Act is also unconstitutional to the extent that it does not provide
for heterosexual life partners both to be regarded as the parents of
a child conceived as a result of artificial fertilisation.
(ii) Section 40(1 )(a) of the Act poses an interpretative problem when
considered in the light of surrogate motherhood and should be amended
in order to circumvent this difficulty. 634 This amendment is illustrated in
point (ix) below.
(iii) Pending the coming into operation of section 231 and chapter 19 of the
Children's Act, section 40 of the Act will differentiate in its treatment of
heterosexual married and unmarried couples; male and female same-sex
couples and relationships involving persons who have legally altered their
sex description. This differentiation is illustrated in Figure 5.1.
(iv) If section 231 and chapter 19 are enacted, the position will improve as far
as surrogacy and adoption by heterosexual life partners is concerned (see
Figures 5.2 and 5.3).
(v) Nevertheless, despite the coming into operation of section 231 and
chapter 19, life partners of persons artificially fertilised will still not (in
consequence of section 40(2) of the Act) be regarded as the parents of
children so conceived. It is submitted that this position is untenable.
634 See 4.2.2 above.
355
(vi) In the light of all of the above, it is suggested that section 40(1 )(a); 40(2)
and 40(3)(b) of the Children's Act should be amended.
(vii) The final issue that remains is to determine which terminology should be
adopted in the proposed amendments to section 40 of the Act. In this
regard, it is suggested that the safest route would be to suggest
terminology that is consistent with that employed by proposed legislation
that will in all probability regulate the legal position of life partners in future.
In this regard, the domestic partnership rubric dictates (as seen in Chapter
3) that the draft Domestic Partnership Bill, 2008 should serve as the
starting point. This Bill is dealt with comprehensively in Chapter 7 below
(where it is modified in accordance with the conclusions drawn in this Part
of this study and further aligned with other legislation as prescribed by the
domestic partnerships rubric). 635 At this stage it will suffice to say that the
Bill defines the term "domestic partnership" as including both "registered"
and "unregistered" domestic partnerships. However, it does not deal with
the position of children conceived by artificial fertilisation in a satisfactory
or clear-cut manner, and the solution to this problem will be dealt with in
Chapter 7. 636 For now cognisance can be taken of the fact that the
provisions of the Children's Act and the Bill itself require urgent
amendment in order for true alignment between these two pieces of
legislation to be achieved. However, the first step towards achieving this
goal is to make use of consistent terminology, and to this end it is
suggested that the term "domestic partnership" be used in the proposed
amendments to section 40, and that the reference to "Iife-" in section 231
635
See 5 in Chapter 3 above.
636
In 12.2.4 of that Chapter it will be suggested that the definition of "child of a domestic
partnership" must be amended so as to specifically provide for such children, and that a
definition of "child born into a domestic partnership" should be inserted so as to ensure that
clause 17 of the Bill (which presumes the male partnerto a registered domestic partnership to be
the biological father of a child born into that relationship) functions effectively.
356
of the Children's Act be amended to refer instead to a "domestic
partnership." 637
(viii) As an outflow of point (vii) above, it is also suggested that definitions of
"domestic partner", "domestic partnership" and "unregistered domestic
partnership" be inserted into section 1 the Children's Act. The proposed
definitions should read as follows:
ltdomestic partner" means a partner to a registered or unregistered domestic
partnership in accordance with the Domestic Partnerships Act of ...
ltdomestic partnership" means a registered or unregistered domestic
partnership in accordance with the Domestic Partnerships Act of ...
"unregistered domestic partnership" means an unregistered domestic
partnership in accordance with the Domestic Partnerships Act of ... 638
(ix) Bearing points (i) - (viii) in mind, the suggested amendments to section 40
are the following:
Deleting the word "married" wherever it appears in the section;
Inserting the words "or permanent domestic partner" in section
40(1 )(a) and (b) after the words "spouse" and "spouses";
Deleting the words "as if the gamete or gametes of those spouses
had been used for such artificial fertilisation" in section 40(1 )(a);
637
This aspect is addressed again in Chapter 7, where it is also suggested that a number of other
sections of the Children's Act of 2005 (such as sections 21 and 242(1)(a)) will also have to be
amended so as to be aligned with the Bill.
638
Although the necessity for the insertion of this particular definition will not be immediately
apparent, it is necessary so as to align the Bill with section 21 of the Children's Act of 2005
("Parental responsibilities and rights of unmarried fathers"). This will be explained in detail in
12.2.4 in Chapter 7.
357
Inserting a proviso after the final sentence (in its amended form) to
the effect that section 40(1 )(a) shall not be interpreted so as to
include surrogacy arrangements;
Inserting the words "in circumstances other than those
contemplated in subsection 1(a)" after the words "whenever the
gamete or gametes of any person have been used for the artificial
fertilisation of a woman" in section 40(2); and
Inserting the words "or permanent domestic partner" after the word
"husband" in section 40(3)(b).
Section 40 of the Act should be amended to read as follows (words
inserted are italicised and words deleted are indicated by [... l):
Rights of child conceived by artificial fertilisation
(1)
(a) Whenever the gamete or gametes of any person other than a
[ ... ] 639 person or his or her spouse or permanent domestic
partner have been used with the consent of both such spouses
or permanent domestic partners for the artificial fertilisation of
one spouse or permanent domestic partner, any child born of
that spouse or permanent domestic partner as a result of such
artificial fertilisation must for all purposes be regarded to be the
child of those spouses or permanent domestic partners:
Provided that this subsection shall not be interpreted in such a
way as to include a surrogate motherhood agreement.
(b) For the purpose of paragraph (a) it must be presumed, until the
contrary is proved, that both spouses or permanent domestic
partners have granted the relevant consent.
639
It is proposed that the word "married" be deleted.
358
(2) Subject to section 296, whenever the gamete or gametes of any person
have been used for the artificial fertilisation of a woman in
circumstances other than those contemplated in subsection 1(0), any
child born of that woman as a result of such artificial fertilisation must
for all purposes be regarded to be the child of that woman.
(3) Subject to section 296, no right, responsibility, duty or obligation arises
between a child born of a woman as a result of artificial fertilisation and
any person whose gamete has or gametes have been used for such
artificial fertilisation or the blood relations of that person, except when-
(a) that person is the woman who gave birth to that child; or
(b) that person was the husband or permanent domestic partner of
such woman at the time of such artificial fertilisation.
5. CONCLUSION
In this Chapter the most important judicial pronouncements on the legal position
of life partners in South Africa were analysed with a view to drawing conclusions
for the purposes of modifying the Domestic Partnerships Bill, 2008 in accordance
with the domestic partnership rubric advocated in Chapters 2 and 3. One of the
major contributions in this regard was the development in this Chapter of the so-
called "contextualised choice model." This model was developed on the premise
of a number of important lessons regarding the distinction between need-based
and property disputes and their relationship with the so-called "choice argument",
namely the contention that parties who have elected not to marry one another
are, by virtue of this choice, not entitled to avail themselves of the protection
provided by matrimonial (property) law. While traditionally applied only within the
context of heterosexual couples, this argument has, since the coming into
operation of the Civil Union Act 17 of 2006, acquired an extra dimension due to
the fact that same-sex couples now also have the option of marriage (or similar
359
formalisation) 640 available to them. However, on the basis of a detailed analysis
of Volks NO v Robinson coupled with valuable research conducted by authors
such as Wood-Bodley, 641 it was concluded that neither heterosexual nor
homosexual unmarried couples necessarily have the option of formalising their
relationships available to them. This finding was taken a step further by coupling
it with the rationale employed by the highest Courts in South Africa as a result of
which it was concluded that the "choice argument" should play no role in deciding
whether or not to extend a need-based claim that was previously reserved for
spouses to unmarried partners, but that the vital ingredient for the extension
thereof should instead be the presence or otherwise of a reciprocal duty of
support. As a corollary hereof, the preliminary conclusion was reached that the
"choice argument" may have some role to play in instances where life partners
who have elected not to formalise their relationships attempt to avail themselves
of matrimonial property law in order to solve their property disputes. In the end
result, it is submitted that cognisance must be taken of these findings in the
legislation that will be suggested in consequence of the domestic partnership
rubric.
Regarding the extent to which the concept of consortium omnis vitae is currently
recognised between life partners, it was concluded that a nuanced form of this
concept has indeed been recognised by our Courts, but that this notion requires
further development (preferably by the Legislature) in order for it to be
comparable with that encountered in the law of marriage. It is suggested that the
Domestic Partnerships Bill, 2008 as modified in accordance with the rubric is the
ideal vehicle for facilitating this process, as the Bill's distinction between
registered and unregistered domestic partnerships (and the concomitant
distinction between relationships wherein a formal public commitment has been
undertaken and those where there is none) would provide the ideal framework
640
By way of the civil partnership in terms of the Civil Union Act. Note that this option is also
available to heterosexual couples-see 3 in Chapter 3.
641
2008 (a): 46 et seq. Also see Bonthuys 2007: 540, 541 and De Vos 2007(a): 463 et seq.
360
within which the notion could be extended to such partners. This possibility will
be explored in Chapter 7.
In the final part of this Chapter the judicial developments regarding lesbian life
partners and children were considered. In this regard it was concluded that
section 40 of the Children's Act 38 of 2005 must be amended in order to ensure
a consistent legal position as far as children conceived by artificial fertilisation
and born in terms of surrogacy agreements are concerned, and that, while the
inconsistent position regarding all unmarried couples and children will be
ameliorated by the coming into operation of section 231 and chapter 19 of the
Children's Act, this inconsistency will only finally be resolved by proper alignment
of this Act with the prospective domestic partnership legislation developed in the
light of the rubric.
In the Chapter that follows the (piecemeal) protection provided by the law of
obligations and by legislation will be evaluated with a view to distilling further
principles for guiding the development of family law in general and the rubric in
particular.
361
CHAPTER 6:
PROTECTION PROVIDED BY THE LAW OF OBLIGATIONS AND
DEVELOPMENTS OCCASIONED BY THE LEGISLATURE
1. INTRODUCTION
As seen in the background to Chapter 11 and in the introduction toChapter 5 the law as it stood at 27 April 1994 did not extend any of theinvariable consequences of marriage to life partnerships. While the
previous Chapter has shown that in post-1994 South Africa the Courts have
extended certain consequences of marriage to unmarried couples, this
piecemeal recognition has not created a "law of life partnerships" as such.
Nevertheless, "the ordinary rules and remedies of the law,,2such as the law of
obligations (notably the law of contract) can in apposite circumstances be utilised
by life partners to obtain some form of recognition of their relationship, and to
assist in regulating the (patrimonial) consequences of its termination. In addition,
the Legislature has also provided piecemeal recognition to life partnerships over
the last seventy or so years. This Chapter aims to evaluate the efficacy of these
options.
See 1 in Chapter 1 above.
SALRC2006: 110.
362
2. PROTECTION PROVIDED BY THE LAW OF OBLIGATIONS
2.1 The law of contract
2.1.1 The "cohabitation contract"
Life partners (regardless of their sex) are permitted to enter into an express
contractual agreement that will regulate their respective obligations during the
subsistence of their union and the (patrimonial) consequences of the termination
thereof. Such agreements are sometimes referred to as "cohabitation contracts"
or "domestic partnership agreements." In order to avoid confusion between
these agreements and those provided for by the Domestic Partnerships Bill, 2008
the term "life partnership agreement" will be used for the purposes of this
Chapter.
2.1.1.1 Enforceability
As far as enforceability is concerned, life partnership agreements have
traditionally presented two problems, namely (i) that they are only enforceable
between the parties thereto, and (ii) that Courts could potentially refuse to
enforce such agreements on the grounds that they were immoral? While the first
contention is strictu sensu correct, it has been seen that an undertaking between
life partners may nevertheless entail consequences for persons not party
thereto." Regarding the second difficulty, it has been opined that a Court may
refuse to sanction or to enforce an agreement between two persons who cohabit
while being aware of the fact that they are not married, on the basis of the
general principle that the Courts refuse to sanction any agreement that
See SALRC2006: 117 -119; Sinclair and Heaton 1996: 279, 280; Schwellnus 1995: 155 -157.
See the opinion regarding the impact of the decision in Du Plessis v Road Accident Fund 2004 (1)
SA 359 (SCA) on outsiders in the discussion of Volks NO v Robinson 2005 (5) BCLR446 (CC) in
3.3.1.2 in Chapter 5.
363
"promotes lmmorality." However it is true, as Hahlo'' points out, that the mere
fact of cohabitation will not invalidate an agreement between the cohabitants that
is not related to their conjugal relationship. So, for example, where a married
man and his mistress lived together for over two decades while she was aware of
the fact that he was married, the Court-as far back as in 1953-held that a
legitimate contract of partnership had been entered into between them "as the
object of the partnership was to provide for their own livelihood and that of their
children."? In 1984 the finding that a universal partnership could be created
tacitly between persons who were not validly married in terms of South African
law provided further support for the argument that life partnership agreements
could no longer be regarded as contra bonos mores?
In contemporary South Africa it is submitted that there is no longer room for
arguing that a contractual undertaking between cohabitants can be null and void
per se.9 As will be seen in more detail in Chapter 7,10 public policy is "rooted in
our Constitution and the fundamental values it enshrines"!" giving rise to "an
objective normative value system."12 A contract will consequently be viewed as
contrary to public policy when the Constitution itself cannot sanction its
entorcernent." As far as life partners are concerned, since the coming into
operation of the Bill of Rights in 1994 and the subsequent decision of the
Constitutional Court in National Coalition for Gay and Lesbian Equality v Minister
Labuschagne 1985: 222. Also see Schwellnus 1995: 155.
6 1985: 37 and 1972: 324, 325.
See V (a/so known as Lj v De Wet, NO 1953 (1) SA 612 (Q) at 616 (G).
8 Thomas 1984: 456.
9 See Van der Merwe et a/ 2007: 11 "[t]he view that a contract is constituted by agreement
signifies the recognition of individual autonomy as a philosophical premise... Freedom of
contract [as a derivative of the notion of autonomy] means that an individual is free to decide
whether, with whom, and on what terms to contract ... The rules of the law of contract reflect
the attempts in the legal system to achieve a balance between relevant principles and policies so
as to satisfy prevailing perceptions of justice and fairness, as well as economic, commercial and
social expediency. For this reason the law of contract has a dynamic and changing nature."
10 The influence of public policy in the law of contract is discussed in detail in 7.2.2.2.2 in Part 3
(Chapter 7) below.
11 Per Cameron JA in Bris/ey v Drotsky 2002 (4) SA 1 (SCA) at par [91].
12 Per Griesel J in Minister of Education v Syfrets Trust Ltd 2006 (4) SA 205 (C) at par [24].
13 Bris/ey v Drotsky 2002 (4) SA 1 (SCA)at par [91].
364
of Home Affairs,14 it is trite that the Constitution guarantees the rights of equality
and dignity of gays and lesbians, with the result (inter alia) that such couples'
right to have their family life respected and protected has been confirmed." As
marriage was, until 2006, simply not an option for such couples, the only way for
them to regulate certain aspects of their relationship and family life in the
absence of alternative statutory regulation was to resort to contractual
protection." If such a same-sex couple were to do so by way of express
agreement it could certainly not be argued that this would offend the
constitutionally-founded and value-driven notion of public policy. In fact, bearing
the lack of alternative protection in mind, the contrary would surely be true."
This point is underscored by the fact that our Courts have, in the absence of any
such express agreement, on a number of occasions been prepared to infer the
existence of, and give effect to tacit reciprocal support obligations between
homosexual life partners." As far as heterosexual couples are concerned,
although the Constitutional Court in Volks NO v Robinson 19failed to infer the
existence of a reciprocal duty of support" the Court expressed no objection to
the possibility of cohabitants regulating certain aspects of their relationship by
agreement.
The argument that cohabitation contracts are contrary to public policy per se is
therefore no longer valid. In short, Singh21 is correct when she states that "[a]n
agreement between non-marital partners is unenforceable only to the extent that
it explicitly rests upon the immoral and illicit consideration of meretricious sexual
services.,,22
14 2000 (2) SA 1 (CC).
15 At par [53] and [54].
16 Bala 2000: 190.
17 See Sinclair and Heaton 1996: 280, 281.
18 See for example Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) at par
[25]; Du Plessis v Raad Accident Fund 2004 (1) SA 359 (SCA) at par [11]- [16].
19 2005 (5) BCLR446 (CC) at par [55]- [58].
20 This case is discussed in detail in 3.3 in Chapter 5.
21 1996: 323.
22 Emphasis in the original. This view is supported by the SALRC(2006: 119) and Schwellnus 1995:
156, 157.
365
2.1.1.2 Contents of the agreement
It is self-evident that the contents and nature of a life partnership agreement will
depend on the needs of the parties. In certain instances a universal partnership
may be apposite, while in others it may be more advisable for the parties not to
enter into such a partnership for, as Schwellnus/" points out, doing so may have
"far-reaching consequences.v" Nevertheless in accordance with the normal
principles governing the law of contract, the principle remains that the parties
may include any provision in the agreement that is not illegal, contra bonos
mores or contrary to public policy.25
More specifically, it is noteworthy that the literature on this subject appears to
focus on the need for regulating the financial aspects during the existence of the
relationship" and on stipulations regarding property ownership and division at
the termination thereofY While this aspect is undoubtedly of cardinal importance
(even more so, it is submitted, in view of the so-called "choice argument" which
can now strictu sensu be applied to both same-sex and heterosexual life partners
23 2008: N22.
24 The universal partnership is discussed in 2.1.2 below. Thomas (1984: 457 - 459) favours the
partnership construction.
25 Hutchings and Delport 1992: 125 mention that the life partners "may state their collective and
individual goals in the relationship" and that a provision stating the "duration of the relationship,
for example, for a life-time, fixed period or until a specified event" may be included. With
respect, it is difficult to see the need for such provisions.
26 Schwellnus 2008: N22, Thomas 1984: 457 - 459 and Singh 1996: 321 encourage the inclusion of
provisions relating to the apportionment of household expenses, and the first-mentioned author
mentions that the agreement should be limited to these aspects unless the parties wish to make
specific provision for one to support the other in case of unemployment or where young children
need to be reared. It is submitted that this opinion unfortunately loses sight, first, of the
emphasis placed on a reciprocal obligation of support in recent case law and, second, of the
crucial importance thereof as the key element in order to enforce need-based claims such as
maintenance-see Chapter 5 above.
27 See Singh 1996: 32; Hutchings and Delport 1992: 125 and Schwellnus 2008: N22. The parties are
advised to list all property that is owned separately at the inception of the relationship as well as
that acquired during its existence; to stipulate a procedure for the division of joint property; to
refer to the proportion of co-ownership of immovable property; and to regulate the procedure
for reimbursement of the life partner who has paid for improvements to immovable property
owner by the other partner. It is important to note that immovable property that is co-owned
must be reflected as such in the title deed.
366
in consequence of which the piecemeal extensions previously granted to the
former may fall away if the argument were ever to receive appropriate
sanction)." it is submitted that parties to a life partnership agreement should also
include a specific provision in a written, witnessed and attested aqreernenr" in
terms of which they undertake mutual support obligations during the existence of
the relationship." This will negate the need for a Court to infer such a duty after
the death of one of the parties and will assist in establishing the causal link
required for claims inter alia relating to maintenance from the deceased estate,
intestate succession and wrongful death. What is more, it is submitted that the
existence of such a duty will lend credence to claims not yet recognised or
permitted by the Courts. For instance, it is submitted that a person in the position
of R in the case of Volks NO v Robinson 31 would be in a far stronger position
successfully to claim for maintenance from the deceased estate of his or her life
partner if such an agreement could be adduced as evidence for, as concluded in
Chapter 5,32 the "contextualised choice model" dictates that this obligation is a
sine qua non for all claims based on need.33
The parties can of course in their agreement make express proviston for
maintenance after the termination of the relationship, which Schwellnus" opines
should be confined to a specific period and should be rehabilitative in nature. In
28 See 5 in Chapter 3 and Chapter 5 in general.
29 Singh 1996: 312; Schwellnus 2008: N22 and Hutchings and Delport 1992: 125 recommend a
formal written, signed and witnessed agreement for evidentiary reasons. The example provided
by Thomas 1984: 457 et seq also requires the agreement to be signed.
30 It is interesting that none of the authors consulted (i.e. Schwellnus 2008: N22; Thomas 1984: 455
et sea; Hutchings and Delport 1992: 121 et seq and Singh 1996: 317 et seq) express the need for
such a provision.
31 2005 (5) BCLR446 (CC). In this case R (the surviving partner to a heterosexual life partnership)
unsuccessfully asserted that she was entitled to qualify as a "spouse" for the purposes of the
Maintenance of Surviving Spouses Act 27 of 1990. This case is discussed in detail in 3.3 in
Chapter 5 above.
32 See 3.3.2.2; 3.4.1.2; 3.4.1.3 and 3.6 in Chapter 5.
33 It is also important to note that the Domestic Partnerships Bill, 2008 does not oblige the parties
to an unregistered domestic partnership to support one another (see clause 27). It is therefore
submitted that the inclusion of such a provision in a life partnership agreement in the case of
unregistered domestic partners is advisable in order to obviate any uncertainty in this regard.
The Bill is discussed in Part 3 (Chapter 7).
34 2008: N22.
367
this regard it is once again submitted that the inclusion of a specific provision in
terms of which mutual support obligations are undertaken during the course of
the relationship will facilitate the enforcement of a claim for maintenance after its
termination.
A provision that regulates dispute resolution between the partners may be
included."
2.1.2 The application of the universal partnership in the context of family law
The concept of a universal partnership has from time to time been employed in
South African law in order to ameliorate the adverse consequences that ensued
due to the erstwhile complete lack of recognition accorded to relationships other
than civil rnarriaqe."
In order for a partnership to exist, Stratford AJA confirmed in Rhodesia Railways
and Others v Commissioner of Taxes 37 that South African law requires
compliance with four essential requirements, namely:
First, that each of the partners brings something into the partnership, or binds himself
to bring something into it, whether it be money, or his labour or skill. The second
essential is that the business should be carried on for the joint benefit of both parties.
The third is that the object should be to make profit. Finally, the contract between the
parties should be a legitimate contract.
The form of partnership that is most often encountered in a family law context is
the so-called societas universorum bonorum, or partnership in terms of which the
partners agree to share all current and future profits acquired individually or
35
Hutchings and Delport 1992: 125.
36
See for example Volks NO v Robinson 2005 (5) BCLR446 (CC) at par (125); V (also known as LJ v
De Wet, NO 1953 (1) SA 612 (0); Ally v Dinath 1984 (2) SA 451 (T).
37
1925 AD 438 at 465.
368
collectively from commercial undertakings or otherwise." When applied in this
setting, such a partnership effectively implies that community of property is
created between the (unmarried) partners."
The current legal position is that a societas universorum bonorum can be created
expressly or tacitly." In the latter case the existence of the partnership can be
inferred if the facts indicate that it is more probable than not that the agreement
was in fact concluded." something which the Appellate Division (now the
Supreme Court of Appeal) has held would be difficult to prove within the context
of a business built up between a man and his wife who were married out of
community of property as services greatly exceeding those normally required of a
wife in that position would be required.Y The motive behind such a partnership
does not have to be pecuniary profit in the strict sense, as it has been held that
"the achievement of another material gain, such as a joint exercise for the
purpose of saving costs" is sufficient.f It is also accepted that a tacit universal
partnership may be created in the event of a putative marriage where no
38 See Annabhay v Ram/all and Others 1960 (3) SA 802 (N): 805 (A); Sepheri v Scan/an 2008 (1) SA
322 (C) at 338 (A) - (B); SALRC2006: 111; Henning 1997: 59, 60. Another form of partnership is
the universorum quae ex quaestu veniunt which Pothier described as one in which "[tlhe parties
... contract a partnership of all that they may acquire during its continuance, from every kind of
commerce" (as quoted by Searle J in /saacs vlsaacs 1949 (1) SA 952 (C) at 955, emphasis added).
The emphasised section indicates why this form of partnership is not generally utilised in a family
law context (compare V (a/so known as L) v De Wet, NO 1953 (1) SA 612 (0) as discussed in note
49 below).
39 Sepheri v Scan/an 2008 (1) SA 322 (C) at 338 (C).
40 Ally v Dinath 1984 (2) SA 451 (T) at 453 (G) - 455 (A). The only proviso is that "a clear contract is
required"-see 454 (H) and Labuschagne 1985: 221, 222. Henning (1997: 61 - 63) opines that
much of the uncertainty surrounding this possibility could have been avoided if proper
cognisance had been taken of the opinion expressed by the jurist Hector Felicius (as adapted by
Hugo Boxelius in 1666) in the work entitled Tractatus desideratissimus de Communione seu
Societate that such a partnership can be created tacitly by an "act of partnership" coupled with
three requirements, namely "cohabitation, sharing of profits and freedom from accounting to
one another." In the alternative, these writers opined that the existence of such a partnership
could be construed by considering the opposite of dissociative conduct. Felicius's work (albeit
not on this specific point) has received judicial recognition-see Van Staden v Venter 1992 (1) SA
552 (A) at 560 (H) - 561 (C).
41 Charles Ve/kes Mai/ Order 1973 (Pty) Ltd v Commissioner for In/and Revenue 1987 (3) SA 345 (A)
at 357 (H); MDh/mann v MDh/mann 1984 (3) SA 102 (A) at 124 (C); Sepheri v Scan/an 2008 (1) SA
322 (C) at 338 (E) - (F).
42 MDh/mann v MDh/mann 1984 (3) SA 102 (A) at 124 (D); SALRC2006: 116.
43 Ally v Dinath 1984 (2) SA451 (T) at 455 (A) - (C).
369
antenuptial contract excluding community of property has been entered into and
where (i) both parties were of the bona fide belief that the marriage was valid or
(ii) only one was bona fide and it is to that party's advantage to do SO.44
The common law dictates that when a partnership comes to an end the assets
are divided between the partners in accordance with any express agreement to
this effect. If there is no agreement, they share in accordance with their
respective contributions unless their contributions were equal or unless it is
impossible to determine whether one has contributed more than the other, in
which case the partnership assets are divided equally."
Returning to a family law context, case law-both recent and dated-provides no
doubt as to the application of the universal partnership in the following instances
within the context of this branch of the law:
Prior to the legislative provision of a judicial power of redistribution;" the
universal partnership was at times employed in order to effect a
redistribution of assets to which both spouses had contributed when
marriages that were concluded with complete separation of property were
terminated through divorce proceedinqs;"
In the case of putative marriages (as mentioned above );48 and
44
See Ex parte L (Also known as Aj 1947 (3) SA 50 (C) at 59 et seq; M v M 1962 (2) SA 114 (GW) at
117 (G) - (H); Mograbi v Mograbi 1921 AD 274 at 275; Labuschagne 1985: 221; Erasmus et al
1983: 32.
45
Isaacs visaacs 1949 (1) SA 952 (C) at 961; Fink v Fink 1945 WLD 226 at 241; V (also known as Lj v
De Wet, NO 1953 (1) SA 612 (0) at 615 (F) - (H); SALRC2006: 112.
46
Section 7(3) - (6) was inserted into the Divorce Act 70 of 1979 when the Matrimonial Property
Act 88 of 1984 came into operation on 1 November 1984.
47
SALRC2006: 112; Sinclair and Heaton 1996: 279; Fink v Fink 1945 WLD 226.
48
Mograbi v Mograbi 1921 AD 274; M v M 1962 (2) SA 114 (GW); Exparte L (also known as Aj 1947
(3) SA 50 (C). A recent and interesting addition to the body of case law on this topic is the case of
Zulu v Zulu and Others 2008 (4) SA 12 (D). This case is discussed in detail in 2.4.2 below.
370
Within the context of life partnerships in the wider sense of the word (such
as, for example purely religious rnarriaqes)."
De Bruin and Snyrnarr" suggest, in the light of the recognition of tacitly-created
societas universorum bonora coupled with the flexible approach regarding the
distribution of partnership assets adopted by the Appellate Division in Robson v
Tneron" that such partnerships are a realistic and effective solution to ensure
an equitable distribution of assets following not only the termination of
"marriages" that are not recognised according to South African law, but also
extra-marital cohabitation arrangements (or, as seen in Chapter 4, life
partnerships in the narrow sense).
For the purposes of this study, it is the application of the universal partnership in
the latter context that is of particular relevance. In this regard a perusal of recent
case law reveals compelling authority for the applicability of the universal
partnership in principle but unfortunately not in practice.f In other words, while
post-1994 case law has removed all doubt as to the fact that such a partnership
may be applied within the context of a life partnership in the narrow sense, the
Courts have not been prepared to find such a partnership to exist on the facts.
49
Isaaes v Isaaes 1949 (1) SA 952 (C); Ally v Dinath 1984 (2) SA 451 (T). This situation could also
occur in the case of a cohabitation arrangement where the parties were legally prohibited from
marrying one another and had never participated in a "marriage ceremony" of any sort (also a
form of a life partnership in the wide sense for the purposes of this study-see Chapter 4). For
example in V (also known as Lj v De Wet, NO 1953 (1) SA 612 (0) the parties cohabited for 21
years until the male partner (L) passed away. The surviving cohabitant had at all times during the
existence of the relationship been aware of the fact that L was lawfully married to another
woman. The parties had both been involved in a painting and decorating commercial venture,
and on L's death the survivor alleged that she was entitled to a half share of his estate on the
basis that a universal partnership (in this case, the commercial form or universorum quae ex
quaestu veniunt) had existed between them (at 614 (H)). Although the cohabitants had intended
to marry one another in community of property once L's first marriage had been terminated, De
Beer JP held that this fact alone did not imply that no partnership could be created in the interim
(at 615 (F)). As all the requirements for a partnership had been complied with, the executor of
L's estate was ordered to pay one half of the assets in the estate to L (at 616 (A) - 617 (B)).
50 1998: 368 et seq.
51
1978 (1) SA 841 (A) at 856 (F) - (G).
52 As discussed in the following paragraph.
371
2.1.2.1 Hypothetical recognition
Proof of the recognition in principle of the universal partnership by the Courts is
provided in two cases, namely Gory v Kolver NO 53 and Volks NO v Robinson.54
The Gory case (which was discussed in Chapter 5)55 dealt with a same-sex life
partnership in which the surviving partner alleged that the Intestate Succession
Act 81 of 1987 was unconstitutional to the extent that it did not permit same-sex
life partners who had undertaken mutual support obligations to inherit from their
deceased partners' intestate estates. In holding that the Act discriminated
against such persons, the Trial Court (Hartzenberg J) stated that the
respondents' very reason for alleging that the Act was not unconstitutional
(namely that "the applicant and the deceased could have made wills in favour of
each other and could have entered into a written universal partnership
agreemenf') in fact "graphically illustrated" why the Act did in fact discrirninate.P"
Similarly, in Mokgoro and O'Regan JJ's dissenting minority judgment in Volks NO
v Robinsori" (a case in which a surviving heterosexual life partner
unsuccessfully contested the constitutionality of the Maintenance of Surviving
Spouses Act 27 of 1990) the learned Judges stated that a contract "in which the
parties agree to put in common all their property, both that which they presently
own and that which they are to acquire in the future" could assist life partners,
and, moreover, that such a contract need not be entered into expressly.P''
Therefore, while the Trial Court's remark in Gory may intimate that the
agreement must be in writing, the Constitutional Court's remarks in Volks dispel
this impression.
53 2006 (5) SA 145 (T).
54
2005 (5) BCLR446 (CC).
55
See 3.4.1 in Chapter 5.
56
Par [22] (emphasis added).
57
2005 (5) BCLR446 (CC), discussed in detail in 3.3 in Chapter 5.
58
Par [125].
372
2.1.2.2 Lack of practical recognition: Problems posed by the universal
partnership
Theoretical recognition aside, academic authority mentions and apposite case
law illustrates the biggest practical problem that is occasioned by the universal
partnership, namely proof of its existence.59 For example, in Sepheri v Scenteti"
the plaintiff and the defendant had cohabited during the period for which they
were engaged to be married, had supported one another and had pooled their
resources. While they were betrothed the defendant had purchased property
which was registered in his name only, despite apparently originally intending to
register both of them as owners. When confronted by the plaintiff as to why he
had done so, he apparently reassured her by telling her that ownership of the
property was irrelevant as it was "ours.,,61 Once the relationship had terminated,
the plaintiff successfully instituted an action for breach of promise against the
defendant; a claim that was adjudicated on the assumption that the parties would
have been married with community of property.62 As far as the property itself
was concerned, the plaintiff attempted to defend the defendant's counterclaim for
eviction by alleging that she was entitled to continue to reside there on the basis
that a universal partnership had come into existence between herself and the
defendant. In response to this contention, the Court appeared to find that
"genuine consensus" about such a partnership was required; something which
the defendant's placatory remarks to the plaintiff or the loose phraseology
employed in his testirnony'" could not be construed as having established.
Consequently, it appears that the defendant's persistent refusal to transfer the
property to the plaintiff served to indicate the absence of true consensus."
59 See for example Volks NO v Robinson 2005 (5) BCLR446 (CC) at par (125); Sinclair and Heaton
1996: 279; SALRC2006: 116, 117.
60 2008 (1) SA 322 (C). The facts of this case appear in Chapter 5.
61 At 325 (B) - (F).
62 At 336 (D) - (F).
63 See the examples mentioned by Davis Jat 339 (B) - (C).
64 At 339 (A) - (J). It is interesting to note that the Court did not express itself on the general
principles pertaining to the regulation of proprietary interests between life partners in South
African law.
373
The fact that the parties in the Sepheri case were betrothed and that the plaintiff
was compensated for breach of promise serves to mask the serious
consequences that may ensue for life partners in the absence of contractual
protection. For the purposes of illustration it is worth pausing for a moment in
order to speculate on the potential outcome of this case if a breach of promise to
marry had never occurred (for example if the parties had mutually agreed to
terminate their engagement), and the plaintiff had instead based her claim to a
half share of the property squarely on the existence of a universal partnership; a
situation which would have resembled the typical life partnership scenario that is
currently encountered in South Africa. Under these circumstances, it must be
remembered that the fact that the plaintiff was aware of the intention to be
married in community of property and that such community would only
commence as from the date of marriage would not necessarily imply that no
universal partnership was created in the interim." Nevertheless, it is submitted
that Davis j was correct in holding that the evidence did not prove that a
universal partnership existed between the parties. Consequently, the flexible
approach prescribed for the division of partnership assets in Robson v Theron 66
and advocated by De Bruyn and Snyman'" would come to nothing as no
partnership existed in the first place. The prevailing legal position would thus
imply that despite the defendant's continuous reassurances to the plaintiff and
references in Court to the effect that the property formed part of "our assets",68
the fact that the property was paid for by him and registered in his name only
coupled with his refusal to transfer a half share to her would have left the plaintiff
without any proprietary rights to the property whatsoever. Consequently, the
Sepheri case confirms the fears expressed by the South African Law Reform
65
See V (also known as LJv De Wet NO 1953 (1) SA 612 (0) at 615. Although the partnership in this
case was a societas universorum quae ex quaestu veniunt as opposed to a societas universorum
bonorum, it is submitted that this principle applies equally to the latter type of partnership.
66
1978 (1) SA 841 (A) at 856 (F) - (G).
67
1998: 368 et seq.
68 At 339 (B) - (C).
374
Cornrnisslon'" and olhers"? as far as proof of existence of a universal partnership
is concerned.
A second fear expressed by the Commission is that a universal partnership does
not provide a juristic basis for reciprocal maintenance between the former
partners." It is submitted that this issue does not present a problem of any great
significance. To illustrate: As far as maintenance is concerned there is an
abundance of case law that indicates that our Courts have in the post-1994
democratic constitutional dispensation increasingly held the existence of a duty
to maintain to be a question of fact.72 Furthermore, the existence of such a
factual contractual duty implies that the Maintenance Act 73 immediately becomes
applicable to such a relationship as section 2 of the Act provides that "[t]he
provisions of this Act shall apply in respect of the legal duty of any person to
maintain any other person irrespective of the nature of the relationship between
those persons giving rise to that duty.,,74 A contractual duty to maintain is
therefore-as was pointed out in Chapter S75_no less robust than an ex lege
duty. Furthermore, in the same Chapter" the distinction between a claim based
on need and a claim of a purely proprietary nature was pointed out, and it was
shown that in order to succeed with the former type of claim, it would be
necessary to prove that a reciprocal duty of support existed between the
unmarried life partners. A claim for maintenance is clearly a claim based on
need, while a claim to share in partnership assets is undoubtedly a claim of a
proprietary nature. Consequently, all that is required for a maintenance
69 2006: 116, 117.
70
See for example Volks NO v Robinson 2005 (5) BCLR446 (CC) at par [125]; Sinclair and Heaton
1996: 279.
71 SALRC2006: 117.
72
See for example Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1
(CC) at par [25] and Du Plessis v Rood Accident Fund 2004 (1) SA 359 (SCA) at par [11]- [16] with
respect to life partnerships in the narrow sense and Khan v Khan 2005 (2) SA 272 (T) at par [10]
with reference to life partnerships in the wide sense.
73 99 of 1998.
74
Cronjé and Heaton 2004: 58.
75 See 3.3.1.2 in Chapter 5.
76 3.3.2.2.
375
obligation to arise between life partners is proof of the fact that they have
undertaken mutual support obligations. In fact, as was explained in Chapter 5,
the existence of such support obligations between the life partners would serve
to create the requisite proximal nexus between the person instituting the need-
based claim and the person or estate against whom or which the claim is
pursued. This line of reasoning therefore proves why the Commission's fears are
unfounded. As far as need-based claims are concerned the existence of a
universal partnership is therefore irrelevant as the existence of such a
partnership would at most be used in order to facilitate the patrimonial
consequences of the termination thereof.
The Sepheri case can again be used to illustrate the effects of the above
discussion. To begin with, although this aspect of the case was never
categorically addressed by the Court, it is clear that a reciprocal duty of support
existed between the plaintiff and the defendant. This much becomes clear when
it is considered that the parties initially "pooled their resources";" that they "paid
for expenses more or less on a50150 basis;,,78and that the defendant later
maintained her while he was abroau" while it appears as if the plaintiff
reciprocated by assuming responsibility for domestic tasks." (In fact, Davis j
described the fact that the parties provided each other with financial assistance
while they were engaged as being "natural in such a relationship.j" If, for
example, Ms Sepheri required maintenance during the existence of the life
partnership, she would-on the strength of the contractual duty of support that
existed between them-be able to approach the Maintenance Court for a
maintenance order in terms of the Maintenance Act 99 of 1998.82 If the life
partnership was terminated while both she and Mr Scanlan were alive, it
77 At 324 (8).
78 At 324 (C).
79
At 325 (J) and 326 (A).
80
At 326 (E).
81
At 339 (I).
82
See section 2(1) of the Act and Cronjé and Heaton 2004: 229 but compare Schwellnus 2008: N9.
Both Schater (2008(b)) and the SALRC(2006: 148 - 165) are silent on this issue.
376
appears-by way of analogous principles in matrimonial law-as if the
Maintenance Act would without more be of no assistance, as the reciprocal duty
of support that existed between them would be terminated once the relationship
came to an end.83 Although it is submitted that there is room for arguing that a
contractual duty of support may survive the fact that life partners no longer share
a joint household." this aspect has yet to be subjected to judicial scrutiny.
However, there appears to be no doubt that if the parties had by way of a
cohabitation agreement agreed to extend their maintenance obligations beyond
the termination of their relationship, the Maintenance Act could be used to
83 The reciprocal duty of support created by marriage (or civil partnership) generally terminates
when the marriage is dissolved unless specific legislation extends it. At this stage only section 7
of the Divorce Act 70 of 1979 and section 2 of the Maintenance of Surviving Spouses Act 27 of
1990 do so. Furthermore, the Maintenance Act only applies to the extent that a "legal duty"
compels one person to maintain another, with the result that the contractually-created "legal
duty" falls away once the reciprocal duty of support is terminated. Specific legislation is
therefore necessary in order to extend the duties of support that exist between life partners
beyond the termination of their relationships. Failing such legislation, it appears as if an ex life-
partner will only be able to claim post-separation maintenance if a contractual undertaking to
this effect exists. There may however be some room for arguing that an obligation to maintain
may survive the fact that the life partners no longer share a joint household-see the note that
follows.
84 The argument for such a possibility is premised on the following points: (i) It is generally
accepted that a marriage does not ipso facto create a joint household, but that the existence of
such a joint household is a question of fact (per Van Zyl Jin Excell v Douglas 1924 CPD472 at 476,
477. Also see Sinclair and Heaton 1996: 444; Hahlo 1985: 203, but compare Oelofse v Grundling
1952 (1) SA 338 (C) at 341 (A) where Hall J, interestingly enough citing the Excell case as support,
states that "and it has been laid down, generally, that a wife who is married in community of
property is entitled to enter into contracts for the supply of necessaries without the assistance of
her husband, and that this power flows from the fact that a common household is established
through marriage"). (ii) The ability to establish a common household is not confined to married
spouses, as the ability of same-sex life partners to enter into and sustain a common household
and to establish and enjoy a family life "which is not distinguishable in any significant respect
from that of heterosexual spouses" has been confirmed by the Constitutional Court (see par [53)
(v) read with (viii) of Ackermann J's unanimous judgment in National Coalition for Gay and
Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)). (iii) It has been emphasised
throughout this study that a contractual duty of support is as robust and capable of enforcement
as the ex lege duty of support that flows from the fact of marriage-see 3.3.1.2 in Chapter 5
above. (iv) According to Sinclair and Heaton (1996: 444) "[t]he duty of support [in a marriage)
does not necessarily come to an end if the joint household breaks up. On the principle that no
one can escape a legal obligation by his or her own wrongdoing, it continues if the separation
was caused by the person liable for support-for example if one spouse deserts the other or
drives him or her away by matrimonial misconduct. The same, it would seem, holds true where
the spouses separate by mutual consent without having entered into an agreement relating to
maintenance, and one of them is not able to support himself or herself" (footnotes omitted). If
statements (i). (ii) and (iii) are applied to statement (lv), it may be argued that the same legal
principles will apply to life partners.
377
enforce such a contractual undertakinq" This option is consequently the safest
route to take.
On the other hand, if the life partnership had been terminated by the death of (for
example) the defendant, it is submitted (on the basis of the "contextualised
choice model" adopted in Chapter 5 and explained above) that the survivor
should be permitted to institute any need-based claim against the estate of the
deceased. So, for example, the survivor should be permitted to pursue a claim
for maintenance against the deceased estate, and, where appropriate, to inherit
intestate and to institute a claim for loss of support if the defendant was
wrongfully and culpably killed by an outsider.
The patrimonial consequences of the termination of the life partnership in such a
case deserve special consideration. In the discussion above the hypothetical
position was considered where the engagement was terminated by mutual
consent, leading to a claim for the distribution of assets on the basis of a
universal partnership. The position if the life partnership had been dissolved by
the death of one of the partners would however be less straightforward. In such
an instance, a universal partnership comes to an end by operation of law.86
However, as seen in Chapter 587 above, when dealing with the patrimonial
consequences of the termination of a life partnership, the fact that the life
partners elected not to marry one another (the so-called "choice argument")
could play a role. In these circumstances, it was tentatively concluded that
matrimonial (property) law would have no role to play but that the law of
obligations instead would resolve the dispute as to what was to happen to the
assets of the deceased person. Consequently, a universal partnership could be
utilised provided that the essentialia of such a partnership could be proved.
Once proven, the flexible approach towards the distribution of partnership assets
85
Cronjé and Heaton 2004: 229.
86
Botha v Deetlefs and Another 2008 (3) SA419 (N) at par (14).
87
See 3.3.2.2 in Chapter 5.
378
adopted in Robson V Theron 88 could potentially assist the survivor in obtaining a
favourable settlement.
The argument for avoiding matrimonial law in a life partnership setting is
predicated on the fact that the parties have elected not to marry, and have
therefore specifically chosen not to apply matrimonial property law in order to
regulate the division of their assets." However, adapting the basic facts in
Sepheri provides interesting food for thought: What would the position be where
a life partnership is terminated by the death of one of the partners who are
engaged to be married to one another and, moreover, have already selected the
matrimonial property system that will apply to their prospective marriage? Would
the fact that the parties are engaged and have thus elected to marry in future
imply that the "choice argument" is no longer relevant to their life partnership with
the result that the principles of matrimonial property law could, on application to
Court, conceivably be extended to such a life partnership? It is submitted that
these questions should be answered in the negative. Although there is no
precise consensus regarding the nature of an enqaqernent." it is generally
accepted that an agreement to marry is a contract sui qeneris." As an outflow
hereof, a contract of engagement is terminated when one of the parties dies.92
However, the law of obligations may have some role to play in determining the
fate of the assets involved. If certain assets were donated by the deceased to
the survivor, these assets are, unless the contrary was clearly intended, returned
to the donor's estate; it being assumed ex lege that the gifts were conditional
upon the marriage.93 Our Courts have also held that the proceeds of an
insurance policy are not payable to the deceased estate as no donation had
occurred between the deceased and the survivor but that the proceeds instead
88 1978 (1) SA 841 (A) at 856 (F) - (G).
89 See Sachs J's quotes from par [203] and [204] of Nova Scotia (Attorney General) v Walsh [2002] 4
SCR325 in par [160] of Volks NO v Robinson 2005 (5) BCLR446 (CC).
90 See Joubert 2008: A8.
91 Triegaardt v Van der Vyver 1910 EDL 44 at 45; Hahlo 1985: 46; Cronjé and Heaton 2004: 7 (note
1); Sinclair and Heaton 1996: 315; Van Warmelo 1954: 110.
92 Joubert 2008: A8; Sinclair and Heaton 1996: 319; Hahlo 1985: 50.
93 Van Duyn v Visser 1963 (1) SA 445 (0) at 450 (D) - (E); Hahlo 1967: 61.
379
formed part of a contract for the benefit of a third party (a so-called stipulatio
alteri) which became irrevocable once the survivor accepted the benefit on the
death of the sttoutens'"
In the light hereof it appears as if the contract of engagement should be seen as
exactly that-a sui generis juristic act which is terminated by the death of one of
the parties so that all contractual obligations between the couple come to an end
unless the specific rules of the law of obligations justify their extension beyond
death. Viewed in this way, the fact that a couple were engaged to be married
and intended (for example) to marry in community of property implies nothing
more than that the parties had reached consensus regarding the fact that once
married each of them would ex lege become a "tied" eo-owner of an undivided
half share in the joint estate." Therefore, if the engagement is terminated by the
death of one of the parties this would not be sufficient to refute the "choice
argument" and to conclude that the principles of matrimonial property law could
be extended to such a life partnership. Consequently, the current legal position
dictates that, unless the survivor is provided for by the law of succession, the
only way for him or her to share in the estate of the deceased would be in the
event of the law of obligations providing such a claim (for example in the case of
a donation, universal partnership or contract for the benefit of a third person).
This discussion should make it abundantly clear that legislative intervention
predicated on the domestic partnership rubric must regulate the patrimonial
94
Bates, NO v Afrikaanse Lewensversekeringsmaatskappy Bpk en 'n Ander 1967 (3) SA 19 (W). In
this case Rabie J held that an insurance policy which was taken out on the life of the deceased
with his fiancée as beneficiary constituted an agreement between the deceased (as stipulans)
and the insurance company (as pramittens) in terms of which the latter was required, upon the
former's death, to make an offer to the third party (the fiancée). Once accepted, the agreement
existed between the pramittens and the third party (at 23 (E) - (H)). The learned Judge
expressed the opinion that a man in the position of the stipulans who did not want his fiancée to
benefit if the marriage could not take place could facilitate this by either providing for such an
eventuality in the insurance policy or by contracting with his fiancée (at 23(H) - 24(A)). Although
criticised by Hahlo 1967: 60 - 62, the finding in this case is supported by Van Warmelo 1969: 185
- 187 and the authors cited by the latter (at 187). It has also found support in case law-see for
example Hees NO v Soutbern Life Association Ltd 2000 (1) SA 943 (W) at 951 (J) - 952 (H).
95
Exparte Menzies et Uxor 1993 (3) SA 799 (C) at 811 (F); Hahlo 1985: 158, 159.
380
consequences of the termination of life partnerships in a comprehensive fashion.
Such legislation would provide for a range of factors for the Courts to consider in
order to guarantee an equitable distribution of the proprietary interests involved.
As far as non-formalised (unregistered) life partnerships are concerned, the fact
that the parties were engaged to be married to one another could constitute one
of these factors."
As an aside, it is submitted that the current state of affairs may provide some
justification for arguing that South African family law should continue to recognise
claims based on breach of promise to marry. The facts of Sepheri v Scan/an9?
can, once again, be used to explain this contention. In this case it must be
remembered that the Court awarded Ms Sepheri damages for breach of promise
on the basis of the fact that she and the defendant would eventually have
married one another with community of property. In the opinion of the Court this
entitled her (before deductions on the basis of her prospects of remarriage) to
half of: (i) the value of the property, (ii) the motor vehicles, (iii) the household
furniture and effects, (iv) the defendant's cash balance and (v) the value of the
defendant's shares and stocks." As far as the fixed property was concerned, the
Court was not prepared to recognise that a universal partnership existed
between herself and the defendant and consequently was not prepared to
recognise that the property formed part thereof.99
The new constitutional dispensation in South Africa has led to calls from both the
bench and from academic commentators for the outright abotition.l'" or, in the
alternative, the reconsideration 101 of claims based on breach of promise. As the
law stands, however, this has not yet happened. However, if, hypothetically
96 Clause 32 of the Domestic Partnerships Bill, 2008 (titled "Property division") permits "any other
relevant factors" to be taken into account by a Court considering such an application.
97 2008 (1) SA 332 (C).
98 At 336 (E) - 337 (E).
99 At 337 (J) - 339 (J).
100 See for example Lloyd v Mitchell [2004] 2 All SA 542 (C) at 547, 548; Sinclair and Heaton 1996:
314 (note 8).
101 Sepheri v Scan/an 2008 (1) SA 322 (C) at 330 (I) - 331 (A).
381
speaking, South African law were to abolish all claims based on an agreement to
marry, a life partner in the position of Ms Sepheri would, in the absence of
domestic partnership legislation and bearing in mind that she could not prove that
a universal partnership had existed between herself and the defendant and that
the Courts have no discretion to redistribute life partnership assets, have been
left with no remedy whatsoever.
While it is conceded that legislative intervention into the law of life partnerships
would certainly strengthen the argument for a re-evaluation of the permissibility
or constitutionality of attaching legal consequences to the wrongful termination of
engagement agreements, it is submitted that the prevailing legal position justifies
the continued recognition of such claims so that persons in the position of Ms
Sepheri are provided with at least some means of protection.
2.1.2.3 Conclusion
This analysis shows that, as opposed to need-based claims, it is within the
context of patrimonial claims, rather, that the efficacy of the universal partnership
needs to be evaluated, and evidentiary problems aside, the universal partnership
undoubtedly has a role to play. However, in the absence of such a partnership, it
becomes clear that unmarried partners currently have little more than alternative
remedies provided by the law of obligations at their disposal.102 Nevertheless, it
is submitted that the relatively high level of sophistication required in order for the
universal partnership to provide an effective solution dictates that as such it is
awkward to apply to the South African family law context.l'" and that legislative
intervention that is tailor-made for family law would undoubtedly be a better
solution.
102
See 2.2 that follows.
103
SALRC2006: 121.
382
2.2 Other protection
Over and above the law of contract, other branches of the law may provide some
form of protection to life partners. In the discussion that follows the efficacy of
these alternative methods will be assessed.
2.2.1 Unjustified enrichment
As part of the law of obligations, unjustified enrichment presents itself as "an
obligation arising whenever one person's estate has been increased at the
expense of another person's estate and sufficient legal ground (causa) for the
retention of such increase is lacking.,,104
At the termination of a life partnership, the law of unjustified enrichment could-at
least in theory 105-provide relief to an impoverished party who successfully
claims (i) a contribution for (non-sexual!) services rendered to the economically-
active partner, (ii) a claim for "tangible improvements" made to the property of the
other life partner.l'" or (iii) compensation for any other "genuine financial
contribution" to the estate of the other, where such contribution, improvements or
services were made or rendered sine ceuse.ï" According to Hutchings and
Delport108 an example of such a financial contribution occurs where one life
partner (the non-owner) contributed towards purchasing property that was
registered only in the name of the other.l'"
As far as "novel" claims based on unjustified enrichment are concerned, the
judgment of the Appellate Division (now the Supreme Court of Appeal) in Nortje v
104
Eiseien and Pienaar 1999: 3.
105
There is as yet no explicit authority where these claims have been recognised within the context
of life partnerships.
106
Volks NO v Robinson 2005 (5) BCLR446 (CC) at par [126).
107 Hutchings and Delport 1992: 123.
108 1992: 123.
109
Also see SALRC2006: 122, 123.
383
POO/110 was for many years thought effectively to have closed the door on the
recognition of enrichment claims which could not be accommodated along the
lines of the recognised conoictiones.ï" As pointed out by the same Court almost
three decades later,112 the failure of the Court to broaden the scope of
enrichment liability by way of the recognition and delimitation of a general
enrichment action may have been perceived as reluctance to assume a law-
making role and in doing so to deviate from its judicial responsibility. This
reluctance could not mean, the Court stated, that other Courts would in future be
precluded from imposing liability for unjustified enrichment where doing so was
necessary or desirable simply because such liability had not been imposed in
identical or even similar circumstances in the past.113
Although this statement of the law sparked some relaxation of the strictures
surrounding enrichment clairns.!" our law has yet to recognise either a general
enrichment action (a call for such recognition was once again made in a case
reported as recently as in 2008)115or any specific enrichment liability within the
context of life partners. For this reason, it must be concluded that reliance on
unjustified enrichment as an effective remedy for disputes involving life partners
is speculative at best.116
110
1966 (3) SA 96 (A).
111
Visser 2002: 261, 262. Eiseien 1992: 125 points out that while the Court denied that a general
enrichment action existed in Roman-Dutch law, the Court did not however shut the door on the
possibility of such an action being recognised in future. For a suggested enrichment action, see
in general Smith 2002.
112
Kommissaris van Binnelandse Inkomste en 'n Ander v Wil/ers en Andere 1994 (3) SA 283 (A) at 333
(C).
113
Kommissaris van Binnelandse Inkomste en 'n Ander v Wil/ers en Andere 1994 (3) SA 283 (A) at 333
(D).
114
See for example Bowman, De Wet and Du Plessis NNO and Others v Fidelity Bank Ltd 1997 (2) SA
35 (A) at 40 (A) - (B); First National Bank of South African Ltd v Perry NO and Others 2001 (3) SA
960 (SCA) at par [28].
115
116 See Watson NO and Another v Show NO and Others 2008 (1) SA 350 (C) at par [10].
SALRC 2006: 123: "The law is, however, still not clear-relying on these laws is risky and
unpredictable. Courts are very concerned about certainty and if there is any doubt and a judge is
unclear, he or she might be unwilling to make any decision."
384
2.2.2 Proprietary estoppel (also known as estoppel by encouragement or
estoppel by acquiescence) 117
In English law proprietary estoppel has played a significant role within the context
of life partnerships. In this regard where a life partner was to his or her detriment
encouraged (or by way of an omission led to believe) that he or she had acquired
a legal right to property while this was in reality not true, the owner (or the
executor of the estate) could be estopped from asserting the truth, provided that
the non-owner could prove that the inference was reasonable given the situation
created.!" The onus of proof rests on the non-owner, who must prove reliance
and detriment.!" The encouragement or representation must relate to a specific
asset or pool of assets.F? The reliance need not be based on a purely financial
contribution, for as the Law Commission of England and Wales states "domestic
activities' and associated sacrifices of paid employment, may constitute
detrimental reliance for the purposes of proprietary estoppel", provided that the
non-owner can prove that the contribution was given on the basis of the
representation and was not an automatic consequence of the relationshtp.!"
English case law provides an illustration of how proprietary estoppel can affect
the consequences of the termination of a life partnership. For example, in
Way/ing V Jones'" the deceased partner in a homosexual life partnership
bequeathed property to W in his will, but by the time of the deceased's demise
the property had already been sold to an outsider.!" W alleged that this property
had been promised to him by the deceased, on the basis of which promise he
had lived with the deceased and worked for him for a pittance. On appeal, the
117
See the English case of Toy/or Fashions Ltd v Liverpoo/ Victoria Trustees Co Ltd [1981J 1 All ER
897.
118 Singh 1996: 319; SALRC2006: 122.
119
Singh 1996: 319; SALRC2006: 122. In English law the onus shifts to the owner once the non-
owner can prove that the owner made a promise that induced him to act to his detriment-see
Ottey v Grundy [2003J EWCA Civ 1176 at par 56.
120 EWLC2007: 160.
121 EWLC2007: 161.
122
1993 WL 963305 (CA (Civ Div)); [1993J 69 P.& CR. 170.
123 Sonnekus2000: 207.
385
Court held that the deceased had made a promise to W on which he had relied to
his detriment, as a result of which his appeal was successful.!" The Way/ing
case has been referred to with approval in subsequent English case law.125
A further example from English law is the case of Ottey v Grundi26 where the
deceased failed to provide for his former live-in female "companion" in his will,
but had in a so-called "letter of intent" promised her a life interest in a houseboat
as well as ownership of an apartment in Jarnalca.!" The Court of first instance
(confirmed on appeal) awarded her an amount of f 50,000 and ordered the
executor of the estate to "use his best endeavours to secure a transfer of the
Jamaica apartment into the name of Miss Ottey and in default to pay her the
further sum of f 50,000.,,128
The current position in English law, therefore, is that the Courts have a wide
discretion in terms of deciding how the non-owner's "equity" against the owner is
to be satisfied. According to the Law Commission of England and Wales:
In some cases, they will give effect to the applicant's expectation. In others, they will
simply compensate the applicant for the loss suffered in relying on the assurance, rather
than giving the applicant what was promised. The remedy will frequently involve
conferring on the applicant some sort of proprietary interest, although not necessarily a
124 See the summary of the case as obtained from
httR:/Ii nternationa I.westlaw .com/R ri nt/Rri ntstrea m .asRx?sv=Fu11&Rrid=ia 7448749000 (accessed
on 14 May 2009). Although it is accepted that "the doctrine of proprietary estoppel cannot be
treated as subdivided into three or four watertight compartments" (per Robert Walker U in
Gillett v Halt (2000) 2 All ER 289 at 301), representation (promise or assurance), reliance and
detriment constitute the core elements of this claim in English law. The promise or assurance
does not have to constitute the only inducement that led to the detrimental conduct, but there
must be a causal nexus between the promise and the plaintiff's detrimental conduct. Once
promise and inducement have been established, the onus shifts to the defendant to prove that
the plaintiff did not rely on the promises made-see Gil/ett v Halt (2000) 2 All ER289 at 302, 303
and Ottey v Grundy (2003) EWCA Civ 1176 at par 56, both citing Balcombe U in Wayling v Jones
1993 WL 963305 (CA (Civ Div)); (1993)69 P.& C.R. 170 at 173).
125 See Gillett v Halt (2000)2 All ER289 at 302,303; Ottey v Grundy (2003) EWCA Civ 1176 at par 56.
126 (2003) EWCA ov 1176.
127 .Par 2 read with par 18 and 19.
128 Par 33 of the judgment of the Court of Appeal (Civil Division).
386
beneficial share; or it may entail monetary compensation. In some cases, the court may
conclude that no remedy is necessary at all in view of benefits enjoyed by the applicant
which cancel out the disadvantage he or she sustained.129
In view of the above, it is submitted that doubt persists as to the extent (if any) to
which the doctrine of proprietary estoppel can play a role in South African law.
The most important reasons for making this assertion are the following:
(i) Sonnekus 130 mentions that the approach in the Way/ing case would not
succeed in South African law as, with the exception of an antenuptial
contract, any contract 131 that attempts to fetter testamentary freedom is
contra bonos mores,132 and hence estoppel could not be relied on to
accomplish something that could not have been accomplished by contract.
It is submitted that this (correct) line of reasoning appears to put paid to
any thoughts of applying estoppel where the law of succession is involved.
(ii) Bearing point (i) in mind, the next question that arises is whether
proprietary estoppel can play a role where the life partnership is
terminated while both parties are still alive (so that no question of freedom
of testation arises). When one considers academic writing on this topic,
both Singh 133 and the South African Law Reform Commission 134 appear to
accept that this doctrine may provide an "alternative" to "disadvantaged"
life partners. The problem that however presents itself is that neither of
these sources provide any firm South African authority in support of their
129 Footnotes omitted.
130 2000: 207.
131 The term "contract" means any document that does not comply with formalities prescribed for a
valid will as prescribed by the Wills Act 7 of 1953. A donatio mortis causa is an example of a
contract that will curtail freedom of testation if it complies with the formalities prescribed by this
Act-see De Waal and Schoeman-Malan 2008: 218.
132 See for example MeA/pine v MeA/pine NO and Another 1997 (1) SA 736 (A) at 746 (H) - 747 (F);
Barman en De Vos NNO en 'n Ander v Potgietersrusse Tabakkorporasie Bpk en 'n Ander 1976 (3)
SA 488 (A) at 501 (A) - (E); De Waal and Schoeman-Malan 2008: 213.
133 1996: 318, 319.
134 2006: 122.
387
views: The Commission cites Singh as its sole source, while Singh, in
turn, cites no authority whatsoever in support of her opinion. In contrast,
when the issue of proprietary estoppel is discussed by Sinclair and
Heaton.l " these authors make it clear that they are discussing English as
opposed to South African law. The difficulty is that neither Singh nor the
Commission attempt to provide any explanation as to two fundamental
problems with the application of the English approach to South African
law, namely, first, that in our lawestoppel does not found a cause of
action but is a defence.!" and second that estoppel cannot lead to
acquisition of ownership.!" In English law "proprietary estoppel" is
recognised as a cause of action.138 In addition, the second problem, in
particular, illustrates why a finding such as that in the Ottey case would
not be possible in South Africa, as estoppel cannot be used to "create a
title.,,139 Failing an express adoption of the English law relating to
proprietary estoppel, it appears that the doctrine could currently, at best,
permit the non-owner to remain in possession of the property (in
accordance with the established principles governing estoppel in South
Africa) or to be compensated along similar lines to the Way/ing case,
namely for "investing energy and labour in the business.t"? or for
"domestic activities'T" that relate directly to the owner's representation as
opposed to the relationship between the owner and the non-owner.
135
1996: 274, 275 (note 26).
136
Pandor's Trustee v Beatley & Co 1935 TPD 358 at 364: "Estoppel is a weapon of defence, and not
one of offence" (per De Wet J).
137
Sonnekus 2000: 197. Estoppel can be used to enable the litigant relying on estoppel to remain in
possession of property, but ownership remains vested in the true owner-see Apostoliese
138 Geloofsending van Suid-Afrika (Maitland Gemeente) v Capes 1978 (4) SA 48 (C) at 56 (E) - 58 (E).
Sonnekus 2000: 22 (note 107).
139
Bi/oden Properties (Pty) Ltd v Wilson 1946 NPD 736 at 749, 750.
140
Per Sonnekus 2000: 207. In such an instance an election may need to be made between
instituting a claim based on unjustified enrichment versus relying on estoppel.
141
EWLC2007: 161.
388
In the light of the aforegoing, it appears that both Singh and the Law Reform
Commission may be overly (perhaps unduly?) optimistic about the extent to
which proprietary estoppel may play a role in South Africa.
There is however no doubt that South African law permits estoppel to be raised
in order to prevent a life partner from denying that he or she was the agent of the
other partner; with the result that partners who have held themselves out as
being married may be liable for each other's contracts for household necessaries
in the same way as they would have been if they were validly rnarrled.l'"
2.2.3 The constructive trust
According to the Cape High Court in Administrators, Estate Richards v Nicho/143
South African law requires five essential elements in order for a valid trust to be
constituted.!" These are:
i) The trust founder must have the intention to create the trust;
ii) This intention must be expressed in a mode apt to create an obligation;
iii) The trust property must be defined with reasonable certainty;
iv) The object of the trust must be defined with reasonable certainty (for
example whether the trust has a personal or impersonal object and who
the trust beneficiaries are); and
v) This object must be lawful.145
142
Thompson v Model Steam Laundry Ltd 1926 TPD 674; Sinclair and Heaton 1996: 284; SALRC2006:
122; Schwellnus 2008: N7.
143 1996 (4) SA 253 (C) at 258 (E) - (F).
144 See also Olivier 1990: 32 et seq.
145
In Peterson and Another NNO v Claassen and Others 2006 (5) SA 191 (C) an important distinction
was drawn between a lawful trust object and a lawful trust purpose. As the reasons for this
distinction fall beyond the scope of this work, it will suffice to say that the two cannot be
equated and that an unlawful purpose will not necessarily invalidate the trust-see paragraphs
[16], [17], [21], [22], [24) and [28).
389
Recent case law such as Land and Agricultural Bank of South Africa v Parker
and Others146 has emphasised the need for what Du Toit147 describes as two
"ancillary requirements" to be present, namely (i) that the trust founder must
relinquish control over the trust property, and (ii) that a functional separation
between control over the property and enjoyment thereof must be maintained.
The first requirement listed above has been described as necessitating a "clear
and unambiguous lntentlon"!" which makes it clear that a trust cannot be
created untntentionally.l'" This immediately explains the first of two reasons why
the constructive trust as recognised in English law (where it is often pleaded in
the alternative to proprietary estoppetj"? has not been received into South
African law, as "constructive trusts are imposed on persons in situations where
they clearly had no intention of being bound by a trust."!" Furthermore, the
constructive trust is simply redundant in South African law, because other
remedies (such as delictual liability for breach of trust and liability based on
unjustified enrichment) can be used in order to achieve the same results.l'"
Consequently, there is little motivation or need for introducing the constructive
trust into South African law either within the context of the law of trusts proper or
as a remedy available to life partners.P"
There is of course nothing to preclude life partners from creating a trust in
accordance with established South African legal principles in terms of which
either or both are designated as trust beneficiaries. Interestingly, although the
146 2005 (2) SA 77 (SCA); [2004) 4 All SA 261 (SCA).
147 2007: 27.
148 Du Toit 2007: 28.
149
Honoré and Cameron 2002: 117. This is not to say, however, that peremptory language and the
use of words such as "trust" and "trustee" are essential-the intention of the founder is of
paramount importance, and the intention to create a trust may be inferred through
interpretation of the trust instrument (normally a will or a contract) as well as the surrounding
circumstances-see Du Toit 2007: 28; Pace and Van der Westhuizen 2008: B8.l.
150
EWLC 2007: 160.
151
Per Honoré and Cameron 2002: 131.
152
For a detailed discussion see Honoré and Cameron 2002: 131- 136.
153
Sinclair and Heaton 1996: 277; SALRC2006: 124.
390
life partners may be living together in a "family unit", the fact that they are not
related to one another may enable them to escape the "independent outsider"
requirement as imposed by Cameron JA on family trusts in Land and Agricultural
Bank of South Africa v Parker and Others.154
2.2.4 Will
It is self-evident that life partners who wish to benefit one another as heirs or
legatees should make use of a will in order to do SO.155
2.3 Conclusion
The analysis of universal partnerships, proprietary estoppel and constructive
trusts conducted above makes it clear that none of these options offer reliable
and consistent protection to life partners. As a result the inevitable conclusion
must be that the task of regulating the patrimonial consequences of life
partnerships must be assigned to the legislation developed in consequence of
the domestic partnerships rubric advocated in Chapter 3.
154
2005 (2) SA 77 (SCA) at par [35]: "The debasement of the trust form evidenced in this and other
cases, and the consequent breaches of trust this entails, suggest that the Master should, in
carrying out his statutory functions, ensure that an adequate separation of control from
enjoyment is maintained in every trust. This can be achieved by insisting on the appointment of
an independent outsider as trustee to every trust in which (a) the trustees are all beneficiaries
and (b) the beneficiaries are all related to one another" (emphasis added). Pace and Van der
Westhuizen (2008: B.6.2.3.1) seemingly share this opinion when they opine that "persons living
together" will "most probably" be excluded from its ambit. In view of the broadening notion of a
"family unit" in contemporary South Africa a reconsideration of terms such as "related" may in
future be required.
155 Cronjé and Heaton 2004: 236; Schwellnus 2008: N22.
391
2.4 An interesting (and uncertain) situation: The application of the
putative spouse doctrine to life partnerships in the wide sense and to
bigamous marriages
In the case of Zulu v Zulu and Others 156 a male spouse in a subsisting civil
marriage attempted to enter into a second civil (and consequently bigamous)
"marriage." Upon his death, his second "wife" approached the Courts for relief,
only to be denied the same due to the invalidity of her "marriage." This type of
scenario could easily present itself within the context of a life partnership, where
it may occur that one of the life partners has already concluded a civil marriage
with someone else (hence-as seen in Chapter 4-implying a life partnership in
the wide sense). The question as to whether it is possible for a married person
to "create a community of property"!" with a second "spouse" or with a life
partner and the role to be played by the putative spouse doctrine in this regard is
therefore relevant for both the law of marriage and for prospective legal
developments pertaining to life partners. This question in turn raises a number of
pertinent issues such as the need to recognise a putative community between
the married person (the common spouse) and the second "spouse" or partner,
and the basis (if any) upon which the parties involved ought to be permitted to
share therein. In the discussion that follows an analysis of the regulation of this
issue in certain jurisdictions will be conducted with a view to pointing the way
forward for South African law. From the outset it must be emphasised that the
discussion that follows will attempt to "cherry-pick" elements of the putative
spouse doctrine from these jurisdictions despite the fact that the operating
environments in which the doctrine functions in some of these jurisdictions may
differ quite considerably from that in South Africa. In addition, as most of these
jurisdictions thus far only apply the putative spouse doctrine in the case of
marriage (as opposed to life or domestic partners) the discussion that follows will
156 2008 (4) SA 12 (D).
157 Singh 1996: 324; SALRC2006: 121.
392
for the most part be limited to that context. Nevertheless, it will be seen that
many of these principles could be equally relevant in a life partnership setting.
2.4.1 Comparative analysis 158
As it has been suggested that the South African Legislature may do well to
consider the approach adopted by the State of California,159 it is convenient to
consider the legal position in the United States as the point of departure for the
comparative analysis that follows. Due to the specific nature of the matrimonial
property regimes encountered in the Zulu case (i.e community of property), the
discussion of American law will focus mainly on California, Texas and Louisiana
which are so-called "community property jurisdictions" that specifically adopt the
putative spouse doctrine in its pure form (thus according de facto validity to a
marriage which is void), and entitle the second "wife" to community property
rights in the estate created during the second "marriage.,,16o
158 The author of this thesis would like to express his gratitude towards the anonymous reviewer of
an article submitted (after this thesis had been assessed) to the International Journal of Law,
Policy and the Family for his or her helpful and insightful comments pertaining to this
comparative analysis.
159 See Singh 1996: 324.
160 See Sarno 2010: § 2[a]: "On the other hand, many jurisdictions not adopting the 'putative spouse
doctrine' are willing to grant some relief to a party whose good faith cohabitation with a
bigamous spouse was under color of marriage, the courts generally proceeding on the basis of
partnership, constructive or resulting trust, or other equitable theories. Nonetheless, the terms
'putative spouse' and 'putative marriage' are not infrequently used by courts in these
jurisdictions which do not formally recognize the 'putative spouse doctrine.' While the courts in
the latter cases evidently use the term 'putative spouse' to connote approximately the same
thing as it denotes in jurisdictions adopting the 'putative spouse doctrine: the outcome of the
cases differs between the two types of jurisdictions, in terms of the respective property rights of
a lawful spouse and a 'putative spouse: since only under the pure 'putative spouse doctrine' is
de facto validity accorded to the otherwise invalid bigamous marriage" (italics added).
393
2.4.1.1 The United States of America
2.4.1.1.1 California
With reference to South African law Singh 161 observes that "real problems do
arise with the enforcement of a cohabitation agreement-express or implied-
where the partner being sued is still legally married to a third party." In this
regard she opines that:
Further assistance to South African lawmakers may be garnered from the California
Family Law Act of 1972. Section 118 of this Act was amended to provide that the
earnings and accumulations of both spouses while living separate and apart from the
other spouse, are the separate property of the spouse concerned. Consequently, it is
possible for a cohabiter to create a community of property with his or her partner to
whom he or she is not married which has no effect on the community of property
established with his spouse.l"
The California Family Law Act to which Singh refers was repealed in 1994, and
the relevant provisions are now embodied in the California Family Code. Section
771(a) of the Code provides that in the case of a married person who lives
"separate and apart" from his or her spouse in a sequential relationship, "the
earnings and accumulations" of that person and any minor children living with
him or her is regarded as separate property. This is of particular relevance as far
as the position of a married person who cohabits with another is concerned, as
the Code also permits a married person to "convey" his or her separate property
without his or her spouse's consent.163 In accordance with the decision of the
Supreme Court of California in Marvin v Marvin,164property sharing between a
married person and his or her cohabitant will ostensibly take place as per
161 1996: 323.
162 1996: 324.
163 Section 770 (b).
164
(1976) 18 Cal. 3d 660. This case is discussed in 2.4.3.4.2 below.
394
agreement, whether express or tacit. In consequence, it appears as if Singh is
correct in stating that in terms of Californian law a married person may indeed
create some form of community of property with his or her partner, provided that
he or she does not cohabit with his or her spouse.l'"
In terms of the Family Code a marriage concluded by a person while his or her
former spouse is still alive is void ab initio unless the aforementioned conditions
are met or unless the spouse is "generally reputed or believed by the person to
be dead at the time the subsequent marriage was contracted.,,166 With the
obvious exception of condition (ii), a subsequent marriage is valid until declared
null and void.167
Section 2251 of the Family Code provides that in the event of a Court finding that
a marriage is putative in nature (the concept for the most part being defined in
the same way as South African law, save that a California Court may also
declare a voidable marriage to be putative ),168the Court shall, where property
division is at issue, divide all property acquired during the union which would
have been community property or quasi-community property 169 but for the
voidness or voidability of the "marriage" according to the general rules relating to
the division of property as set out in sections 2500 to 2660 of the Code. This
implies that property division takes place in the same way as if the putative
marriage had been a valid marriage, with the only difference being that property
so divided is known as "quasi-marital property," as a valid marriage is required
165
Singh 1996: 324 (referring to section 118 of the erstwhile California Family Law Act of 1972).
166 Section 2201(a)(1) and (2).
167 Section 2201(b).
168 Section 2551(a).
169
According to section 125 of the Code: "'Quasi-community property' means all real or personal
property, wherever situated, acquired before or after the operative date of this code in any of
the following ways:
(a) By either spouse while domiciled elsewhere which would have been community
property if the spouse who acquired the property had been domiciled in this state at the
time of its acquisition.
(b) In exchange for real or personal property, wherever situated, which would have been
community property if the spouse who acquired the property so exchanged had been
domiciled in this state at the time of its acquisition."
395
for a true community of property to arise."? Californian law is not clear on the
issue of whether a mala fide spouse is entitled to a half share of the quasi-marital
property, but the opinion has been expressed that the bona fide "spouse's"
expectations are not thwarted by an equal division as the parties would have
accepted an equal division as a consequence of the dissolution of a valid
marriage and would have prepared accordinqly.!"
Due to the fact that the California Probate Code (which governs property
distribution on death) is silent on the position of intestate succession by a
putative spouse, the Courts permit such estates to be distributed on the basis of
equity.172 Upon the death of the common spouse (the person "married" twice),
equitable principles dictate that at least one half of the "quasi-marital property" is
awarded to the putative (as opposed to legal) spouse."! Where the common
spouse dies intestate the remaining half must, on the evidence presented, be
characterised as either community property of the legal marriage or separate
property of the common spouse. The law of intestate succession then
determines the fate of the property.V" In the event of the common spouse
leaving a valid will, the common spouse's half of the quasi-marital property is
once again characterised, and he or she will be entitled to dispose of one half of
the property characterised as community property of the common spouse and
the legal spouse (with the legal spouse being entitled to the other half), and to
dispose of all property characterised as his or her separate property.!"
A final important aspect to consider is that the California Legislature enacted the
Domestic Partner Rights and Responsibilities Act of 2003176on 1 January 2005,
170 Section 2251(a)(2); Raye and Pierson 2009: § 20: 104.
171 Raye and Pierson 2009: § 20: 105, drawing on Marvin v Marvin (1976) 18 Cal. 3d 660.
172 Estate of Vargas 36 Cal.App.3d 714 at 718, 719.
173 Sousa v Freitas 10 Cal.App.3d 660, 89 Cal.Rptr. 485 (Ist Dist. 1970); Raye and Pierson 2009: § 20:
109; Wallace 2003: 100. The putative spouse only shares in property acquired during the
putative marriage-see Estate of Ricci 201 Cal.App.2d 146, 19 Cal.Rptr. 739 at 149.
174 Raye and Pierson 2009: § 20: 109.
175 Raye and Pierson 2009: § 20: 109.
176 Also known as Assembly Bill 205 of 2003 (Chapter 421, Statutes 2003).
396
which greatly improved the legal position of such partners by extending most of
the rights and responsibilities attached to marriage to registered domestic
partners."? According to section 297(a) of the California Family Code, domestic
partners "are two adults who have chosen to share one another's lives in an
intimate and committed relationship of mutual caring." Domestic partners must
be of the same sex (in California marriage is restricted to heterosexual
couplesj.!" unless at least one partner is a minimum of 62 years of age, in which
case a heterosexual couple may qualify as such. Section 297(2) contains a vital
qualification for such a partnership in that neither partner is permitted to be
married or involved in another subsisting domestic partnership. Sections
297.5(a) through (d) make it clear that domestic partners, former domestic
partners and the surviving party to a domestic partnership terminated by death
enjoy and are subject to most of the legal rights, responsibilities and obligations
that attach to marriage, including those related to children. Termination of a
registered domestic partnership must take place by way of an order of Court,
unless special conditions are present.V? The California Court of Appeal has
recently held that the putative spouse doctrine is applicable in the case of a
registered partnership that was not properly registered in accordance with
177 Ellis v Arriaga 162 Cal.App.a'" 1000; 76 Cal.Rptr.Bd 401 at 405; SALRC 2006: 251. Although
California became the first American State to establish a domestic partnership registry in 1999,
very few rights were extended to such partners. This changed when the Domestic Partner Rights
and Responsibilities Act was enacted-see
http://en.wikipedia.org/wiki/Domestic partnership in California (accessed on 29 April 2009).
178 In November 2008 the California electorate voted in favour of "Proposition 8", a proposition to
restrict the right to marry to two persons of the opposite sex. A lawsuit was filed in the California
Supreme Court challenging the constitutional validity of this proposition, but the Court upheld its
validity on 26 May 2009-see
http://ballotpedia.org/wiki/index.php/California Proposition 8 (2008) (accessed on 14
September 2009).
179 This takes place by way of a Notice of Termination of Domestic Partnership that is filed with the
Secretary of State in the event of all of the conditions listed in section 299(a){1) - (10) being
present. Unless the termination is revoked, the partnership is dissolved six months after filing
(section 299(b)). A Superior Court may set aside the termination, and in addition has jurisdiction
over any aspect pertaining to such dissolution (section 299(c) and (d)). With the exception of the
conditions listed in section 299(a)(l) - (10), the dissolution or annulment of a domestic
partnership or legal separation of the partners follows the same procedures and occasions the
same rights and responsibilities as a marriage-section 299(d); Ellis v Arriaga 162 Cal.App. 4th
1000; 76 Cal.Rptr.Bd 401 at 406.
397
statutory requirernents.l'" The significance of this finding for South African law
will be discussed in Chapter 7 that deals with the Domestic Partnerships Bill,
2008.
The conclusion, then, is that Californian law will permit a spouse to create a
separate community of property either (i) by way of express or implied contract
with a cohabitant; or (ii) in the event of such spouse being a party to a putative
marriage or "putative" domestic partnership.
2.4.1.1.2 Texas and Illinois
The decision of a Federal Court in Illinois in the case of Central States v Gray181
provides valuable insight into the regulation of putative marriages in two
American States, namely Illinois and Texas. Before this case is discussed, it
must be mentioned that section 7.001 of the Texas Family Code stipulates the
"general rule" regarding property division at the termination of a marriage:
In a decree of divorce or annulment, the court shall order a division of the estate of the
parties in a manner that the court deems just and right, having due regard for the rights
of each party and any children of the marriage.
The importance of this general rule will become evident in the discussion that
follows.
In Gray, the deceased (J) had entered into a marriage with S in 1965 in
Louisiana. Although a judgment of separation had been entered in 1971, the
parties had never been divorced. Both Sand J had "remarried" despite this
impediment: S had married M in 1973 and J married P in 1984. J and P were
180
Ellis v Arriaga 162 Cal.App. 4th 1000; 76 Cal.Rptr.3d 401. This judgment was delivered on 6 May
2008.
181
2003 WL 22339272 (N.D.III). See Brown 2004: 182 for a brief summary of the case.
398
divorced in 1997, but J was married again three years later, this time to G. The
latter marriage subsisted until J's death in the State of Texas in 2001.182
The central issue that arose for determination in this case was whether S or G
qualified as J's "surviving spouse" for the purpose of a pension benefit. For a few
months after J's death the benefit was paid to G, but when S submitted a claim
on the basis of allegedly being the decedent's surviving spouse, the Fund
suspended all payments pending the resolution of this question by way of an
interpleader action instituted by the Fund.183 As the pension plan was
administered in the State of Illinois, the interpleader action was instituted in the
federal Court of that State.
The terminus a quo for deciding this matter was the wording of the plan itself,
but, as no guidance could be obtained in this regard, the Court held that recourse
was to be had to State law in order to determine which party was J's "surviving
spouse." This immediately raised the issue as to which State's law was to apply,
for, as seen above three potential jurisdictions were concerned. This question
was quickly resolved by Senior Judge Plunkett's finding that the legal system that
obtained where J was domiciled at the date of his death was decislve.l'"
According to the Court Texas law recognised the concept of a putative marriage,
and provided that in such a "marriage" the bona fide spouse had "the same right
in property acquired during the marital relationship as if she were a lawful
spouse.,,185 In the circumstances, the Court was prepared to accept that G
qualified as a bona fide putative spouse under Texas law, with the result that the
182 At lo
183 At1and2.
184 At 3.
18S Garduno v Garduno 760 S.W.2d 735 (Tex.App.1988) at 738, 739. Along with recognising the
concept of a putative spouse, Texas law provides for both common-law as well as ceremonial
marriages-see note 71 in Chapter 4. If a spouse attempts to marry another person while
already a party to an existing valid marriage, the second "marriage" is void (section 6.202(a)
Texas Family Law Code). The second "marriage" however becomes fully valid once the prior
marriage is dissolved provided that the parties to the second marriage "have lived together as
husband and wife and represented themselves to others as being married" (section 6.202(b)).
399
attendant patrimonial consequences were apooslte.l'" Furthermore, as the
Courts in that State applied a so-called "acceptance-of-the-benefits" doctrine.l'"
Texas law estopped S from contesting the validity of the termination of her
marriage after having accepted and benefitted from the same since 1971.188 In
light of the above, and of the fact that S had neither relied on J for economic
support since 1971 nor anticipated any marital benefit at his death, the Court
concluded that G was entitled to the benefit as his "surviving spouse.,,189
In order to substantiate this conclusion, Judge Plunkett remarked that the case
would have had the same outcome if Illinois law had been applicable, as the
Illinois Marriage and Dissolution of Marriage Act states that a putative spouse (a
person who, after going through a marriage ceremony, cohabits with another
person in the bona fide belief that the marriage is valid) "acquires the rights
conferred on a legal spouse.,,190 (It should be borne in mind that this is at best a
federal Judge's view of what the Illinois State Court's decision would be.)
Further, in the event of there being a legal spouse or other putative spouse
[the) rights acquired by a putative spouse do not supersede the rights of the legal
spouse or those acquired by other putative spouses, but the court shall apportion
property, maintenance and support rights among the claimants as appropriate in the
ar.cums tancess and Iin tnhe i.nterests 01j"ustice ...191
Even though both Sand G fell within the ambit of possible protection under the
extract quoted above, the Court held that the criteria therein demanded that G be
regarded as the surviving spouse. In addition, on the basis that it would be
186 At 3.
187
"The doctrine is based on the equitable principle of estoppel and precludes a litigant from
accepting the benefits of a judgment and then subsequently challenging that portion of the
judgment affording him those benefits" (at 3).
188 At 3.
189
At 3.
190
A putative spouse's status as such and acquisition of further rights terminates when he or she
becomes aware of the invalidity of the marriage.
191
Section 305.
400
contrary to public policy to permit her to receive benefits from a marriage after
accepting the benefits of its termination, S could be estopped from alleging that
she was J's surviving spouse.!" This conclusion was strengthened by the fact
that the deceased had earned the benefits in question after he and S had been
separated.l'" In the end result, G was therefore held to be J's surviving spouse.
Another Texas case which is of relevance (in this case within the context of
divorce) is the case of Garduno v Gerauno.ï'" In this case the appellant (R) and
appellee 195 (M) had cohabited as from 1980 until their relationship ended in 1986.
Throughout the course of their relationship, the parties had held themselves out
as being married. A year into the relationship, M found out that R was still
married. After convincing M that he was still intent on marrying her, R attempted
to divorce his wife in the Mexican Courts, as the latter still resided in that
country.I" R and M exchanged wedding rings in the meantime (in 1982), and
informed all who inquired that they were rnarrled.!" In 1984 R was able to
provide M with proof of a decree of divorce, only for him to be telephoned by his
Mexican legal representative not long thereafter and informed that an appeal
against this order had been upheld by a Mexican Appellate Court. R informed M
of this developrnent.l'" R and his wife were eventually divorced by a Texas
Court in 1986, but within months of this development his relationship with M had
also come to an end. M attempted to obtain a decree of divorce on the basis of
the common-law marriage which she alleged to have existed between herself
and R. The Trial Court recognised both the existence of the common-law
marriage as well as the putative marriage that had existed while R was still
married to his first wife. On this basis, M was awarded a substantial share of R's
192 At4.
193 Footnote 4 of the judgment.
194 760 S.W.2d 735 (Tex.App.1988).
195 This term, foreign to South African law, is the term used by the Court in Garduno.
196 At 737.
197 At 739, 740.
198 At 740.
401
half share of the community property that had existed between himself and his
first wife.199
On appeal, the Court held that the evidence did not support the conclusion that
the parties had attempted to enter into a common-law marriage prior to M
becoming aware of R's married status in January 1981. As a consequence,
there was no possibility of the marriage being putative up until that point.2oo A
common law agreement had however come into existence in 1982, and
therefore, provided she was able to prove that she was of the bona fide belief
that R's first marriage had been dissolved by the Mexican Court in 1984, a
putative marriage could have existed after she had been shown that Court's
divorce decree.201 As M had testified that neither she nor R had believed the
information received from the Mexican lawyer in 1984 to be true, the Texas Court
had to adjudicate whether this disbelief was sufficient to satisfy the bona fides
requirement so as to render the marriage putative. As it had been received from
a reputable source, the Court held that she was no longer bona fide once the
information received from the Mexican lawyer had been imparted to her.
Nevertheless, nothing turned on the fact that the marriage was indeed putative
up until that time, as no property in dispute had been acquired during this
period.202 A common-law marriage had indeed come into existence between R
and M once R and his first wife had been properly divorced in 1986,203as a result
of which a new community of property had been created consisting of items
acquired after that date. As the disputed property had been acquired prior to the
existence of the latter marriage, M could have no community interest therein, as
it formed part of the community that existed (and had been divided) between R
199
At 737 and 738. The other half of the community property belonged to R's first wife by virtue of
their marriage.
200 At 740.
201 At 740.
202
At 740, 74l.
203
This principle was previously stipulated in section 2.22 of the Texas Family Code, but is now
contained in section 6.202(a) and (b) of the Code (these provisions are quoted in note 185
above).
402
and his first wife.204 R was however free to dispose of his interest in the latter
community as he wished, with the result that M would only be able to retain gifts
made to her on this basis.205
In conclusion, it is clear that Texas law allows a putative spouse all the rights of a
lawful spouse, with the result that on divorce property (which is limited to that
which was acquired during the existence of the putative marriage) is apportioned
on the basis of principles of equity.206
If the property stands to be divided due to the death of the common spouse, two
separate estates are recognised namely the legal and the putative. The putative
wife is entitled to the same rights in property acquired during the putative
marriage as she would have been if she were a lawful wife.207 Under community
property law, she is entitled to an undivided half of the putative estate that
existed between herself and the deceased, while the legal wife and the heirs of
the putative marriage share the other half equally (that is to say one quarter to
the legal wife and the other quarter to the heirs of the putative marriage).208 The
legal wife and the heirs of the lawful marriage are each entitled to an undivided
half of the legal estate as it existed until the putative marriage was entered
into.209 Where a bigamist dies intestate and is survived only by his wives, the
lawful wife will receive the entire legal estate, while the putative estate will be
shared equally between the legal wife and the putative wife.21o
204 At 741.
205 At 741.
206 Davis v Davis 521 S.W.2d 603, 606 (Tex. 1975); Wallace 2003: 97; Fine 1983: 722;
http://www.powerfamilylaw.com/marriage.html(accessed on 23 April 2009).
207 Davis v Davis 521 S.W.2d 603 at 606.
208 Parker v Parker 222 F. 186 at 194, 195; Sarno 2010: §§ 5, 11.
209 Parker v Parker 222 F. 186 at 194, 195; Sarno 2010: § 5.
210 Hammond v Hammond 49 Tex.Civ.App. 482,108 S.W. 1024 at 484.
403
2.4.1.1.3 Louisiana
The law relating to putative marriages in Louisiana was in the past characterised
by inconsistent application of Spanish and French law despite the fact that the
Louisiana Civil Code of 1825 had transplanted articles 201 and 202 directly from
the Code of Nepoteori/" Although the Civil Code of 1870 retained the original
wording, in 1987 article 196 introduced the prevailing legal position. Due to the
influence of French and Spanish law, the law relating to putative marriages
constitutes a blend of statutory law as interpreted in the light of these sources.212
Nevertheless, the Code provides that a putative spouse to a void "marriage" who
in good faith believed it to be valid is entitled to the civil effects of marriage.213 As
such, spouses in good faith will each receive one-half of the community
property.F" Where a second "marriage" has been entered into while the first
subsists, Louisiana distinguishes between the situation where the common
spouse was in good or in bad faith.215 If the common spouse was in good faith,
the position is similar to French law in that the common spouse is entitled to half
of the putative community, while the other half is shared equally between the
legal and putative spouses.ê" If the common spouse was mala fide, he (or his
heirs) forfeit(s) the right to share in the putative community, with the result that it
is split between the legal spouse and the putative spouse?"
211
Fine 1983: 712; Wallace 2003: 82.
212
Wallace 2003: 82, 83.
213
"Art. 96. Civil effects of absolutely null marriage; putative marriage
An absolutely null marriage nevertheless produces civil effects in favor of a party who contracted
it in good faith for as long as that party remains in good faith.
When the cause of the nullity is one party's prior undissolved marriage, the civil effects continue
in favor of the other party, regardless of whether the latter remains in good faith, until the
marriage is pronounced null or the latter party contracts a valid marriage.
A marriage contracted by a party in good faith produces civil effects in favor of a child of the
parties.
A purported marriage between parties of the same sex does not produce any civil effects."
214
Wallace 2003: 94.
215
Fine 1983: 713; Wallace 2003: 95.
216
Wallace 2003: 95; Fine 1983: 714.
217
Wallace 2003: 83 - 85 and 95; Fine 1983: 713.
404
2.4.1.1.4 States that have enacted legislation based on the Uniform Marriage
and Divorce Act, 1973
As family law falls within the law-making domain of individual States, this has
resulted in a fragmented and inconsistent body of law, with some States
permitting "easier" divorces (and sometimes using this as a form of tourist
attraction!),218 leading to couples attempting to obtain divorces across State lines
in so-called "divorce-mill [S]tates.,,219
In an attempt to curb this problematic state of affairs the Uniform Marriage and
Divorce Act of 1973 was approved in 1974 with a view to standardising the law.
States were encouraged to enact this legislation, and those that have done so
include Arizona, Colorado, Illinois, Kentucky, Missouri, Montana and
Washington.22o States which have enacted section 209 of the Uniform Act221 will
treat a putative marriage in a similar way as the State of Illinois (discussed
above) does. As an example hereof, section 518.055 of the Minnesota Statutes
states the following:
Any person who has cohabited with another to whom the person is not legally
married in the good faith belief that the person was married to the other is a
putative spouse until knowledge of the fact that the person is not legally married
terminates the status and prevents acquisition of further rights. A putative
spouse acquires the rights conferred upon a legal spouse, including the right to
maintenance following termination of the status, whether or not the marriage is
218 According to http://www.divorceresourcecenter.com/UMDA.htm (accessed on 4 May 2009) the
State of Nevada at one time required a minimum residency period of six weeks in order to secure
a divorce. In order to circumvent this requirement while simultaneously increasing tourism,
holiday packages at horse ranches were available where divorcing couples were accommodated
for the requisite period of time, after which they could obtain the decree of divorce.
219 Verschraegen 2007: 5-3; Friedman 1985: 503;
http://www.divorceresourcecenter.com/UMDA.htm (accessed on 4 May 2009). See Friedman
1985: 495 et seq for other problematic issues pertaining to diverging divorce and marriage laws
in the United States.
220 Information obtained from http://www.law.comell.edu/uniform/voI9.html#mardv (accessed on
4 May 2009).
221 Over and above Illinois, only Colorado, Minnesota and Montana have enacted section 209.
405
prohibited or declared a nullity. If there is a legal spouse or other putative
spouses, rights acquired by a putative spouse do not supersede the rights of the
legal spouse or those acquired by other putative spouses, but the court shall
apportion property, maintenance, and support rights among the claimants as
appropriate in the circumstances and in the interests of justice. 222
2.4.1.2 France
As is the case in South African common law,223French law also acquired the
doctrine of the putative marriage from Canon law.224 Article 201 of the French
Civil Code holds that provided it was concluded in good faith, the effects of a
marriage will obtain in the event of a marriage being declared a nullity.
Consequently, if both parties are in good faith, each is permitted to retain the
benefits to which he or she was legally entitled. In the event of only one "spouse"
being bona fide, the incidents of marriage will apply to that person only.225 In the
latter instance, the bona fide spouse may relinquish this right if the
consequences of doing so would be more favourable to him or her and may in
addition institute an action for damages against the blameworthy "spouse.,,226
Good faith is presumed by law and is permitted to relate to error of fact or of
law.227 Over and above the requirement of good faith, a second essential
requirement for putativity is participation in a marriage ceremony.F" The civil
effects of a putative marriage inure to the date of nullification and not, as in South
Africa and in other jurisdictions, until a party is no longer in good faith.229 Fine230
222 Emphasis added.
223 Hahlo 1985: 111 (note 69).
224 Fine 1983: 709.
225
Coester-Waltjen and Coester 2007: 3-152; Fine 1983: 709. As far as the effects of annulment on
children is concerned, article 202 provides that the consequences of a marriage apply
irrespective of the bona fides of the spouses themselves and that a judge determines aspects
pertaining to parental authority as he or she would have done in the case of divorce.
226
Coester-Waltjen and Coester 2007: 3-152. Article 1382 states that "Any act whatever of man,
which causes damage to another, obliges the one by whose fault it occurred, to compensate it"-
see http://www.lexinter.net/ENGLlSH/civilcode.htm (accessed on 26 April 2009).
227
Lee 1954: 44; Fine 1983: 709, 710.
228
Lee 1954: 44; Fine 1983: 709, 710.
229
Wallace 2003: 80.
406
summarises the consequences of a putative marriage in the following succinct
terms:
[Alii civil effects which came, or should have come, to the good faith participants during
the period between the ceremony and the judicial declaration are confirmed. The term
"civil effects" encompasses, broadly speaking, all rights exigible at law because of the
marriage, whether they can be enforced against the other participant in the void
ceremony, against third parties, or against the State.
Article 147 of the Civil Code provides that no person may enter into a subsequent
marriage until the first has been dissolved. Bigamy is consequently a ground for
absolute nullity, with the result that such an impediment cannot be rectified in
order to validate the marriage.
After much debate as to how property was to be apportioned where a person had
died leaving both a legal and a putative spouse,231 the French writers reached
consensus on the following position: The deceased estate is entitled to a half
share of the entire community (that is, the community existing between himself
and his legal wife at the time of the second "marriage" added to that accumulated
until his death).232 The first wife is entitled to half of the estate as it had existed
at the time the second marriage was entered into.233 As she was also a party to
the community that existed by virtue of the second "marriage" (the "putative
community"), she is entitled to a half share of this community as well. However,
the putative wife is also entitled to a half-share of the latter community, as both
communities were co-extensive. As this implies that both claims (which are
equally robust and worthy of protection) involve the same property, the property
is split and each wife is awarded a half-share thereof (which is to say each
230 1983: 710.
231
See Henderson 1941: 64 et seq for an exposition of the development of the various schools of
thought.
232
Henderson 1941: 67; Wallace 2003: 82.
233
Henderson 1941: 67.
407
receives one quarter of the putative cornrnunltyj.P" "In other words, the putative
community would be divided one-half to the successors of the deceased
common spouse, one-fourth to the legal spouse, and one-fourth to the putative
spouse.,,235 Over and above her one-quarter from the putative estate, the legal
spouse is also entitled to her half of the estate as it existed at the time of the
conclusion of the second "marriage."
2.4.2 South African case law
Before the case of Zulu v Zulu and Others 236is discussed, it is important to note
that this case did not involve a life partnership, but instead dealt with the law of
marriage. For this reason the discussion that follows and the conclusions
reached will for the most part be confined to the law of marriage. In the
concluding paragraphs of this discussion, reference will be made to the
relevance of these conclusions in a life partnership setting.
As seen in 2.4 above, the recent South African High Court decision of Zulu v Zulu
and Others 237provides a convenient backdrop against which the complexities
surrounding a spouse's ability to "create a community of property" with a second
"spouse" or with a life partner can be explored. In casu the applicant had entered
into a civil "marriage" with the deceased in 1985. Unbeknownst to her, the
deceased had already entered into a civil marriage with the first respondent
eleven years earlier. Both "marriages" to which the deceased had been a party
were concluded in community of property. As the first marriage was still in
existence, there was no doubt that the second "marriage" was bigamous and
therefore void ab initio.238 Alleging that she only became aware of the
deceased's prior marriage after his death, the applicant claimed that the
"marriage" to which she was a party was putative in nature and that she was, by
234
Henderson 1941: 68; Wallace 2003: 82.
235
Wallace 2003: 82.
236
2008 (4) SA 12 (D).
237
2008 (4) SA 12 (D).
238
At 14 (A) - (F).
408
virtue of the intended community of property, entitled to a half share of the
deceased estate.239 Hugo J was prepared to accept that the applicant had not
been aware of the fact that the deceased was already married and that she had
entered into the second "marriage" in good faith.24o After reiterating that bona
fides on the part of at least one "spouse" was required in order for a marriage to
be putative, Hugo J stated that where such a "marriage" was intended to be in
community of property, the bona fide spouse was entitled to have the assets
shared on that basis. This being the case, the learned Judge stated that he was
however unable to find any precedent where "there is an existing valid
community of property.,,241 As a spouse to a marriage in community of property
was unable to transfer his or her undivided half share of the joint estate to
another person, the Court held that it followed that in the absence of any
permissible exclusions therefrom, all of the assets in the deceased estate formed
part of the joint estate which had been created when the first marriage had been
solemnised.242 As for the applicant's claim that a universal partnership existed
between herself and the deceased, Hugo J held that this was impossible when
the requirements for a valid partnership were considered as: (i) any such
"agreement" between the parties was unlawful as the deceased was already
married; (ii) the intention to create such a partnership was absent; and (iii) there
was no profit motive. In the end result, the Court found that the applicant was not
entitled to any of the deceased's property.243
2.4.2.1 Problematic aspects of the Zulu case
It is respectfully submitted that this case is flawed in a number of respects which
include the remedy requested by the applicant as well as the judgment itself.
These difficulties will now be considered.
239 At 14 (F) - (G).
240 At 15 (A).
241 At 15 (C).
242 At 15 (E) - (H).
243 At 16 (A) - (C).
409
The premise behind the recognition of the concept of a putative marriage is that it
is na device to mitigate the harshness of annulment to an innocent spouse but
also, and more particularly, to mitigate the harshness of that annulment to
children born of the union.'?" As children were not at issue in casu, only the first
part of this statement is relevant for the purposes of the current discussion. As
far as the proprietary consequences of a putative marriage are concerned, our
Courts have on a number of occasions confirmed the common law position that
community of property (in the form of a tacit universal partnership) arises
irrespective of the fact that the marriage is null and void, so that, provided that
doing so would be to his or her advantage, the bona fide "spouse" could "enforce
the rights of property which would have been competent to him or her if the
marriage had been valid.'?" In view of the finding in M v M 246 where the plaintiff
had requested only that which she had brought into the "marriage" with her step-
father, it is clear that the Court is not bound to order a strict equal sharing of
property, but may deviate from the general rule if a strict equal sharing has not
been pleaded.!"
244
Per Friedman J in Moola and Others v Aulsebrook NO and Others 1983 (1) SA 687 (N) at 693(G) -
(Hl. referred to with approval by Findlay AJ in W v 5 and Others (1) 1988 (1) SA 475 (N) at 484 (I)
- 485 (B). Although made within the context of American law (with reference to the law in the
State of Louisiana) Henderson (1941: 55) explains this premise as follows: "The law, however, in
its omnipotence does not weigh the scales of justice too harshly against those who are innocent
violators, but makes an exceptional provision in favor of those who, acting in good faith, have
entered into an invalid marriage" (footnote omitted). This statement corresponds with the
underlying sentiment in South African law.
245
See the common law authority quoted by Ogilvie Thompson AJ in Ex parte L (also known as A)
1947 (3) SA 50 (C) at 59; the gist of this finding being referred to with approval by De Vos Hugo J
in M v M 1962 (2) SA 114 (GW) at 117 (G) - (H); Erasmus et 0/1983: par 49; Sinclair and Heaton
1996: 408 and Hahlo 1985: 115.
246
1962 (2) SA 114 (GW) at 117 (G) - (H). In this case the defendant had been married to the
plaintiffs mother, which marriage had been terminated by the death of the latter. The plaintiff
was born of a prior marriage, with the result that she was the defendant's step-daughter. While
still a minor, the plaintiff had been raped by and coerced into "marrying" the defendant, without
her knowing that the "marriage" was null and void. Four children were born of the "marriage."
The plaintiff approached the Court for an order that inter alia declared the children born of this
putative marriage to be legitimate and permitted the assets which she brought into the
"marriage" to be returned to her. Her claims were successful.
247
At 117 (G) - (H).
410
Before the application of these principles to the facts in Zulu is discussed, it is
important to point out a confusing aspect of the applicant's claim, which becomes
evident as a result of Hugo J's description thereof. In this regard it was stated
that the applicant alleged that she was "entitled to a one-half share of the
deceased's estate.'?" This description causes confusion as it is uncertain
whether the applicant was claiming that she was entitled to a half share of the
"joint estate" that allegedly existed between herself and the deceased, or whether
the applicant was in fact claiming a half share of the deceased estate which was
available for distribution after the proprietary consequences of the joint estate
between the deceased and his first wife had been dispensed with?" The Judge's
use of the possessive case with reference to the deceased estate ("deceased's
estate") seems to support the latter interpretation. Enquiries made for the
purposes of this study led to the conclusion that although Hugo J's wording
appears to indicate the contrary, the first interpretation must be accepted as
being the correct one.""
248 At 14 (F) - (G).
249 These two interpretations could have had a drastic effect on the amount claimed. For example,
if the first interpretation were true, this would imply that the applicant was effectively requesting
the Court to ignore the existence of the deceased's first marriage. If she succeeded in this claim,
she would have been entitled to a half share of the joint estate that existed between herself and
the deceased, with the result that the first wife would have received nothing. If, on the other
hand, the second interpretation were true, this would imply (as had been the case in M v M see
note 246) that the applicant in Zulu was not claiming an equal share of the joint estate (in M the
plaintiff had only claimed that which she had brought into the marriage-at 117 (G)), but that
she was in fact claiming a smaller amount than that to which she would have been entitled on
the basis of the first interpretation. To illustrate: Assuming that the entire joint estate between
the deceased and the first wife was valued at R 300 000, the second interpretation suggests that
she in fact claimed half of the deceased's share of the joint estate that existed between the
deceased and his legal wife (i.e. half of R 150000) or R 75 000. In any event, what does become
clear is that the applicant never considered the possibility of requesting the Court to order that
the entire joint estate in actual fact comprised the assets and liabilities contributed by all three
parties (i.e. those of the applicant, the first respondent and the deceased) and that this estate
could therefore be apportioned between the three of them (which, as will be seen in 2.4.3.4
below, is submitted may quite conceivably have been claimed).
250 This confusing aspect of the case was clarified by a telephonic enquiry to the first respondent's
attorneys (Ms Sarah Pugsley of Sarah Pugsley & Associates) on 15 April 2009, who confirmed that
the applicant had in fact averred that no estate whatsoever existed between the deceased and
his first wife with the result that she (the applicant) was entitled to a half-share of the "joint
estate" that existed by virtue of her "marriage" to the deceased.
411
Once clarified, this aspect highlights a fatal flaw in the applicant's case, in that
she was in fact claiming something which it is submitted even the widest
interpretation of the principles underlying the putative marriage doctrine and the
nature of community of property could never sanction, namely the negation of the
fact that the deceased was involved in a legitimate marriage with the first
respondent which had never been terminated prior to his death. Nevertheless,
as Hugo j did not express himself as to the fact that he was constrained by the
applicant's claim, it is submitted that it may be fair to disregard the applicant's
flawed pleadings for a moment and to evaluate the outcome of the case solely as
far as the law relating to putative marriages is concerned. What follows is a frank
assessment of the judgment on the basis of the underlying rationale behind the
principles regulating the matrimonium putativum.
As seen above, the putative marriage is based on the premise that the harsh
consequences of a void marriage should be avoided for the sake of the bona fide
"spouse." One of the ways in which this is achieved is by regulating the
patrimonial consequences of such a "marriage." Although existing case law on
this matter such as Ex parte L (also known as A) and Mograbi v Mograbi was
distinguished by Hugo j on the basis that neither case dealt with the situation
where a joint estate was already in existence, it is submitted that this fact alone
should not detract from this premise.": In fact, despite Hugo j's
acknowledgement of the bona fides of the appticant'" and of the deceased's
awareness that he was already married and that his second "marriage" was
unlawful/53 the approach adopted by the learned judge flies in the face of the
251 The argument that there is no need to deviate from the established consequences of the
putative marriage in the case of bigamy being committed seems to be supported by the fact that
an author such as Lee (1954: 40) devotes only two sentences to his discussion of this concept:
"Bigamy was a frequent source of putative marriages in the old law as it is today. It does not call
for any special comment in this place."
252 The test for the bona fides of an applicant in the position of the applicant is discussed in
2.4.3.3.2(c) below.
253 At 15 (A) and 16 (A) respectively. While the finding that the second "spouse" was bona fide
appears justified on the facts, it is submitted that the finding regarding the deceased's awareness
of the unlawfulness of that "marriage" is quite contentious in the light of the prevalence of
412
well-entrenched raison d'être of the putative marriage by in fact penalising the
innocent "spouse" for the actions of the party who was not only fully aware of the
fact that he was already married, but, moreover, according to the Judge was fully
aware of the unlawfulness of his second "rnarriaqe.'?"
While it appears to be true that there is no South African precedent that deals
with the fact of bigamy coupled with an existing joint estate.i" it is submitted that
this fact alone does not justify such a radical departure from (and indeed
negation of) established legal principles. The putative marriage exists as a
"common-law qualification" to the general rule that a void marriage has no legal
consequences?" As such, it forms part of the body of common law which, in
terms of the Constitution, the Constitutional Court, the Supreme Court of Appeal
and all High Courts have the inherent power to develop, "taking into account the
interests of justice" and in such a way as to "promote the spirit, purport and
polygyny in South Africa and the uncertainty that the recognition of and interrelationship
between civil and customary marriages creates-see the note that follows.
254 That such a situation cannot be countenanced is underscored by Jansen (2003: 128): "ln a
country where polygamy prevails, the courts and the legislator should consider the different
views and not simply declare the second marriage (whether civil or customary) a nullity,
otherwise 'women will be punished for the transgressions of their husbands who may not be
aware of the legal consequences of their actions, or who may disagree with the conceptual legal
and theoretical separation between these types of marriage'." The latter quote is taken from
Bonthuys and Pieterse 2000: 624.
255 Lee (1954: 41) does refer to a case that is reported by Boel and Loenius in their Oecisien en
Observationes where an Englishman by the name of Joris Stevensz (referred to as "Stevenszoon"
by Gane J in Potgieter v Bellingan 1940 EDL 264 at 268) had entered into a second marriage
believing his first wife to have died while he was living abroad in Holland. When his first wife
appeared in Amsterdam a few years later, he was ordered to return to her and the estate
between himself and his second wife was divided between them, and he was ordered to pay an
annual amount towards the support of the children born from the second "marriage." The major
relevance of this case does not however appear to be the order dividing the joint estate, but
rather the fact that the children were later declared to be legitimate after the man had
petitioned the States of Holland and West Friesland to declare this fact, and the latter had done
so after seeking the advice of the Court of Holland (see Van der Keessel (translated by Lorenz)
Theses 64 and 65). Although this case is distinguishable from the situation in Zulu on the basis of
the husband's knowledge of the prior marriage in the latter case, it does provide some indication
that the second "wife" in such a case should at least be entitled to a share of the joint estate.
Whether this can be done at the expense of the first wife is however debatable, and it is
submitted that a more equitable distribution will be required in modern law. This aspect is
discussed in detail below.
256 Cronjé and Heaton 2004: 42. This concept originated in Canon law, and was later adopted by the
law of Holland-see Moola v Aulsebrook 1983 (1) SA687 (N) at 690 (F) - (G) and Lee 1954: 40.
413
objects of the Bill of Rights."257Leaving a bona fide person in the position of the
applicant with nothing at all after years of being involved in a "joint estate" to
which she contributed both directly and indirectly surely does not square with
these principles. This point is driven home even further when it considered that
although Hugo J pointed out that the applicant would have had a claim for
damages against the deceased estate on the basis of being induced to enter into
an invalid marriage, an analysis of the relevant case law reveals that such claims
have thus far only been granted for non-patrimonial loss by way of the institution
of the actio iniuriarum for iniuria and contumelie?" In any event, it is suggested
that it is unfair to expect a person in the position of the applicant in Zulu to
comply with the onerous requirement of proving delictual liability while she
already has the putative marriage on the basis of which to receive some form of
recognition of her "marriage."
As seen above, the only barrier to the application of the aforegoing principles
was the fact that the applicant's pleadings were not legally sound. Unfortunately,
Hugo J failed to point this out. Consequently one can only speculate on the
extent (if any) to which the learned Judge would have deviated from his general
reasoning if the pleadings had in fact been framed correctly.
2.4.2.2 Conclusion
The Zulu case tells a tale of two errors; the first created by the applicant's
pleadings leading inexorably to the second by the Judge, culminating in an
unsatisfactory legal position. It is therefore submitted that the applicant should
have requested the Court to develop the common law; a situation which would
have placed Hugo J in a better position to have provided guidance as to how the
257
Section 173 read with section 39(2) of the Constitution, 1996.
258
See Snyman v Snyman 1984 (4) SA 262 (W) and Arendse v Roode 1989 (1) SA 763 (C). In the latter
case, an amount of damages was also awarded on the basis of seduction, but, as was pointed out
by Hodes Al, a claim for seduction is an action sui generis (at 765 (H)). The remedial scope of this
type of claim may possibly not even extend to all personality rights-see Claasen 1987: 61 who
opines that it is questionable whether an infringement of fama takes place in such a case.
414
principles governing the putative marriage might have been applied to this de
novo situation; a situation which, it is submitted, is becoming increasingly
relevant in view of the pluralistic nature of South African society and the
confusion and uncertainty that often accompanies the interrelationship between
and diverging consequences of customary and civil marriaqes.?" which,
furthermore, will undoubtedly require the development of the common law in
future."? The question now arises as to how the common law may have been
developed. This aspect will now be considered along with any any other
alternative solutions to the problems posed by the Zulu case.
2.4.3 Developing the common law: A hypothetical approach towards
solving future problems in cases similar to Zulu
2.4.3.1 Introduction
The approach towards developing the common law was recently set out by
Heher JA in Linvestment CC v Hammersley and Another?"
The power [to develop the common law] is confirmed in s 173 of the Constitution
'taking into account the interests of justice'. Thus, without abandoning our legal
heritage, the courts can and should examine how developed legal systems cope with
common problems. By appropriate application of the knowledge thus derived, a
modification of our existing law may better serve the interests of justice when the
existing law is uncertain or does not adequately serve modern demands on it.262
259
See for example Jansen 2003: 120 et seq. This explains why Hugo J's finding that the deceased
was aware of the fact that his second marriage was unlawful (at 16(A) - (B)) is contentious as, in
the absence of specific proof to the contrary, the reality is that many South Africans are unaware
of the distinction that the law makes between civil and customary marriages as far as polygyny is
concerned.
260
Although this issue was not raised in the Zulu case, it is a fact that in a country where polygyny
prevails many African couples are unaware of the differences between customary and civil
marriages and of the fact that a civil marriage may only be monogamous-see Jansen 2003: 128;
Bonthuys and Pieterse 2000: 624.
261 2008 (3) SA 283 (SeA) at par [25].
262 Emphasis added.
415
From the dearth of South African authority on this issue, it becomes clear that in
a situation such as the one in Zulu, the "existing law is [indeed] uncertain." In
addition, it is clear that the demands posed by a multicultural society in which the
co-existence of and differentiation between civil and customary marriages is
often problematic, demands a re-evaluation of the common law position. In this
regard, it is submitted that valuable guidance is provided by the approaches in
American and French law.
2.4.3.2 A summary of comparative law
As a point of departure, it must be agreed with Blakesley263that it is particularly
useful from a comparative viewpoint to analyse the legal position in the United
States (particularly the States of Texas, Louisiana and California) as they
"provide a laboratory for study of the confluence of civil and common law."
While the various States apportion property in different ways, there is no doubt
about the fact that, regardless of the method of apportionment, the bona fide
party "has a right to some portion of the property accumulated during the
relationship.,,264 In California, property is divided in the same way as in a valid
marriage, and where the claims of a putative and a legal spouse compete after
the death of the common spouse, the former is entitled to "at least one-half of the
quasi-marital property", regardless of whether he or she died testate or
intestate.265
In Illinois and in other States that have enacted section 209 of the Uniform
Marriage and Divorce Act of 1973, the rights of neither spouse trump the other,
and the property is apportioned "as appropriate in the circumstances and in the
263 1985: 32.
264
Blakesley 1985: 31.
265
Raye and Pierson 2009: § 20: 109.
416
interests of justice ...",266 while in Texas equity is the decisive criterion on divorce,
but not on death.
French law allocates one-half of the entire estate to the deceased common
spouse's estate; entitles only the legal wife to her share of the first community as
it existed prior to the putative marriage; and splits the remaining putative estate
between the legal and putative spouses (so that they each receive one-half of the
latter estate). In Louisiana, the same position as in France generally applies,
with the only difference being that a distinction is drawn between the mala fide
and the bona fide spouses.
Finally, States such as Texas, Illinois and Delaware apply the eo-called
"acceptance-of-the-benefits" doctrine to prevent the legal spouse from accepting
the benefits of a separation and later challenging the disadvantages thereof.267
266
Section 305 of the Illinois Marriage and Dissolution of Marriage Act (750ILCS5/); Central States v
Gray 2003 WL 22339272 (N.O.III.) at 4.
267
This doctrine was neatly described in a decision of the Supreme Court of Delaware (Smith v Smith
893 A.2d 934; 2006 Del. LEXIS113) as follows: "No rule is better settled than that a litigant who
accepts the benefits or any substantial part of the benefits of a judgment or decree is thereby
estopped from reviewing and escaping from its burdens. [The litigant) cannot avail [herself) of its
advantages, and then question its disadvantages in a higher court.'" Accordingly, it is well-
settled law that an appellant who accepts the benefits of a judgment cannot pursue an appeal
that may invalidate the rights to those benefits if successful" (at 937).
417
Figure 6.1: COMPARATIVE ANALYSIS: The patrimonial consequences of "marriages"
involving competing claims between a legal spouse and a putative spouse
Facts: Assume that A entered into a civil marriage in community of property with B (the legal spouse) in 2000.
Five years later (in 200s), he married C (the putative spouse) while his marriage to B still subsisted. At the
time of entering into the second marriage in 2005 the value of the joint estate between A and B was worth
R 200 000. The second "marriage" was also a civil "marriage" in community of property. When A died in
2009, the value of the joint estate (consisting of the legal marriage as well as the putative marriage), was
worth R500 000. If both Band C lay claim to the estate, the various legal positions will be the following:
California: C receives R 75 000.
If A dies intestate: Louisiana:
C has a right to at least one-half of the
If A was bona fide, the same position as in French
"quasi-marital property", i.e.y, (R 300
law applies.
ODD).
If A was mala fide, he (or his heirs) forfeit(s} the
Evidence presented will determine
right to share in the putative community, and this is
whether remainder is separate property
divided between Band C on an equal basis.
of A or part of community property with
B. Intestate succession laws apply.
If A dies testate:
Under community property law B is entitled to one
C has a right to one-half of the "quasi-
half of the estate between herself and A (i.e. RIOD
marital property", i.e.y, (R 300 ODD).
ODD), while the other half is distributed between
If remaining property is community
the heirs of A and B. C is entitled to one half of the
property (between A and B), A may
putative estate (i.e. R 150 ODD),while the other half
dispose freely of one-half thereof; B gets
is shared between B and the heirs of A and C. If A
the other half.
dies intestate leaving no children, B will be awarded
A may dispose freely of any property
the entire legal estate, while she and C will each be
classed as his separate property.
awarded half of the putative estate.
States': that have' ~énacted, section 209: of the
, Y. Y~!~j~l';.:~'::~~;~ ~f~~c;~ y~~ wi~~ ,~< ~~~~. >;';-êo>~,~
A's estate is entitled to one-half of entire uni/or~:Marriag~. ~~~Oivorc~ Act:
community, i.e. li, (R 500 ODD).
Rights of one spouse do not supersede the other
B is entitled to half of property existing before
and property is apportioned "as appropriate in the
putative marriage (i.e. li, of R 200 ODD).
circumstances and in the interests a/justice."
Band C share the remaining putative estate (R 150
ODD)equally.
Only community between deceased and first wife
Therefore:
recognised. Putative spouse must rely on a claim
A's estate receives R 250000.
for damages.
B receives R 175000 (i.e. RIOOODD + R 75
ODD).
418
2.4.3.3 Conclusions based on comparative analysis
Bearing the comparative analysis in Figure 6.1 in mind, it is immediately apparent
that the South African position as created in the Zulu case is out of kilter with the
position in the jurisdictions in America and in France. Due to the fact that certain
facets of the approaches in these jurisdictions may be comparable with South
African law, it is submitted that the correct approach is to adopt a combination of
these approaches that accords with the fundamental principles of the South
African marriage in community of property, but nevertheless permits the Court to
exercise its discretion in order to "fine-tune" the end result where it is just and
equitable to do so.
2.4.3.3.1 General principle
It is submitted that the approaches in California, Texas, Louisiana and France
can be supported to the extent that they base the apportionment on the "legal"
and "putative" estates. Although such a physical differentiation would run
counter to the South African concept of community of property (as our law
determines that there is in reality only one joint estate), it is submitted that a
theoretical differentiation between the legal and putative estates is nevertheless
required in order to facilitate a distribution that is aligned with the fundamental
notion that the joint estate consists of all pre- and post-marital assets and
liabilities of each spouse, of which they become eo-owners of undivided equal
shares.
Therefore, while the approach in these jurisdictions is supported in principle, it is
submitted that a slight deviation is required in order to give effect to the fact that
South African law recognises one continuous community. Therefore South
African law will (i) regard all three "spouses" as equal owners of the putative
estate, and (ii) recognise the fact that the putative spouse also has a right to
share in the deceased common spouse's share of the joint estate as it existed
419
between himself and the legal spouse at the date of entering into the putative
marriage.
Viewed in this way, a Court would not be asked to sanction a transfer of the
common spouse's undivided half-share of the community of property that existed
between himself and his first wife to the applicant, but instead would have viewed
the putative spouse as becoming a party to the existing joint estate.
However, it is submitted that the strict application of these principles is not
desirable, as a multitude of scenarios could arise within the context of putative
marriages. For example, the legal spouse may have entered into a second
marriage herself, or may have been mala fide. For this reason it is suggested
that valuable guidance can be obtained from the States that have enacted
section 209 of the Uniform Marriage and Divorce Act of 1973 and which therefore
permit their Courts to exercise a broad discretion. It is therefore submitted that
the South African Courts should be permitted to deviate from a strict application
of the general principle outlined above where it would be just and equitable to do
so, taking into account any relevant factors.
The next question that arises is to determine whether or not other factors that
play a role in the jurisdictions analysed could also have a role to play in South
Africa.
2.4.3.3.2 Additional factors
(a) The "acceptance-of-the-benefits" doctrine
Under this doctrine, which is based on estoppel, a litigant is precluded from
challenging the validity of a judgment in a higher Court when that litigant has
voluntarily accepted a substantial portion of the benefits occasioned by the
420
judgment of the lower Court.268 Various American Courts have held that this
doctrine (a form of the broader rule of estoppel) may be applicable within the
context of family law cases, as it is based "upon the public policy of protecting the
marital status and good character of innocent third persons ... ,,269In this manner,
the Courts have, for example, estopped a person from challenging the
correctness of the original divorce order where he had accepted all of the
benefits (in the form of property) thereof.27o In the State of Illinois, the Court
recently held that this principle could also apply to estop a person who had
"remarried" after never being formally divorced from later alleging that she was
her first husband's surviving spouse.i"
The question arises as to whether this doctrine may find application in a South
African context. In this instance the following must be noted:
The notion that underpins the application of the doctrine in the United
States-namely that it "is founded upon the public policy of protecting the
marital status and good character of innocent third persons"-may accord
with South African law. This is illustrated by the fact that in our law, public
policy is "now rooted in the Constitution and the fundamental values it
enshrines, thus establishing an objective normative value system,,272and
that the Constitutional Court has confirmed that marriage is a social
268 See for example Friedman 1993: 742; Smith v Smith 893 A.2d 934; 2006 Del. LEXIS 113 at 8;
Central States v Gray 2003 WL 22339272 (N.O.III.) at 3 and 4.
269 Forest v Forest 9 IILApp.3d 111, 291 N.E.2d 880 at 114; Central States v Gray 2003 WL 22339272
(N.O.III.) at 4.
270 Goodmon v Goodman 125 IILApp.2d 190, 260 N.E.2d 257. In this case the defendant had
obtained a divorce decree in 1965 and had received substantial property in terms of the divorce
agreement. He was subsequently on two occasions found guilty of willful contempt for failing to
make child support payments. In 1968 he petitioned for leave to vacate the 1965 decree of
divorce (at 259). The Court (per Justice Moran) found that he had accepted the benefits of the
divorce decree and was therefore estopped from challenging the validity thereof (at 260).
271 Central States v Gray 2003 WL 22339272 (N.O.III.) at 3 (referring to the decision of the Texas
Court of Appeals in Hawkins v Hawkins 999 S.W.2d 171, 178 (Tex.App.1999) and at 4.
272 Minister of Education v Syfrets Trust Ltd 2006 (4) SA 205 (C) at par [24]. Also see Brisley v Drotsky
2002 (4) SA 1 (SCA) at par [91].
421
institution of "intense private significance" for the parties themselves which
is also of considerable "public significance.,,273
• A number of problems however present themselves when the application
of estoppel is considered in the context of South African family law:
(i) To begin with, this aspect has received very little attention from our
Courts, and the only instance in which estoppel has been applied to
a family law situation is where nullity (as opposed to validity) of a
marriage has been asserted. In this regard there is authority for the
view (Pretorius v Pretorius)274 that a spouse who was a minor at the
time of entering into a marriage without the requisite parental
consent (a ground which at the time implied nullity), but who had
continued to live with her husband after attaining majority, could be
estopped from asserting that the marriage was void.275
Sonn~kus276however opines that the case did not involve estoppel
by representation (which was also never pleaded) and that it was
instead decided on the ground of public policy.
(ii) Point (i) therefore illustrates that while estoppel has been applied in
order to prevent a person from asserting the nullity of a marriage,
there is as yet no authority for the position (as there is in the United
States) where a person has attempted to assert the validity of the
marriage.
273
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of
Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA
936 (CC)at par [31].
274
1948 (4) SA 144 (0).
275
Pretorius v Pretorius 1948 (4) SA 144 (0); Sinclair and Heaton 1996: 399; Sonnekus 2000: 184,
185.
276
2000: 108, 109 and 185.
422
(iii) Thirdly, it must be agreed with Sinclair and Heaton277that estoppel
is unnecessary as a defence to annulment, as no formal act of
annulment is required when a marriage is already null and void ab
initio.
(iv) Fourthly, and most significantly, it is an accepted principle of South
African law that "estoppel cannot remedy a fundamental error as to
status or legal capacity."278 This immediately militates against the
application of estoppel in the context of marriage which, by
definition, is status-defining. Therefore, until Sonnekus's viewpoint
is confirmed that the Pretorius case was decided on the basis of
public policy considerations, it appears that the application of
estoppel in a family law context should be viewed with some
circumspection.
• Finally, it appears as if the acceptance of the benefits doctrine is only
applied in the United States to prevent an attack on a 'judgment or
decree" that has been issued by a Court of law.279 The doctrine will
therefore not find application where one party has "remarried" after she
had merely separated from her first husband and as a result believed her
first marriage to have been dissolved-some Court process pertaining to
the first marriage is required. In this regard another fundamental
difference between South African and American law presents itself in that
most American States permit "judicial (or legal) separation" as an
alternative to divorce.28o In terms of this approach, property is distributed
and the parties live apart although they remain legally married to one
277 1996: 400.
278 Sonnekus 2000: 182.
279 Smith v Smith 893 A.2d 934; 2006 Del. LEXIS113 at 7 (emphasis added).
280
According to http://www.womansdivorce.com/separation.html(accessed on 6 May 2009) the
only States that do not recognise legal separation are Delaware, Florida, Georgia, Mississippi,
Pennsylvania, and Texas. Judicial separation was abolished in South African law by section 14 of
the Divorce Act 70 of 1979.
423
another.281 Therefore, while it is true that the Court in Central States v
Gray applied the "acceptance-of-the-benefits" doctrine to a person who
had "remarried" without having been validly divorced, the couple had
indeed received a Court order for judicial separation, which, when
challenged by her, meant that the doctrine could find application as she
had accepted the benefits of the separation order.
• In the light of the above, three conclusions can be reached:
(i) As South African law does not recognise any form of judicial
separation, it follows that a married couple has no "in-between"
status, but remain married until divorced by a Court of law. The
"acceptance-of-the-benefits" doctrine therefore cannot be applied in
order to prevent the first (legal) spouse who has "remarried" without
being legally divorced from the deceased common spouse from
asserting that she is still his surviving spouse.
(ii) However, while the doctrine itself could not find application due to
the fact that there was no Court order, there is no reason why the
fact that a legal spouse has "remarried" while still being validly
married to his or her first spouse cannot be taken into account as a
relevant factor in order for the Court to apportion the deceased
estate in a manner that is "just and equitable."
(iii) There is some merit in contending that the doctrine may have a role
to play where an invalid divorce order was obtained as a result of
which one of the spouses accepted benefits and thereafter
"remarried.,,282 However, it may be agreed with Kahn283that the
281 Hahlo 1975: 329: "Judicial separation-'separatio a mensa et thora', 'separatie van tafel, bed en
bijwoning' -is a half-way house between marriage and divorce. It does not dissolve the marriage
tie but puts, for the time being, and end to the personal consequences of marriage by
suspending the reciprocal duty of the spouses to live together."
282 The following set of facts (based on Kahn 1975: 671) illustrates this scenario: A and B entered
into a civil marriage in 1991. While on holiday in a foreign jurisdiction in 1999, A "divorced" B
and entered into a marriage with C. The divorce was invalid according to South African law, but
none of the parties were aware of this. B received (and accepted) property as well as
424
fact that status is involved once again militates against allowing
such a doctrine to view the spouse as being unmarried.
Nevertheless, it is submitted that any benefits accepted by that
spouse as a consequence of the "divorce" should be taken into
account for the purposes of apportioning the estate in a just and
equitable manner.284
The conclusion therefore is that the "acceptance-of-the-benefits" doctrine can at
best be applied for the purposes of ensuring a just and equitable distribution.
(b) What role (if any) should mala fides play?
The California Courts have held that mala fides on the part of one of the
"spouses" to the putative marriage will not affect the rights of the bona fide
"spouse" as he or she is in any event entitled to one half of the quasi-marital
property.285 Whether the same holds true for South African law will, as seen
below, depend on the facts of the case. This is because the approach that is
suggested for South Africa does not automatically entitle the putative spouse to
one half of the putative community, but in fact entitles both the legal and the
putative spouses to share in each other's estates. It is therefore suggested that
mala fides may have a role to play where the bona fide putative spouse receives
maintenance from A until she married 0 in 2002. When A died in 2008, B laid claim to his estate
on the basis that she was still validly married to him in terms of South African law. In such an
instance a South African Court may well be tempted to apply the "acceptance-of-the-benefits"
doctrine in order to prevent B's challenge to the validity of the divorce action and so as to
protect C. However, it is submitted that Khan (1975: 672) correctly opines that although such a
rule (which he describes as a rule "akin to estoppel") may have some role to play-particularly in
respect of persons "in privity with the person 'estopped'" -it cannot and should not play a role in
instances (such as the one described above) where status is involved. It is consequently
submitted that, unless fraudulent action was involved, a person in the position of B should still be
regarded as A's lawful spouse, but that her "remarriage" and the benefits already received from
A should be taken into account in apportioning the deceased estate.
283 1975:672.
284
See note 282 in which such a scenario is sketched.
285
Raye and Pierson 2009: § 20: 105.
425
less than she would have if her marriage had been valid. This will become clear
in the paragraphs that follow.
(c) Further guidance: How to assess the bona fides of a "spouse" to a
putative marriage
The South African Courts have not addressed the bona fides requirement as far
as putative marriages are concerned in any great detail. Although it is clear from
the case of Ngubane v Ngubane286 that good faith is a question of fact, the
formulation of a "test" for the same has not yet been required. Some guidance in
this regard is however provided by the Court in Potgieter v Bellingan287 where
Gane j referred to a case reported by Loenius in which "a genuine and effective
deception" was required in order for the Court to find a marriage to be putative. It
is submitted that the finding in Zulu provides a foundation from which to attempt
to provide guidance in this respect. As will be recalled from the synopsis of the
facts above, the applicant in Zulu was not totally oblivious to the possibility that
she was involved in a bigamous union:
Where one or both parties in good faith are ignorant of the fact that their marriage is in
fact invalid, but they believe it to be valid, then the marriage is at most a supposed or
putative marriage. But in law the term 'putative marriage' is not merely one which a
supposed marriage partner believes to be valid, but one which the law itself
characterises as such and then attaches to it certain legal consequences ... According to
the applicant, during the subsistence of her marriage, she heard rumours of the
deceased being married. When she had confronted him with the rumours he denied
them and she accepted that fact. She was, however, aware that the deceased had
children from the other woman. She denies the first respondent's allegation that she
was aware of his prior marriage and submits that this fact was discovered after the
demise of the deceased. From the evidence before the court I am satisfied that the
applicant was unaware of the deceased's prior marriage at the time of her marriage and
286 1983 (2) SA 770 (T) at 772 (C) - (E).
287 1940 EDL264.
426
by entering into her marriage with the deceased she acted in good faith. The question is
then whether the applicant's marriage to the deceased was therefore a putative
marria. ge, wh'ICh came. d W.ith .It propne. t ary consequences. 288
While there was no doubt that the applicant had been bona fide when she
entered into the "marriage" in 1985, Hugo J did not comment on whether or not
the fact that the she had been alerted to the possibility of her being party to a
bigamous union affected the potential putative status of the second "marriage."
Case law in the United States provides valuable assistance in this regard. For
instance, in Garduno v Garduno,289 the Court held that in Texas the good faith
requirement was a question of fact, which, drawing on Louisiana precedent,
would "not be vitiated by 'unconfirmed rumours or mere suspicions.'" However
when reliable knowledge of an impediment does come to the party, however, he cannot
simply declare his disbelief of this information and continue as if it were untrue, but is
then under a duty to investigate further: "a party alleging good faith can not close her
eyes to information or her ears to suspicious circumstances. She must not act blindly or
without reasonable precaution.u290
In the State of California, the standard for assessing the good faith of a party who
asserts a putative marriage is an objective one which must be satisfied by "facts
that would cause a reasonable person to harbor a good faith belief in the
existence of a lawful ... marriage." 291
288 At 14 (H) -15 (B), emphasis added.
289 760 5.W.2d 735 (Tex.App.1988).
290
At 740 (emphasis added). The Court quoted from the Louisiana decision of Succession of Chavis
211 La. 313, 29 50.2D 860 (1947) at 863.
291
In re Marriage of Vryonis (1988) 202 Cal.App.3d 712, 718; recently confirmed in 2008 in the case
of Ellis v Arriaga 162 cal.App.a" 1000; 76 Cal.Rptr.3d 401 at 404.
427
Applying these principles to the facts in Zulu makes for interesting speculation.
To begin with, the applicant conceded that she had heard rumours regarding her
husband's marital status. On the approaches in Texas and Louisiana, mere
rumours would not be sufficient to abrogate her good faith. However, the facts
indicate that she had not only heard rumours, but that she was in fact aware that
her husband had children with the first respondent. Yet, she apparently accepted
her husband's denial without question. In addition, the first respondent contested
the applicant's ignorance of the true state of affairs. Taken together, these
factors all indicate that good faith on behalf of the applicant was by no means an
incontrovertible fact and that it may well have been argued that she was in fact
"clos[ing] her eyes to information or her ears to suspicious circumstances" that
should-objectively speaking-have moved her towards further investigation.
On this basis a Court may have concluded that the marriage ceased to be
putative before the deceased's death. Moreover, depending on whether it was
acquired before or after the truth came to light, such a finding could imply that
she had no entitlement to the disputed property.
2.4.3.4 A suggested solution
2.4.3.4.1 Developing the common law
For the sake of convenience, the example used in the comparative analysis
(Figure 6.1) will be repeated in order to illustrate the proposed development of
the common law:
Assume that A entered into a civil marriage in community of property with B (the legal
spouse) in 2000. Five years later (in 2005), he married C (the putative spouse) while his
marriage to B still subsisted. At the time of entering into the second marriage in 2005,
the value of the joint estate between A and B was worth R 200 000. The second
"marriage" was also a civil "marriage" in community of property. When A died in 2009,
428
the value of the joint estate (consisting of the legal marriage as well as the putative
marriage), was worth R500 000 ...
Should both B (the "legal spouse") and C (the "putative spouse") wish to lay claim
to the property, the following solution that draws from and adapts the position in
the jurisdictions considered, is suggested:
(i) The starting point would be for the Court to proceed from the well-
established principle underlying the putative marriage, namely that it exists
so as to avoid the harsh consequences of nullity.
(ii) The second principle would be for the Court to ascertain whether the
deceased's marriage to his first wife had legally been terminated at any
time. (In this regard it is noteworthy that South African law presumes that
in the case of two consecutive marriages both are legal, with the result
that the first is deemed to have been properly dissolved before the second
was contracted. )292
(iii) Bearing in mind the fact that both "marriages" were concluded in
community of property, a Court would thirdly need to ascertain which of
the spouses were bona fide.
(iv) Once this has been established, the Court would have to determine
whether it would be to the putative spouse's advantage to regard the
marriage as being in community of property.
(v) Even if it would be to C's advantage to recognise community of property
between her and A, case law indicates that the Courts are not bound to
order the strict application of this regime but may award a lesser amount
to the bona fide "spouse" in accordance with the relief sought in the
pleadings.293
292 Hahlo 1985: 88.
293
See M v M 1962 (2) SA 114 (GW) at 117 (G) - (H). This case is briefly discussed in note 246
above.
429
(vi) It must be remembered that B is entitled to her share of the community as
it existed at the time of A entering into the putative marriage. C has no
claim to any of this property.
(vii) A also has a claim to one-half of the community between himself and B as
it existed at the time of his entering into the putative marriage.
(viii) However, as soon as the putative marriage was entered into with C, C
became entitled to one-half of A 's half of this estate as they were married
in community of property.
(ix) As the community of property between A and B was never terminated, B is
also a party to the putative estate (of which A and C are also entitled to
equal shares). Therefore, A, Band C all have equal rights to the putative
estate.
(x) As these are all "equal claims on the same object",294 they must be
reduced proportionately, with the result that A, Band C are each entitled
to one third of the putative estate.
(xi) Finally, the Court is permitted to deviate from a strict application of these
principles if it should deem this to be just and equitable, taking into
account all factors relevant to the situation_295These factors may include:
The mala fides of any party; and
The extent of the contributions of the respective parties; and
The extent to which any party has accepted benefits as a result of
the termination or purported termination of a union.
With these principles in mind, it is submitted that the Court could allocate the
property as follows:
294
Henderson 1941: 68.
295
This approach is in line with the approach required by clause 22(2) the Domestic Partnerships Bill,
2008 for a Court to apportion the assets of a registered domestic partnership in the event of a
dispute: "Upon an application for the division of joint property, a court must order the division of
that property which it regards just and equitable with due regard to all relevant factors." (Also
see clause 32 of the Bill which contains a similar provision in the case of unregistered domestic
partnerships.)
430
1) Where both A and C were bona fide, or where only C was bona fide and it
would be in the interest of C to regard her marriage as in community of
property:
Formula:
B is entitled to: ~ (estate A + 8) + lj (estate A + 8 + C)
C is entitled to: ~ (estate A + 8)296 + lj (estate A + 8 + C)
A's estate is entitled to: ~ (estate A + 8)297 + lj (estate A + 8 + C)
Therefore:
B is entitled to: ~ (R 200 000) + lj (R 300 000)
= R 100000 + R 100000
= R 200 000
C is entitled to: ~ (R 200 000) + lj (R 300 000)
= R 50 000 + R 100 000
= R 150000
A's estate is entitled to: ~ (R 200 000) + lj (R 300 000)
= R 50 000 + R 100 000
= R 150000.
2) In the example above, it so happens that the amount which C receives (R
150 000) is equal to that which she would have received if her marriage to
A (which was in community of property) had been valid (i.e. R 300 000 -ê-
2). It may however happen that this is not the case. For example,
assume that the estate between A and 8 in 2005 had remained worth R
296
As one-half of A's half of this estate.
297
As one-half of A's half of this estate.
431
200 ODD,but that the entire estate at A's death had instead been worth R
600 000. This would imply that the putative estate was now worth R 400
000. If the marriage between A and C had been valid, she would have
been entitled to R 200 000 (i.e. R 400 000 -i- 2). However, if the formula
used above is applied, she will end up receiving less than this:
B would be entitled to: li (R 200 000) + YJ (R 400000)
= R 100 000 + R 133 333
= R 233 333
C would be entitled to: % (R 200 000) + YJ (R 400000)
= R 50 000 + R 133 333
= R 183333
A's estate would be entitled to: % (R 200 000) + YJ (R 400000)
= R 50 000 + R 133 333
= R 183333
C would therefore receive R 16 667298 less than the R 200 000 which she
would have been entitled to if her marriage to A had been valid. If both
she and A were bona fide, it is submitted that this would not be a problem.
However, if A was mala fide, it is suggested that the Court could, by virtue
of its discretion as to what was just and equitable, order that his estate
should forfeit an amount equal to C's shortfall in order to make up the full
amount to which she would otherwise have been entitled. Therefore:
A's estate would be entitled to R 183 333 - R 16 667 = R 166 666, and C
would receive her full R 200 000.
298
(R 200 000 less R 183 333).
432
3) If C was bona fide, and it would not be in her interest to view her
"marriage" to A as being in community of property (for example where she
brought far more into the marriage than A), the "marriage" would simply be
regarded as being out of community of property. The joint estate between
A and B would be split between them as if no community of property
existed.
4) Where B had benefitted from her separation from A (for example had
"remarried"), the Court could apply a form of the "acceptance-of-the-
benefits" doctrine in order to prevent her from being entitled to the full
benefit described above in accordance with its prerogative to order a just
and equitable division.
If these principles were to be applied to Zulu, it is submitted that the applicant
should instead have requested the Court to exercise its inherent power to
develop the common law in the manner described above, taking into account all
relevant factors of the situation.299 Unfortunately, the facts reported in Zulu do
not permit an extensive illustration as to how the solution described above may
have been applied in that case. However, it is submitted that the formula
described above could have been applied to begin with, after which the Court
may have been guided by the following factors in exercising its discretion:
• That bona fides on behalf of both spouses appears to have been
assumed; and
• That Mr Zulu appears to have been mala fide in the sense that he knew
that his second "marriage" was null and void.
This approach would have ensured that the second "Mrs Zulu" was not left out in
the cold.
299 See note 295.
433
2.4.3.4.2 An alternative to developing the common law: The principles of
South African matrimonial property law
As an alternative to developing the common law, it is worth considering whether
the principles of South African matrimonial property law may have provided a
solution to the problem encountered by the second "Mrs Zulu." As a point of
departure it is useful to consider the South African Law Reform Commission's
analysis of this type problem, which is based on a decision of the Supreme Court
of California in Marvin v Marvin300 (which was briefly mentioned in the summary
of Californian law in 2.4.1.1.1 above) and an article published by Singh in
1996.301 It is of cardinal importance to note that the South African Law Reform
Commission and Singh's observations were made in the context of life partners
and not putative spouses. This notwithstanding, the analysis that follows will
show that it makes no difference whether the applicant was a second civil
"spouse" or a life partner of someone already married: The conclusion would be
the same in either case.
In the Marvin case a man (defendant) and a woman (plaintiff) cohabited as from
October 1964 until May 1970.302 The plaintiff alleged that they entered into an
oral agreement as from the beginning of their cohabitation to the effect that "they
would combine their efforts and earnings and would share equally any and all
property accumulated as a result of their efforts whether individual or
combined.,,303 At the time of entering this agreement, the defendant was still
lawfully married to his wife (8); a marriage that was only terminated in January
1967. After the relationship was terminated by the defendant asking her to leave
the common residence, the plaintiff applied for declaratory relief regarding her
proprietary and contractual rights, as well as for the Court to impose a
300
(1976) 18 Cal. 3d 660.
301
See Singh 1996: 317 et seq.
302
As a matter of interest, the male cohabitant in question was the celebrated American actor Lee
Marvin (1924 - 1987), famous for his roles in films such as Cat Bal/ou (1965, eo-starring Jane
Fonda); The Dirty Dozen (1967) and Shout at the Devil (1976, alongside Sir Roger Moore).
303
At 666.
434
constructive trust on her half of the property''" The defendant attempted to
defend these assertions on the basis that the contract entered into in 1964 could
not be enforced as doing so would amount to a violation of public policy as it was
based on the "immoral" relationship between himself and the plaintiff.305 The
Court refused to entertain this assertion, pointing out that the case law upon
which the defendant relied indicated that a contractual undertaking between
unmarried partners was "unenforceable only to the extent that it explicitly rests
upon the immoral and illicit consideration of meretricious sexual services.,,306
Provided that this boundary was not overstepped, unmarried intimate cohabitants
could regulate the proprietary consequences of their relationship as they saw fit,
and these agreements could be enforced by the Courts without falling foul of
public policy.307
The defendant's second contention-namely that the contract violated public
policy as it infringed upon his legal wife's interest in the community of property-
also had to fail as an "improper" attempt to transfer a share of the joint estate
was not null and void but simply voidable at the instance of the wronged
spouse.P"
The South African Law Reform Commission concluded that Singh was correct in
asserting that the Court's reasoning in Marvin-to the effect that that an improper
transfer of community of property was merely voidable-would be equally
acceptable in South African law as the provisions of section 15 of the Matrimonial
Property Act of 1984 "are similar in effect.,,309 In the light hereof, the Commission
concluded that a community of property could in fact be created between a
304 At 666.
305 At 668.
306 At 669.
307 At 674.
308 At 672.
309 SALRC2006: 121, italics added.
435
married man and a life partner which would have "no effect" on the joint estate
which existed between himself and his legal spouse."?
It is submitted that this conclusion is problematic for a number of reasons. First,
there is no clarity in South African law as to whether or not non-compliance with
the requirements of section 15 of the Matrimonial Property Act leads to invalidity
or mere voidability.311 The only authority to which the Commission refers in
support of the latter conclusion is a statement made in these terms by Singh in
1996, which is not entirely convincing as she provides no authority in support of
her contention that non-compliance with section 15 results in voidability.
Furthermore, subsequent case law does not appear to support Singh's assertion.
To begin with, a number of cases have held that the consent requirements
prescribed by section 15 are peremptory,312and it is generally accepted that non-
compliance with any peremptory statutory provision implies invalidity.313
Secondly, the provisions of section 15(2) and (3) are capacity-defining in that
they deal with a spouse's capacity to perform a juristic act. In view of these two
considerations it appears that non-compliance with the consent requirement
implies that such an agreement is void.314
310 SALRC2006: 121.
311 For example, Christie (2006: 229) contends that a contract concluded without the consent
prescribed by section 15(2) is "unenforceable" while Van der Vyver and Joubert (1991: 556) view
such a transaction as being "aanvegbaar" (impugnable). Others appear to view contracts that
are concluded with third parties without the requisite consent as being void (see Sonnekus
(updated by Clark) 2008: B28; Van Heerden et al 1998: 98, 99; Visser and Potgieter 1998: 127)
unless the provisions of section 15(9)(a) are applicable (namely where the third party "does not
know and cannot reasonably know" that the contract was concluded without the necessary
consent).
312 SeeGovender and Another v Maitin and Another 2008 (6) SA 64 (D) at par [11) (regarding section
15(2)(g)); Bopape and Another v Moloto 2000 (1) SA 383 (T) at 387 (D) - 388 (F) (regarding
section 15(3), albeit mistakenly referring to "[s)ubsection (2)" at 386 (E)) and Amalgamated Bank
of South Africa Bpk v Lydenburg Passasiersdienste BK en Andere 1995 (3) SA 314 (T) at 322 (F) -
(G)) (with reference to section 15(2) in general).
313 See Commercial Union Assurance Company of South Africa Ltd v Clarke 1972 (3) SA 508 (A) at 518
(B).
314 See Bopape and Another v Moloto 2000 (1) SA 383 (T) at 387 (D) - 388 (F); Sonnekus (updated by
Clark) 2008: B28; Van Heerden et al 1998: 98, 99; Visser and Potgieter 1998: 127. In Pinnacle
Point Casino (Pty) Ltd v Auret NO and others [1999) 2 All SA 511 (C) a man married in community
of property had signed an agreement for the sale of immovable property that was subject to a
suspensive condition (namely the granting of a casino licence) without the written consent of his
436
wife as required by section 15(2)(b). The agreement was signed on 12 February 1999 while his
wife ratified it four days later (at 523). The Court held that an agreement that did not comply
with section 15(2)(b) was "not invalid per se" as it could be ratified by the spouse or upheld if it
could be deemed to be valid in order to protect the interests of a bona fide outsider in
accordance with section 15(9). The Court held that it could not be argued that the agreement
concluded on 12 February was not "valid and binding" (at 524). It is submitted that this finding
does not imply that the Court was of the opinion that transactions entered into without the
requisite consent prescribed by section 15 were voidable (as opposed to null and void). This is
because the phrase "not invalid per se" simply indicates that two exceptions to the general rule
of invalidity exist, namely ratification or the protection offered by section 15(9). Furthermore, it
is a general principle of South African law that ratification applies retrospectively so that the
agreement is validated as from the date of its conclusion and not from the date of the ratification
itself (see Torgos (Pty) Ltd v Body Corporate of Anchors Aweigh and Another 2006 (3) SA 369 (W)
at par [95]). Consequently, the fact that the Court stated that a "valid and binding agreement"
existed as from 12 February 1999 should not be read as implying that the agreement was valid at
the moment that it was signed, but instead that it was retrospectively validated by the
subsequent ratification. A final case to consider is that of Markram v Scholtz and another [2000]
4 All SA 452 (NC). In casu, the appellant appealed to the full bench of the Northern Cape Division
of the High Court (now the Northern Cape High Court, Kimberley) against an order upholding the
validity of an agreement in terms of which he was to purchase immovable property from the first
and second respondents, who were married in community of property. In terms of the
agreement, the appellant was to guarantee payment of the purchase price within 90 days of the
agreement being signed. The first respondent and the appellant signed on the same day (8
January 1998), but when the appellant became aware of the fact that the second respondent
(the first respondent's wife) had not yet signed the agreement towards the end of the 90-day-
period, the appellant assumed the agreement to be void for lack of compliance with section
15(2)(b) of the Matrimonial Property Act 88 of 1984. The second respondent signed the
agreement on 16 April 1998, which was 8 days after the expiration of the period within which the
appellant had been required to provide the guarantee. The respondents contended that the
agreement had been ratified by the second respondent within a reasonable time (as required by
section 15(4) of the Act) and that the agreement was therefore valid. On appeal, the full bench
held that the appellant had made an offer to the respondents on the s" of January, and that, by
8 April 1998 "was daar nog nie 'n geldige en afdwingbare ooreenkoms tussen die partye nie."
Furthermore, the Court held that at this date it was unlikely that the parties had intended the
appellant to render performance in terms of a "nietige ooreenkoms" (at 462). Ratification had
not taken place within a reasonable time, with the result that the appellant's offer had already
been repudiated or withdrawn by the time the agreement had been signed on 16 April (at 463).
The appeal was consequently upheld. Although this case has been cited in support of the view
that non-compliance with section 15 implies that a contract that has been signed by only one
spouse is conditional upon the other spouse signing and is therefore only visited with nullity once
this condition has not been fulfilled within a reasonable time (see Cronjé and Heaton 2004: 79
(note 72)), this view cannot be supported. It is clear that in the matter at hand the agreement
involved was multipartite in nature. As such, "[i]n the absence of clear indications to the
contrary", such a contract "does not bind any of the parties unless signed by all of them"
(Christie 2006: 108, referring to this very case as authority for his statement). Consequently,
until both respondents had signed the agreement, no acceptance of the appellant's offer could
take place and no agreement could come into being. This is clear from Steenkamp JP's
statement that, pending the second respondent's signature, no "geldige en afdwingbare" (valid
and enforceable) agreement existed. This statement cannot be interpreted in any other way as
to indicate that the "agreement" was void; a fact which the learned judge confirmed when, in the
same sentence, he stated that "en dit is onwaarskynlik dat die partye sou bedoel het dat die
437
Although it is generally accepted that ratification of a transaction rendered void
by statute is impossible315-a principle which may provide support for the
argument that non-compliance with the consent requirement in section 15 in
reality implies mere voidability in view of the fact that subsection (4) thereof
permits ratification316-it is submitted that a deviation from this principle may be
permitted where legislation that is couched in peremptory terms expressly
provides for such ratification, as section 15 clearly does. The Commission's
conclusion that the gist of section 15 is to impose voidability as opposed to
invalidity is therefore questionable to say the least.
However, even if is accepted that the Commission is correct in its view that non-
compliance with section 15 leads to voidability, two further problems arise.
First, the Commission's conclusion is made out of context. As mentioned above,
the Commission based its entire analysis of the difficulties in enforcing
cohabitation agreements where one partner was already married on an article
published by Singh. The difficulty that arises is that Singh's concluding word on
the topic (the emphasised sentence in the quote below) was not made in
reference to South African law but was in fact made in reference to American
law, which she opined could possibly be considered by the South African
Legislature:
appellant ingevolge 'n nietige ooreenkoms moes presteer het." In order to understand the full
import of this statement, regard must be had to the context within which it was made. The facts
indicated that, in order to furnish the guarantee, the appellant would have needed to sell his
farm. This need would obviously not only arise once the agreement had been signed by both
respondents, but was a reality which was present from the very moment at which the offer was
made (as from 8 January 1998). Consequently, when the Court stated that it was unreasonable
to expect this type of conduct from someone on the basis of a "nietige ooreenkoms" (void
agreement), it becomes clear that Steenkamp JP did not state that the agreement became void
only once the reasonable period of time had lapsed, but that it was in fact void as from 8
January; a fact which would only change if and when the offer had been properly accepted by the
second respondent's signature.
315 See Cape Dairy and General Livestock Auctioneers v Sim 1924 AD 167 at 170; Neugarten and
Others v Standard Bank of South Africa Ltd 1989 (1) SA 797 (A) at 808 (G) - (H).
316 This argument was raised in Bopape and Another v Moloto 2000 (1) SA 383 (T) at 388 (C) - (D).
438
Further assistance to South African lawmakers may be garnered from the California
Family Law Act of 1972. Section 118 of this Act was amended to provide that the
earnings and accumulations of both spouses while living separate and apart from the
other spouse, are the separate property of the spouse concerned. Consequently, it is
possible for a cohabiter to create a community of property with his or her partner to
whom he or she is not married which has no effect on the community of property
established with his spouse.317
The Commission appears to have overlooked this and to have accepted that the
final sentence in this quote was an opinion of the current position in South
African law. Consequently, the Commission's final word on the matter (which is
quoted almost verbatim from Singh's final paragraph)318 has been made
completely out of context.
This critical oversight exposes a logistical problem with the Commission's final
conclusion, because the mere fact that non-compliance with section 15 implies
that a transaction is voidable does not explain why a community of property may
be created with a partner that has no effect on an existing community of property
established by marriage. The Court's finding in Marvin was that such a purported
transfer was voidable at the instance of the aggrieved spouse. This possibility
can simply not without more justify the conclusion that a new community of
property can be created with an outsider, as the aggrieved spouse would always
have the option of voiding any such transaction. Something more is required in
order to guarantee that such a transaction would have "no effect" on the existing
community of property. What the Commission in fact needed to appreciate in
order for its conclusion to hold water was that section 15 provides a mechanism
whereby an outsider to a marriage in community of property can be protected in
317 1996: 324 (emphasisadded).
318 The Commission's conclusion [par 3.1.55] reads as follows: "Consequently, it is possible for a
domestic partner to create a community of property with his or her partner to whom he or she is
not married which hasno effect on the community of property establishedwith his spouse."
439
certain circumstances.ê'" This, it is submitted, might provide a solution to the
problem.
However, in order for the protective mechanism in section 15 to become
applicable in the first place, a greater problem would need to be overcome,
namely that section 15 of the Matrimonial Property Act lists specific transactions
to which it applies, none of which expressly deal with the situation where a
spouse attempts to permit an outsider to become a party to the entire joint estate
which exists between himself and his spouse. This was, in effect, what the
deceased attempted to do in Zulu, and it is therefore regrettable that none of the
Commission's submissions arose for adjudication in that case.
Nevertheless, superimposing the facts in Zulu onto the Commission's assertion
that a community of property may be created with an outsider to a subsisting civil
marriage in community of property does provide an interesting possibility, namely
that it could be argued that such an attempted transaction is covered by a
combination of the individual transactions listed throughout section 15 of the Act.
In other words, the creation of a further community of property over a number of
years with an outsider would be viewed as constituting a myriad separate
transactions, the most important of which320 would all, at some time or another,
have constituted one or more of those listed in section 15. On this construction,
the principles governing section 15 could be invoked in order to (i) sanction and
(ii) regulate the purported creation of a further community of property.Y'
In the alternative, if it was alleged that this argument would be stretching section
15 too far, it could at least have been contended that certain specific transactions
of the attempted transfer were covered by section 15. In this way, for example, it
319
Section 15(9)(a). The impact of this section is referred to later in the paragraphs that follow.
320
Cronjé and Heaton 2004: 78.
321
Such transactions may typically involve the alienation or conferring of a real right in immovable
property [section 15(2)(a) and (b)] and the donation or alienation without value of assets forming
part of the joint estate to a third party [section 15(3)(c)]).
440
may have been contended that the transaction to convey a share of the
immovable property on which the applicant resided was governed by section
15(2).
Irrespective of which of these options was decided upon, bringing the applicant's
claim within the purview of section 15 of the Matrimonial Property Act would be
vital for, as seen above, it could then be contended that the second "Mrs Zulu"
was not a spouse but in fact an outsider to the deceased's first marriage who
was worthy of the protection offered by section 15(9)(a) of the Act, which reads
as follows:
When a spouse enters into a transaction with a person contrary to the provisions of
subsection (2) or (3) of this section, or an order under section 16 (2), and-
(a) that person does not know and cannot reasonably know that the transaction is
being entered into contrary to those provisions or that order, it is deemed that
the transaction concerned has been entered into with the consent required in
terms of the said subsection (2) or (3), or while the power concerned of the
spouse has not been suspended, as the case may be; ...
As the bona fides of the second "Mrs Zulu" had (albeit, as seen in 2.4.3.3.2
above, not totally convincingly) been established by the Court, it could certainly
be argued that she did not know nor reasonably could have known that the
transactions were concluded without the consent of the legitimate spouse and
that the transactions were consequently valid. Indeed, this unawareness would
also immediately differentiate such a case from the finding in Bopape and
Another v Moloto 322in which it was held-ostensibly on the basis that the
defendant had been aware of the fact that the first and second plaintiffs were
validly married323-that "it would smack of injustice if a paramour were to be
allowed to retain gains which are clearly prejudicial to a joint estate.,,324
322 2000 (1) SA 383 (T).
323 At 384 (F).
324 At 388 (F).
441
Finally, as the deceased in Zulu was found to have been aware of the fact that
his second "marriage" was illegal (on which basis he could be presumed to have
known that his legitimate spouse would not have consented to his transactions
with the second "Mrs Zulu"), it is further submitted that, in accordance with
section 15(9)(b) of the Act, the first spouse would still be protected in some way
as she would be allowed to insist on an adjustment in her favour at the division of
the joint estate.
Although this possibility seems to be more realistic than the first, there is no
precedent to support the argument that a second "spouse" (or for that matter a
life partner) may in fact be a bona fide third party for the purposes of section
15(9). In addition, even if such an interpretation were permissible, the
disadvantage would be that only specific transactions (as opposed to the
recognition of a second "spouse's" claim to a share of the entire estate) could be
upheld.
In the end result this discussion shows that there is no clear answer as to
whether or not the existing matrimonial property law could be interpreted in such
a way as to accommodate a "second" spouse (or life partner) where a civil
marriage with community of property already exists.
2.4.3.4.3 Conclusion
As it stands, South African law does not recognise the claim of a second
(putative) "wife" to share in any portion of a "joint estate" where two civil
"marriages" that were both concluded in community of property co-exist with one
another. This position is untenable, and two potential solutions to this problem
were examined in the preceding paragraphs. The first is to develop the common
law, while the second is based on an interpretation of existing principles and
legislation (section 15 of the Matrimonial Property Act)325 governing transactions
325 88 of 1984.
442
of spouses married in community of property. The latter solution is however
fraught with uncertainty and depends on conjecture which makes this option
speculative and therefore undesirable. As a result, the first option (namely
development of the common law) is to be favoured. It is submitted that this
possibility should be brought to the attention of the Courts.
In closing, having seen that the Zulu case illustrates the need for the common
law to be developed in order to protect the interests of bona fide "spouses" to
bigamous marriages, the further question arises as to whether a contextualised
form of the putative marriage doctrine should be available to assist in resolving
similar difficulties where life partnerships are involved. For example, should this
doctrine assist the parties who are of the bona fide belief that they have entered
into a valid registered domestic partnership, only later to learn that it was never
properly registered? What would the position be where a "bigamous" domestic
partnership is entered into in the sense of a married man attempting to register
such a partnership with a second woman? These questions will be answered in
Part 3 dealing with the modification of the Domestic Partnerships Bill, 2008 in the
light of the domestic partnership rubric. For now it has been established that the
South African Law Reform Commission's conclusions regarding the enforcement
of an agreement between two partners when one of them is still married to
someone else have been made out of context and are of dubious accuracy. This
notwithstanding, it will be seen in Part 3 that a number of the lessons learned
from the comparative study conducted above may be equally applicable within
the context of life partnerships.
2.5 Conclusion: Common law protection
From the analysis conducted it becomes clear that the common law provides
insufficient protection for life partners. While the law of contract offers the only
meaningful protection, this option remains unenforceable against outsiders and in
addition requires a certain level of sophistication that unfortunately makes it an
443
unrealistic option for many South Africans. It has also been concluded that the
prevailing legal position (in consequence of the case Zulu v Zulu)326 provides no
protection for a "spouse" who is "married" to someone who is still a spouse to a
subsisting valid civil marriage with someone else. Within the context of this type
of situation it has been suggested in consequence of a comparative analysis that
the common law should be developed in order to protect the second "spouse."
Whether or not the development suggested should also be extended to protect a
person involved in a life partnership with someone who is already married or in a
similar status-altering relationship will be considered in Part 3 of this study.
As far as the domestic partnerships rubric is concerned, the lack of common law
protection highlighted throughout paragraph 2 of this Chapter emphasises the
need for this state of affairs to be improved by way of effective, accessible and
consistent domestic partnership legislation.
In the paragraphs that follow the piecemeal recognition granted to life
partnerships by the Legislature will be considered.
3. RECOGNITION OF LIFE PARTNERSHIPS BY THE SOUTH AFRICAN
LEGISLATURE
3.1 Introduction
The piecemeal recognition accorded to life partnerships is not limited to that
granted by the South African Courts. In fact, the first step towards greater
recognition of cohabitation was taken by the Legislature before the Second World
War: In terms of insolvency legislation,327 the word "spouse" has, since 1 July
326
2008 (4) SA 12 (D).
327
The Insolvency Act 24 of 1936.
444
1936,328been defined as not only including marriages "in the legal sense", but
also those "according to any law or custom" as well as "a woman living with a
man as his wife or a man living with a woman as her husband, although not
married to one another" for the purposes of determining the effect of
sequestration on the property of the insolvent's spouse.329 Although a number of
similar legislative developments fOllowed,33o these developments were-not
surprisingly in view of the prevailing laws of the time-limited to heterosexual
cohabitants.
The impetus for greater recognition for both heterosexual and homosexual life
partnerships was provided by the Bill of Rights and by legislation promulgated in
order to give effect thereto, such as the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000.331 Incidentally, the interim Constitution of
1993332made specific provision for the right of all detained and sentences
prisoners to "communicate with, and to be visited by, his or her spouse or
partner.,,333 Building on this foundation, a number of Acts which provide specific
legal recognition to life partnerships in the narrow sense of the phrase have been
promulgated since 27 April 1994.334 The aim of this part of this Chapter is to
provide a brief overview of this legislation with a view to ascertaining the efficacy
of this piecemeal system. Building on this, that facet of the domestic partnership
rubric that requires an effective interrelationship between these Acts and the draft
Domestic Partnerships Bill, 2008 will be dealt with in Part 3 (Chapter 7).
328 This was the date on which Act 24 of 1936 came into operation.
329 Section 21(13).
330 See for example Schater 2006: 626 (note 2); Sinclair and Heaton 1996: 285 (note 69) and 290
(note 84); Schwellnus 1994: 6.
331 SALRC2006: 148.
332 Act 200 of 1993.
333 Section 25(1)(d). This provision was included in the Constitution, 1996 (section 35(2)(f)(i)). Also
see Langemaat v Minister af Safety and Security and Others 1998 (3) SA 312 (T) at 316 (G) - (H)
(discussed in Chapter 5) where reference was made to the relevance of this section.
334 For additional examples, see SALRC2006: 148 et seq and note 44 of Sachs J's minority judgment
in Volks NO v Robinson 2005 (5) BCLR446 (CC) at par [175].
445
3.2 An overview of the legislative enactments that have taken place
since 1994that deal with life partnerships
3.2.1 Maintenance legislation
As seen in Chapter 5 that dealt with the judicial developments, the Maintenance
Act 99 of 1998 widened the scope of persons who are legally obliged to maintain
others beyond the confines of blood relations and spouses.P" Section 2(1) of
this Act states that the Act applies "to the legal duty" of any person to maintain
another "irrespective of the nature of the relationship" that creates that duty.
Therefore, the Act does not only apply to married couples, but also includes a
duty to maintain that arises by virtue of a contractual undertaking. Consequently,
same-sex or opposite-sex life partners who have contracted to maintain one
another are included for the purposes of this Act.336
3.2.2 Domestic violence and sexual offences
• In seeking to provide more comprehensive protection for the victims of
domestic violence, the Domestic Violence Act 116 of 1998 defines a
"domestic relationship" in such a way as inter alia including unmarried
persons who "live or lived together in a relationship in the nature of
marriage" even if they are or were unable to marry one another,337 as well
as persons who "share or recently shared the same residence.,,338
335
See 3.3.1.2 in Chapter 5. Also see Cronjé and Heaton 2004: 58.
336
Cronjé and Heaton 2004: 58. Also see the decision of the Pension Funds Adjudicator in Hlathi v
University of Fort Hare Retirement Fund and Others PFA/EC/9015/2006 at par [27]. It is
interesting to note that neither Schater (2008(b)) nor the SALRC (2006: 148 - 165) express
themselves as to the impact of section 2(1) of the Maintenance Act on life partners. By virtue of
her statement that "[n]o enforceable right to claim maintenance from a cohabitation partner
exists either during the cohabitative relationship, or after termination of the relationship" it can
be inferred that Schwellnus (2008: N9) is not of the opinion that a contractual duty of support
that exists between cohabitants can be enforced in terms of this Act.
337
Par (b) of the definition.
338
Par (f) of the definition.
446
• A "same sex or heterosexual permanent life partner" qualifies as an
"interested person" for the purposes of chapter 5 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007.339
This implies that a life partner is regarded as having a "material interest in
the well-being" of a victim of a sexual offence which, for example, entitles
such a person to bring an application for the alleged offender to undergo a
HIV test."?
3.2.3 Children
• The Children's Act 38 of 2005 contains a number of provisions that
specifically refer to life partners. The relevant provisions in this Act which
refer to life partners are inter alia those that deal with adoption and
surrogate rnotherhood.i'" As these topics have already been covered in
Chapter 5, the reader is referred to that Chapter.342 However, as far as
the interrelationship of the Children's Act and the draft Domestic
Partnerships Bill, 2008 is concerned, it is necessary for a number of
further amendments to be made to both the Act and the Bill. Due to their
esoteric nature, these proposals will be dealt with comprehensively in
Chapter 7 that deals exclusively with this facet of the rubric.
3.2.4 Labour and social security law
• Labour law legislation currently makes fairly extensive provision for the life
partners of employees and members of pension funds:
339 Section 27.
340
Definition of "interested person" in section 27 read with section 30.
341
Chapters 15 and 19 respectively.
342
See 4.1, 4.2 and 4.3 of that Chapter.
447
In accordance with the Employment Equity Act,343 an employee
may not be discriminated against unfairly on a number of grounds,
including "family responsibility.,,344 The latter ground is in turn
defined to include an employee's responsibility towards his or her
"spouse or partner.,,345
An employee is entitled to three days' paid family responsibility
leave per annual leave cycle in the event of the death of, amongst
others, his or her "spouse or life partner,,;346
Provided that he or she leaves no widow or widower behind, a
person with whom an unmarried deceased employee was "living as
husband and wife" is regarded as that employee's dependant for
the purposes of the Compensation for Occupational Diseases and
Injuries Act;347
The Unemployment Insurance Act 63 of 2001 entitles a deceased
contributor's life partner who complies with the provisions of the Act
to apply for the dependant's benefits;348
The "surviving spouse or partner" of any Judge is entitled to certain
benefits in terms of the Judges' Remuneration and Conditions of
Employment Act 47 of 2001. Section 1 of this Act defines the word
"partner" as:
343
55 of 1998.
344
Section 6.
345
Section l.
346
Section 27(2)(c)(i) of the Basic Conditions of Employment Act 75 of 1997.
347
130 of 1993, section 1 definition of "dependant of an employee" (paragraph (c)).
348
Section 30.
448
only one person with whom a Constitutional Court judge or judge, who
is not legally married, is involved in a permanent heterosexual or same-
sex life partnership-
(a) in which the Constitutional Court judge or judge and the
person concerned have undertaken reciprocal duties of
support; and
(b) which is, for the purposes of this Act, registered as such
with the Director-General: Justice and Constitutional
Development in accordance with the regulations made
under section 13.
Prior to the definition of "spouse" in the Pension Funds Act 24 of
1956 being amended to include a "permanent life partner or spouse
or civil union partner" in accordance with marriage legislation or the
tenets of a specific religion as of 13 September 2007,349 Cronjé and
Heaton'"" opined that a surviving life partner may qualify as a
"dependant" of the member "even if the member did not
contractually undertake to maintain [that] person" by virtue of the
discretion granted by the Act to the board of trustees to regard the
partner as such. This opinion was recently confirmed by the
Pension Funds Adjudicator in Hlathi v University of Fort Hare
Retirement Fund and Others351 when the Adjudicator confirmed the
apportionment made to the surviving life partner as a "factual
dependant" of the deceased who had died before the amendment
of 2007 had been enacted. This case was discussed in 3.5 in
Chapter 5 above.
In terms of the rules which regulate the Government Employees
Pension Law, 1996 the word "spouse" includes "a life partner
349
This amendment was occasioned by the Pension Funds Amendment Act 11 of 2007.
350 2004: 229.
351
PFA/EC/9015/2006.
449
(including same sex life partner)" of an unmarried person. A
member or pensioner is required to register such a person as a
spouse, and registration implies that the person is prima facie
regarded as being a "spouse" for the purpose of the Act. This
notwithstanding, a person who is not registered may qualify as such
after submitting proof to the satisfaction of the Board of Trustees;352
and
The Special Pensions Act 69 of 1996 directs that for the purposes
of that Act the definitions of "spouse" and "marriage relationship"
include civil marriages, customary marriages, marriages concluded
according to religious marriage systems and "a continuous
cohabitation in a homosexual or heterosexual partnership for a
period of at least 5 years.,,353
3.2.5 Medical schemes
• The Medical Schemes Act 131 of 1998 defines a "dependant" so as to
include a "spouse or partner" to whom the member is duty-bound to
provide "family care and support." In addition, section 24 of the Act
requires the Council for Medical Schemes to be satisfied that a
prospective medical scheme does not discriminate unfairly on grounds
including gender, sexual orientation and marital status before it may be
registered as such in terms of the Act.354
• The "spouse or partner" of an older person who is incapable of consenting
to his or her admission to a residential facility may consent to such
352
See the definition of "spouse" in section 1 of the Rules of the Government Employees Pension
Fund as contained in Schedule 1 of the Law.
353
Section 31(1) read with subsection (2). Also see Volks NO v Robinson 2005 (5) BCLR446 (CC) at
par (175) (note 44); SALRC2006: 152.
354
Section 24(2)(e); Cronjé and Heaton 2004: 231; Volks NO v Robinson 2005 (5) BCLR446 (CC) at
par (175) (note 44); SALRC2006: 149.
450
admission on behalf of the older person in terms of section 21(3)(b )(i) of
the Older Persons Act 13 of 2006.355
3.2.6 Tax law
Life partners are treated in the same way as spouses for the purposes of tax
legislation such as the Transfer Duty Act,356 the Income Tax Act 357and the
Estate Duty Act 358where the word "spouse" is, for the purposes of all of these
Acts, defined so as to include a person's partner in a permanent "same-sex or
heterosexual union.,,359
3.2.7 Insolvency
As seen above, for the purpose of determining the effect of insolvency on the
property of the insolvent's spouse, section 21(13) of the Insolvency AcP60 states
that the word "spouse":
means not only a wife or husband in the legal sense, but also a wife or husband by
virtue of a marriage according to any law or custom, and also a woman living with a man
as his wife or a man living with a woman as her husband, although not married to one
another.
By virtue of this section, the Master and thereafter the trustee becomes the
owner of both the solvent as well as the insolvent life partners' estates.361 The
solvent partner (or "spouse") can however regain ownership of property listed in
355 See Schater 2008(b): R33.
356 40 of 1949.
357 58 of 1962.
358 45 of 1955.
359 See the section 1 definition of "spouse" in both Acts.
360 24 of 1936.
361 See Sharrock et al 2000: 55 who also points out that according to the case of Chaplin NO v
Gregory (or WyldJ 1950 (3) SA 555 (Cj where the insolvent is a married person who is
cohabitating with a life partner, only the property of the "legal spouse" will vest in the trustee.
451
section 21(2),362and may apply to Court for an order releasing any property that
vests in the trustee.363
According to SChwellnus,364the wording of this section indicates that it does not
apply to same-sex couples. This statement appears to be correct as it will not be
possible for a Court to interpret the words "man" or "woman" as anything other
than exactly that.365 Consequently, with the exception of unions involving a
person who has undergone a legally-valid alteration of sex description and sex
status366so as to render the union a heterosexual one,367all other same-sex
couples368will be excluded from the ambit of section 21 of the Insolvency Act, 369
with the result that the interesting situation arises that the very same Act which in
1936 was one of the first expressly to provide for relationships outside of civil
marriage is currently prima facie unconstitutional"?
362
"The trustee shall release any property of the solvent spouse [life partner] which is proved-
(a) to have been the property of that spouse immediately before her or his marriage to the
insolvent or before the first day of October, 1926; or
(b) to have been acquired by that spouse under a marriage settlement; or
(c) to have been acquired by that spouse during the marriage with the insolvent by a title
valid as against creditors of the insolvent; or
(d) to be safeguarded in favour of that spouse by section twenty-eight of this Act; or
(e) to have been acquired with any such property as aforesaid or with the income or
proceeds thereof."
363 Section 21(4).
364
2008: N7. Also see Meskin et 0/2008: 5.30.1.1.
365
See Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA) at par [28] _
[33] where the majority (per Cameron JA) was not prepared to interpret the words "wife (or
husband)" as "lawful spouse" (as proposed by Farlam JA in his minority judgment at par [132] _
[138]), but suggested that the remedy of "reading in" was preferable.
366
By virtue of the Alteration of Sex Description and Sex Status Act 49 of 2003.
367
For example, where A (born male) has undergone gender reassignment surgery so as to become
female and he lives with a male person (B) or where C (born female) undergoes gender
reassignment surgery so as to become male and lives with a female person (D).
368
This will include unions which are regarded as being between two persons of the same sex due to
the fact that one of the parties has altered his or her sex description and sex status in terms of
Act 49 of 2003. For example, where A (born male) has undergone gender reassignment surgery
so as to become female and he lives with another female person (F) or where C (born female)
undergoes gender reassignment surgery so as to become male and lives with another male
person (H).
369
24 of 1936.
370
See Meskin et 0/2008: 5.30.1.1.
452
It is consequently submitted that the wording of section 21(13) will need to be
amended by the Legislature (or, if the matter should come before the Courts, be
altered by "reading in") in such a way as not only to be constitutionally valid but
also to be in line with prospective domestic partnership legislation (as embodied
in the Domestic Partnership Bill, 2008 and modified in accordance with the
domestic partnerships rubric). To this end it is submitted that the words "and
also a woman living with a man as his wife or a man living with a woman as her
husband, although not married to one another" in subsection (13) should be
deleted and replaced with the words in italics so as to read:
In this section the word 'spouse' means not only a wife or husband in the legal
sense, but also a wife or husband by virtue of a marriage according to any law or
custorn, and aIso a person wnha ,i.tves WI.t h371 the t.n, so vent m. a permanent
domestic partnership.
It is further proposed that a definition of "domestic partnership" be inserted
into section 1 of the Insolvency Act of 1936 to read:
'domestic partnership' means a registered or unregistered domestic
partnership in accordance with the Domestic Partnerships Act ... of ...
3.2.8 Membership of Boards or appointment as Commissioners in terms of
specific legislation372
Both the South African Civil Aviation Authority Act 40 of 1998373
and the Road Traffic Management Act 20 of 1999374 contain
371 Although the 2008 Bill does not specifically require cohabitation (see SALRC 2006: 393), it is
suggested that the requirement of living together be retained in order to remain true to the
legislative purpose of section 21(13) (see Meskin et 0/2008: 5.30.1.1) and in view of the principle
that the criteria prescribed by any given Act prior to the coming into operation of specific
domestic partnership legislation should as far as possible be respected-see 12.1 in Chapter 7.
372 Also see Volks NO v Robinson 2005 (5) BCLR446 (CC) at par [175) (note 44); SALRC2006: 152,
153.
453
provisions requiring disclosure and adjudication of any financial
interest which any member or, amongst others, his or her "life
partner" may have in a matter to be dealt with at a meeting of the
Boards which govern the South African Civil Aviation Authority and
the Road Traffic Management Corporation respectively.F" In
addition, both Acts prescribe certain requirements before a Chief
Executive Officer or his or her "spouse, immediate family member,
life partner or business associate" may hold any financial interest in
the activities which are regulated by those Acts.376
The word "spouse" is regarded as including a "de facto spouse" for
the purposes of ascertaining which persons will be disqualified from
membership of the Independent Media Commission which is
created in terms of the Independent Media Commission Act 148 of
1993.377
373
Section 9(4). This Act stands to be repealed by the Civil Aviation Act 13 of 2009. In terms of
section 24(2) of the new Act, any member of the Aviation Safety Investigation Board or any
member of the "staff or accredited representatives, experts and advisers" may not hold any
financial interest in a civil aviation activity or in that industry without prior written approval of
the Minister of Transport. Section 84(1) of the same Act regulates potential conflicts of interest
involving inter alia the "life partner" of a member of the Civil Aviation Authority Board.
According to section 93, the Director of the latter board and his or her "life partner" (amongst
others) may not hold any financial interest in any civil aviation activity or in that industry without
the prior written approval of the Minister. Section 98 contains a similar provision in that "any
person appointed to perform any function in terms of this Act" as well as his or her "life partner"
may not hold any such financial interest without the Director's approval.
374
Section 10(2).
375
By the same token the position of a member of the National Lotteries Board (established in
terms of the Lotteries Act 57 of 1997) who holds or obtains any financial or commercial interest
personally or by virtue of a "spouse or life partner, immediate family member, business partner
or associate" is regulated by section 3(7) of the Act. The Act also imposes restrictions on this
group of persons once the member's membership of the Board has terminated-see section
3(8). In addition, section 7(5) imposes restrictions on the employment and other benefits which
an employee of the relevant government Department whose duties relate to any lottery or which
any person who has at any time served on the Board as well as the "spouse or life partner,
immediate family member, business partner or associate" of such a person may receive. Also
see Volks NO v Robinson 2005 (5) BCLR446 (CC) at par [175] (note 44); SALRC2006: 152.
376
See section 11(5)(b) of Act 40 of 1998 and section 15(9) of Act 20 of 1999.
377
Section 6(2).
454
If the "business or life partner" (amongst others) of a member of the
Board of Directors or of an employee of the Land and Agricultural
Development Bank of South Africa submits an application or
agreement for financial services which are to be rendered by the
Bank, such member or employee is not permitted to be involved in
the decision-making process at any meeting of the Board.378 The
same disqualification also applies if the application or agreement is
submitted by a close corporation which has a member who is the
life partner of that member of the Board or employee of the Bank.379
The National Nuclear Regulator is created in terms of the National
Nuclear Regulator Act 47 of 1999 and is, similar to the other
legislation discussed above, also governed by a Board of Directors.
The Act stipulates that no director may be present during or
participate in any decision-making process on any matter in which
(inter alia) his or her life partner has any form of financial interest.38o
378 Land and Agricultural Development Bank Act 15 of 2002; section 21(3)(a).
379 Section 21(3)(d). Other provisions relating to offences committed by the life partners of certain
individuals are listed in section 47 of the Act.
380 Section 8(9). Section 6(4) of the National Energy Regulator Act 40 of 2004 prescribes similar
restrictions for members of the National Energy Regulator. According to section 6(3)(c) of the
same Act, every member (whether full- or part-time) must upon his or her appointment "disclose
to the Minister and the Energy Regulator if his or her spouse, life partner or child is in the employ
of or acts as a consultant to, or has any relationship with, any person, firm, association or
company engaged in the electricity, piped-gas and petroleum pipelines industries, or has any
pecuniary interest in any such person, firm, association or company" (emphasis added). The
Minister and the Regulator must also be informed in writing if a life partner, spouse or child of a
member should acquire any such interest in future-see section 6(6). Members of the Board
which governs the South African National Energy Development Institute are also required to
make similar disclosures as those mentioned in section 6(3)(c) of Act 40 of 2004 regarding the
functions of that Institute-see section 8(10)(b) of the National Energy Act 34 of 2008.
Disclosure and non-participation requirements regarding life partners are also prescribed for
members of the Construction Industry Development Board which is established in terms of
section 3 of the Construction Industry Development Board Act 38 of 2000 (see section 9). No
member of the Railway Safety Regulator (established by the National Railway Safety Regulator
Act 16 of 2002) may attend any meeting of or participate in any decision taken by the Board
involving any matter in which that member's life partner (amongst others) has any direct or
indirect financial interest (section 8(9)).
455
Whereas the preceding examples contain clear-cut provisions, the
National Credit Act 34 of 2005 provides an interesting example of
uncertainty as far as its use of the word "partner" is concerned. In
prescribing the requirements for membership of the Board that
governs the National Credit Regulator, section 20(2)(b) of the Act
states that a person will not be eligible for membership of that
Board if he or she inter alia:
personally or through a spouse, partner or associate-
(i) has or acquires a direct or indirect financial interest in a
registrant; or
(ii) has or acquires an interest in a business or enterprise,
which may conflict or interfere with the proper
performance of the duties of a member of the Board.381
As the words "spouse", "partner" or "associate" are not defined by
the Act, it is uncertain-particularly if one bears the commercial
context of the Act in mind382-whether the word "partner" refers to a
partner in the commercial or in the domestic sense of the word.
What makes the position in terms of this Act particularly uncertain is
the fact that another piece of legislation which has also made use
of the phrase "spouse, partner or associate" has included an
express provision regarding the interpretation to be given to the
word "spouse",383while no similar provision appears in Act 34 of
2005.
In addition, the positioning of the word "partner" between the words
"spouse" and "associate" makes either conclusion plausible: The
381
Emphasis added.
382
See the preamble to the Act.
383
Section 6(2) of the Independent Media Commission Act 148 of 1993 provides that, for the
purposes of that section, the word "spouse" includes a "de facto spouse." This concept is
however not defined.
456
word "spouse" may support the domestic conclusion, while the
word "associate" may strengthen the commercial conclusion. In
view of this uncertainty, it is submitted that the safest route to take
is to assume that the word "partner" can encompass both senses.
This conclusion is strengthened by the fact that the word
"associate" appears to be wide enough to encompass a "partner" in
the commercial legal sense of the word.384
In order to clarify this aspect, an amendment to the Act is proposed
in Chapter 7.
3.2.9 Miscellaneous
It A person who is involved in "a permanent homosexual or heterosexual
relationship" as prescribed in the regulations to the Act qualifies as a
"spouse" for the purposes of the Immigration Act 13 of 2002.385
o For the purposes of Schedules 1386 and 2387 of the Local Government:
Municipal Systems Act 32 of 2000, the word "partner" is defined as "a
person who permanently lives with another person in a manner as if
married."
• Section 4(1) of the Rental Housing Act 50 of 1999 provides that a landlord
may not discriminate unfairly against a prospective or current tenant or
384
See for example Alien ed 1991: 65. Further support for this contention is provided in section
40(2)(d)(i) of the same Act, which does not contain a mere unqualified reference to "partner" but
instead specifically refers to a "spouse or business partners."
385 Section 1 definition of "spouse." See the regulations in the Government Gazette of 27 June 2005
(GN 616 in Gazette no 27725) where the method of proving the existence of a "permanent
homosexual or heterosexual relationship" is set out. These regulations are quoted in Chapter 7
(note 630).
386 This schedule contains the Code of Conduct for Councillors.
387 This schedule contains the Code of Conduct for Municipal Staff Members.
457
against the members of the tenant's family or against his or her visitors on
grounds which include marital status and sexual orientation.388
3.2.10 Developments that are expected in future
• The Diplomatic Immunities and Privileges Amendment Act 35 of 2008 was
signed on 25 November 2008 but is yet to come into operation. If this
happens, it will amend section 2(b) of the Diplomatic Immunities and
Privileges Act 37 of 2001 so as to include "the life partner, officially
recognised as such by the sending State or the United Nations, a
specialised agency or an international organisation" as a "member of a
family" or, where applicable, as a "spouse and [relative] dependant" for the
purposes of the Conventions/'" which have force of law in South Africa.
• If the Judicial Service Commission Amendment Act 20 of 2008 comes into
operation.F" the "life partner" of a Judge will be regarded as being an
"immediate family member" for the purposes of Chapter 2391 of the Judicial
Service Commission Act 9 of 1994.
4. CONCLUSION
An analysis of the protection currently provided to life partners by the law of
obligations has revealed that such protection is largely inadequate. The
conclusion was reached that proprietary estoppel and the law of (constructive)
trusts find no application to life partnerships in South African law, while any
388
Cronjé and Heaton 2004: 229.
389
According to section 1 of the Act, these are: the Convention on the Privileges and Immunities of
the United Nations, 1946, the Convention on the Privileges and Immunities of the Specialised
Agencies, 1947, the Vienna Convention on Diplomatic Relations, 1961, and the Vienna Convention
on Consular Relations, 1963. These Conventions are set out in the Schedules to Act 37 of 2001.
390
The Amendment Act was assented to on 22 October 2008 but has not yet come into force.
391
Chapter 2 is inserted by section 9 of the Amendment Act and is entitled "Oversight over judicial
conduct and accountability of judicial officers."
458
protection provided by the law of unjustified enrichment remains theoretical in
nature. The law of contract appears to provide the only noteworthy form of
protection. Nevertheless, the major problems caused by this option remain that
contractual undertakings are not enforceable against outsiders and that
contractual protection requires a relatively high level of sophistication of the
partners involved. In addition, it has been seen that the law provides no means
by which the position of a second "spouse" who is "married" to someone who is
already a spouse to a valid subsisting civil marriage with another person is
regulated effectively, and in this regard the development of the common law
putative spouse doctrine has been propagated in accordance with guidance
obtained from foreign jurisdictions. Whether or not this doctrine and the theories
propagated in consequence of the comparative analysis should form part of the
domestic partnerships rubric will be considered in Part 3 of this study.
The analysis of the law of obligations conducted above provides a number of
valuable guidelines for prospective domestic partnerships legislation, such as (i)
that it must create a framework within which the rights and obligations attached
to a life partnership are recognised and enforceable against outsiders, and (ii)
that the rubric must cater for the needs of sophisticated as well as less
sophisticated members of society by providing legislative protection that is
accessible and consistent and that is applied on the basis of flexible and context-
specific criteria.
A perusal of the statutes discussed in the second part of this Chapter makes it
fairly obvious that South African legislation deals with life partnerships in a
haphazard fashion. Terminology employed in the various statutes is
inconsistent, and, at times possibly unconstitutional due to gender discrimination.
From these preliminary observations the conclusion is reached that further
legislative intervention will be required in order to remove these inconsistencies
and to pre-empt constitutional challenges to legislation such as the Insolvency
459
Act.392 If this is to be achieved, it is imperative that benchmarking legislation is
developed in accordance with the domestic partnerships rubric and that the Acts
discussed in this Chapter are aligned therewith. The means to achieve this goal
will be discussed in Part 3 (Chapter 7).
392 24 of 1936.
461
CHAPTER 7:
THE MODIFICATION AND CALIBRATION OF THE
DRAFT DOMESTIC PARTNERSHIPS BILL, 2008 IN
ACCORDANCE WITH THE BEHESTS OF THE DOMESTIC
PARTNERSHIP RUBRIC
1. INTRODUCTION TO PART 3 OF THIS STUDY
Parts 1 and 2 of this study have assessed the need for a legislationdrafted according to a domestic partnership rubric and, in consequenceof a detailed investigation into apposite case law, common law and
legislation, to draw a number of conclusions which should feature as part of the
legislation. The structure and content of the rubric was set out in chapter 3, but
for the sake of convenience, this is repeated:
1. Domestic Partnerships Bill, 2008
1
Domestic Partnership Rubric = 2. Modified in the light of conclusions reached
in Parts 2 and 3
1
3. Aligned with applicable legislation impacting
on domestic or life partnerships
462
In this, the penultimate part of the study, the rubric will be put into action. This
must, according to the preceding diagram, take the draft Domestic Partnerships
Bill, 2008 as a point of departure as the legislative substructure. Once the basic
ambit of the Bill has been determined, the remainder of this Part will entail the
modification thereof in the light of the conclusions drawn in Part 2 of this study
(as well as further conclusions reached in this Part), and the calibration of the Bill
with attendant legislation impacting on domestic or life partnerships so as to
ensure legal certainty. In the end result, this Part aims to culminate in the
provision of robust, consistent, accessible, realistic and context-specific South
African domestic partnership legislation.
2. BACKGROUND TO THE DRAFT DOMESTIC PARTNERSHIPS BILL,
2008
The first Civil Union Bill 1 as it appeared in August 2006 in response to the
decision of the Constitutional Court in Minister of Home Affairs and Another v
Fourie and Another (Doctors for Life International and Others, Amici Curiae);
Lesbian and Gay Equality Project and Others v Minister of Home Affairs and
Otners' (hereinafter "Minister of Home Affairs v Fourie") included a chapter
(chapter 3) dealing with registered and unregistered domestic partnerships.
However, as the deadline set by the Fourie case for the enactment of same-sex
marriage legislation loomed, it was proposed in the Home Affairs Portfolio
Committee's deliberations on the Bill to jettison this chapter.' This proposal,
which was made on 7 November 2006, was supported the following day by the
ruling party (the African National Congress), following which a new draft Civil
[B 26-2006).
2006 (1) SA 524 (CC). See the discussion of the developments leading to the validation of same-
sex marriages in Chapter 3.
http://www.pmg.org.za/minutes/20061106-civil-union-bill-deliberations (accessed on 5 June
2009).
463
Union Bill4 was tabled on 9 November." This draft was eventually enacted on 30
November that year as the Civil Union Act 17 of 2006.
The draft Domestic Partnerships Bill, 2008 appeared in the Government Gazette
of 14 January 2008.6 In effect, its proposals are almost identical to chapter 3 of
the original Civil Union Bill which, in turn, was based on the proposals contained
in chapters 6 and 7 of the South African Law Reform Commission's Project 118
Report on Domestic Partnerships as it appeared in March 2006.7
The 2008 draft Bill attempts to regulate two possible categories of domestic
partnership. The first is the so-called "registered domestic partnership" in terms
of which the parties undertake a public commitment" by registering their
relationship in accordance with chapter 3 of the Bill, so that the legal
consequences set out therein become applicable to their partnership. The
second is described as an "unregistered domestic partnership" and is regulated
by chapter 4 of the Bill. This partnership does not require the public commitment
prescribed for the first category, but instead applies by default and allows-within
limits9-an application to be brought to a competent Court that is endowed with a
wide discretion to make an order pertaining to maintenance, intestate succession
or property division on the termination of the partnership." As such, chapter 4 of
the Bill embodies the so-called ex post facto "judicial discretion model" under
which legislation does not automatically clothe the relationship with a certain
[B 26B-2006].
http://www.pmg.org.za/minutes/20061107-civil-union-bill-deliberations (accessed on 5 June
2009).
6 Notice 36 of 2008, Government Gazette No. 30663.
See Smith and Robinson 2008(a): 357, 358 for a more comprehensive discussion of the legislative
history of the Civil Union Act 17 of 2006. These authors have also opined that, by enacting the
civil partnership, the Legislature in effect legislated on domestic partnerships despite the
decisions taken on 7 and 8 November (at 378).
8 SALRC2006: 320.
See clause 26(4) (a Court may not make an order in respect of a relationship involving a person
already married in terms of civil law, or already a partner in a civil partnership or other registered
domestic partnership with someone else) and 26(5) (at least one partner must either be a
permanent resident or be a citizen of the Republic).
10 Clause 26.
464
status under pre-defined circumstances," but instead permits the applicant(s) to
"opt-in" to the mechanisms provided by the Act by way of a Court application
"where any prejudice is imminent as a result of the fact that the relationship has
ended.:"
Although the 2008 Bill has thus far only appeared in draft form, its manifestation
in this form should not lead one to conclude that it is a novice on the legislative
scene. This is so because virtually the entire content of the 2008 Bill debuted
already in 2006-albeit in somewhat of a different guise-in the original Civil
Union Bill. Consequently this Chapter (and the rubric) takes as its point of
departure that the 2008 draft Bill provides a more than reliable idea of what the
Legislature perceives domestic partnership legislation ultimately to require. In
the light hereof this Chapter will aim, firstly, to ascertain the parameters of
domestic partnerships under the current Bill and thereafter to assess the impact
of the Bill on the prevailing legal position pertaining to life partnerships. In
compliance with the second and final facets of the rubric, various modifications to
the Bill itself as well as amendments to ancillary legislation will be suggested.
In view of the large number of amendments that will be proposed throughout this
Chapter it will be vital, for the sake of clarity, to convey a number of "ground
rules" in order to assist the reader:
• Unless otherwise indicated, all new insertions to the Bill or to any other Act
will be indicated in italics; and
• Unless otherwise indicated, all words or provisions that are deleted will be
indicated by "strikethrough" text (e.g. "In the interests of all married
couples .... ") or by [... ] with a footnote reference citing the deleted text.
11 Under the so-called "ascription model" the domestic partnership legislation protects the parties
during the existence as well as after the termination of the partnership by automatically
imputing a certain status to all relationships that comply with pre-defined criteria (such as a
minimum duration requirement)-see SALRC2006: 366 - 369.
12 SALRC2006: 375.
465
3. ASCERTAINING THE AMBIT OF DOMESTIC PARTNERSHIPS UNDER
THE BILL
3.1 The preamble to the Bill
The South African Law Reform Commission's Recommended Domestic
Partnership Act as contained in Annexure E13 of its 2006 Report contains no
suggestion as far as the wording of the preamble to the proposed Act is
concerned. The preamble to the 2008 Bill reads as follows:
WHEREAS section 9(1) of the Constitution of the Republic of South Africa, 1996,
provides that everyone is equal before the law and has the right to equal protection and
benefit of the law;
AND NOTING that there is no legal recognition or protection for opposite-sex couples in
permanent dormnesttiic partners hiIpS ...14
In contrast to the wording of the 2008 Bill, the preamble to the original Civil Union
Bill of 31 August 2006 made it clear that the Bill was drafted bearing in mind the
fact "that there is no legal recognition or protection for same-sex and opposite-
sex couples in permanent domestic partnershlps.t" It will be noted that this
version of the Bill still contained a chapter dealing specifically with domestic
partnerships." While it is true that this chapter was later discarded, it is
submitted-particularly in view of the fact that chapter 3 of the 2006 Bill was
almost identically transplanted into the 2008 Bill-that the preamble to the former
is relevant to the latter.
13
At 451 et seq.
14
Emphasis added.
15
Emphasis added.
16
Chapter 3.
466
The use of preambles to legislation as an interpretative tool was discussed in
research conducted and published as part of the background to this study." In
the publication in question it was pointed out that the Civil Union Act 17 of 2006
creates a number of interpretative difficulties (a point that will receive further
attention in Chapter 8), as inter alia, certain provisions of the Act create the
impression that it only permits same-sex couples to enter into civil unions. In
addition, it was opined that the preamble to the Act was of little value in resolving
this difficulty, due to the fact that the preamble itself also only made reference to
"same-sex couples" and therefore strengthened the prima facie case for arguing
that only same-sex couples were entitled to marry or to conclude civil
partnerships under the Act.18
It is submitted that the Domestic Partnerships Bill, 2008 transgresses on the
same score, albeit in opposite form: In the case of the Bill, the provisions of the
Bill create the impression that it caters for both same-sex and opposite-sex
couples, while its preamble conveys a conflicting message. Consider, for
example, clause 17 of the Bill:
Where a child is born into a registered domestic partnership between persons of the
opposite sex, the male partners [sic] in the registered domestic partnership is deemed to
be the biological father of that child and has the legal rights and responsibilities in
respect of that child that would have been conferred upon him if he had been married
to the biological mother of the child.19
The inclusion of the italicised wording ("between persons of the opposite sex")
implies that same-sex domestic partnerships are also possible, as, if the opposite
were true, the italicised words would not have been necessary."
17 See Smith and Robinson 2008(a): 364, 365.
18 At 364,365.
19 Emphasis added.
20 Clause 17 of the Bill can be contrasted with Smith and Robinson's statements regarding section
8(6) of the Civil Union Act 17 of 2006 which states that: /lA civil union may only be registered by
prospective civil union partners who would, apart from the fact that they are of the same sex,
467
Further proof that domestic partnership legislation was not intended to apply to
heterosexual couples only is provided by the South African Law Reform
Commission's Report in which it is made abundantly clear that even if same-sex
marriage were to be legalised, a need would still remain for an alternative to
marriage to enable both same-sex and opposite-sex couples to formalise their
relationships and in so doing to obtain protection over and above that provided
by the law of contract."
Consequently, the inevitable conclusion to be reached is that the preamble to the
Bill needs to be amended. This amendment should reflect the fact that the Bill
provides for both same-sex and opposite-sex couples, and should also-bearing
the fragmented legal position discussed in Chapters 5 and 6 in mind-describe
the extent of legal recognition and protection currently granted to such couples in
a more accurate fashion.22
3.2 Ascertaining the ambit of persons who are covered by the Bill in
greater detail: Age, prohibited degrees and so-called "care partners"
The discussion of the preamble in 3.1 above makes it clear that it can be
accepted that domestic partnerships may be entered into by both same-sex and
opposite-sex couples. According to the definition of "domestic partnership" in
clause 1 of the Bill, both domestic partners are required to be at least 18 years of
not be prohibited by law from concluding a marriage under the Marriage Act or Customary
Marriages Act" (emphasis added). In this case, Smith and Robinson opine that the word "are"
should be replaced with the words "may be" so as to reflect the fact that the Act also caters for
heterosexual couples. In contrast, clause 17 of the Bill does not presuppose that the parties are
necessarily of the opposite sex, but clearly seeks to regulate the circumstances where this may
be the case.
21 SALRC2006: 320. The protection provided by the law of contract was discussed in Chapter 6
above.
22 This could be achieved by amending the relevant portion of the preamble to read "AND NOTING
that there is no comprehensive and consistent legal recognition or protection for same-sex or
opposite-sex couples in permanent domestic partnerships ..."
468
age.23 In addition, only monogamous registered domestic partnership are
permitted and neither of the parties to such a partnership may be married in
terms of applicable marriage legislation or may have entered into a civil
partnershlp." A Court is furthermore prohibited from making an order under the
chapter dealing with unregistered partnerships where a person is also a spouse
in a civil marriage or civil union, or a partner in either a civil partnership or a
registered domestic partnership with a third party." A noteworthy exception in
this regard is the customary marriage, which implies that a relationship involving
a spouse to such a marriage may ostensibly constitute an unregistered domestic
partnershipr"
An analysis of the requirements relating to the prohibited degrees of affinity or
consanguinity reveals an intriguing state of affairs. As far as registered domestic
partnerships are concerned, clause 4(5) of the Bill provides that "[a]ny persons
who would be prohibited by law from concluding a marriage on the basis of
consanguinity or affinity may not register a domestic partnership." The
immediate conclusion to be reached from the words "may not register" is that
while domestic partners who are related within the prohibited degrees will be
precluded from entering into a registered partnership, the same will prima facie
not hold true in the case of an unregistered partnership. This conclusion is
strengthened by the fact that neither the definition of "unregistered domestic
partnership" (namely a "partnership that has not been registered as a domestic
partnership under Chapter 3 of this Act"), nor any provision in chapter 4 of the Bill
contains any restriction similar to clause 4(5).
Before the implications hereof are discussed, it is worth mentioning that in its
2006 Report the South African Law Reform Commission recommended a
23 "[D]omestic partnership" means a registered domestic partnership or unregistered domestic
partnership between two persons who are both 18 years of age or older and includes a former
domestic partnership ..."
24 Clause 4(1) and (2).
25 Clause 26(4).
26 The position of spouses to a purely religious marriage is considered in 11 below.
469
definition of "unregistered partnership" that differed from the one eventually
included in the 2008 Bill. The Commission's proposed definition was the
following:
"unregistered partnership" means a relationship between two adult persons who live as
a couple and are not related by family.
The rationale behind this definition, according to the Commission, was to restrict
such partnerships to conjugal relationships and to leave the regulation of non-
conjugal "care partnerships=" to a "proper study.,,28 This definition later
reappeared in the first Civil Union Bill of 200629 but, as mentioned, was
conspicuously absent from the 2008 Bill.
A few comments may be made in this regard. First, it is submitted that a mere
reference to "family" would not be sufficient to exclude "care partnerships" from
the ambit of the Bill, as such partnerships do not only present themselves in a
family-related context." Nevertheless, the words "not related by family" were
clearly intended not only to exclude care partners, but also to prevent parties who
were related in the prohibited degrees of consanguinity or affinity from alleging
that their relationship constituted an unregistered domestic partnership. (In fact,
an interesting spin-off of the definition proposed by the Commission is that the
unqualified use of the words "related by family,,31would have implied an even
wider exclusion than the prohibited degrees prescribed for a civil marriage, as
27
See 2.1.2.2 in Chapter 4. A useful description of what a "care partnership" involves is provided
by section 5(1)(b) of the New South Wales Property (Relationships) Act of 1984: "A [non-conjugal]
close personal relationship ... between two adult persons, whether or not related by family, who
are living together, one or each of whom provides the other with domestic support and personal
care" (emphasis added). It is interesting to note that the SALRCmistakenly states that the New
South Wales Act restricts such relationships to persons who are not related-see SALRC2006:
241.
28
SALRC2006: 386, 387.
29
[B 26 - 2006]: definition of "unregistered domestic partnership" in clause 1.
30
See section 5(1)(b) of the New South Wales Property (Relationships) Act, 1984 (quoted above).
31
The definition of "family" in clause 1 of the 2006 Bill as "includ[ing] partners in an unregistered
partnership and their dependants" does little to assist in resolving the uncertainty regarding care
partners and persons related in the prohibited degrees.
470
any family relationship would be excluded, such as persons related by affinity in
the collateral line and blood relations who were further than one degree from
their common ancestor.j" Nevertheless, as it stands the 2008 Bill appears to
preclude neither "care partnerships" nor relationships between persons who are
related within the prohibited degrees from being regarded as "unregistered
domestic partnerships."
The (most likely inadvertent) inclusion of the former category is supported due to
the fact that, as the Commission itself states (albeit not in direct reference to non-
conjugal relationships), "one must recognise that there are large numbers of
people in dependence-producing relationships who are ignored by the law.,,33
32 In this regard it is important to note that the New South Wales Property (Relationships) Act 1984
(upon which the SALRC's initial proposals regarding conjugal and non-conjugal relationships were
modelled) specifically defines the concept of a family relationship, while neither the SALRC's
2003 Discussion Paper (see Annexure E) nor the first Civil Union Bill of 2006 did the same.
Section SA of the New South Wales Act describes a "family relationship" thus:
(1) For the purposes of sections 4 and 5, persons are related by family if:
(a) one is the parent, or another ancestor, of the other, or
(b) one is the child, or another descendant, of the other, or
(c) they have a parent in common.
(2) For the purposes of this section:
(a) a person is taken to be an ancestor or descendant of another person even if the
relationship between them is traced through, or to, a person who is or was an
adopted child, and
(b) the relationship of parent and child between an adoptive parent and an
adopted child is taken to continue even though the order by which the
adoption was effected has been annulled, cancelled or discharged or the
adoption has otherwise ceased to be effective, and
(c) the relationship between an adopted child and the adoptive parent, or each of
the adoptive parents, is taken to be or to have been the natural relationship of
child and parent, and
(d) a person who has been adopted more than once is taken to be the child of each
person by whom he or she has been adopted.
(3) In subsection (2), "adopted" means adopted under the law of any place, whether in
Australia or not, relating to the adoption of children."
The same occurs in section 4AA(6) of the Australian Commonwealth Family Law Act of 1975
which states that two persons are "related by family" if "(a) one is the child (including an
adopted child) of the other; or (b) one is another descendant of the other (even if the
relationship between them is traced through an adoptive parent); or (c) they have a parent in
common (who may be an adoptive parent of either or both of them). For this purpose, disregard
whether an adoption is declared void or has ceased to have effect."
33 SALRC2006: 22. In addition, the Bill's apparent provision for care partners appears to be in line
with sentiments expressed by South Africa's highest Court to the effect that the decision not to
engage in sexual intimacy is part and parcel of the entitlement to freedom and privacy, and is
471
Furthermore, it is submitted that the fears expressed by certain respondents to
the effect that attempts to regulate care partnerships may lead to exploitation and
abuse could to some extent be allayed by the fact that no order under chapter 4
could be granted without prior judicial scrutiny of the specific application in
question."
A perusal of foreign legislation which caters for non-conjugal partnerships reveals
that certain restrictions are sometimes prescribed for such relationships. For
example, the New South Wales Property (Relationships) Act, 1984 states that:
[A] close personal relationship is taken not to exist between two persons where one of
them provides the other with domestic support and personal care:
(a) for fee or reward, or
(b) on behalf of another person or an organisation (including a government or
government agency, a body corporate or a charitable or benevolent
organis. atio.n. ) 35
Although these restrictions were also contained in the South African Law Reform
Commission's 2003 Discussion Paper,36 they were presumably removed from the
2006 Report on the assumption that the Commission's modified 2006 proposals
no longer provided for non-conjugal relationships. As was seen above, this
assumption appears to have been erroneous, as there is no provision in the
entire Bill that either excludes non-conjugal relationships from qualifying as
domestic partners nor insists on intimacy as a requirement for their recognition.
In view of the fact that the Bill is capable of being interpreted so as to permit non-
therefore to be supported: See National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs 2000 (2) SA 1 (CC) at par [51] per Ackermann J: "I would even hold [the argument
that procreative potential is a defining characteristic of conjugal relationships] to be demeaning
of a couple who voluntarily decide not to have children or sexual relations with one another; this
being a decision entirely within their protected sphere of freedom and privacy."
34
SALRC 2006: 386: "Concern was furthermore expressed that the legal recognition of care
partnerships may be susceptible to abuse and could lead to exploitation of people in need of
care."
35
Section 5(2).
36
SALRC2003: 320.
472
conjugal care partners related in the prohibited degrees to qualify as unregistered
domestic partners, it is submitted that the restrictions mentioned in the New
South Wales Act pertaining to reward and care by proxy should be reintroduced
into the 2008 Bill. This development would further curb the risk of exploitation
and abuse identified by respondents to the Commission's 2003 proposals."
Another issue that is of importance for the purposes of the instant discussion is
whether the Bill does in fact intend to permit conjugal relationships that fall into
the prohibited degrees of consanguinity or affinity to qualify as unregistered
domestic partnerships. In this regard the first difficulty with the Bill in its current
form is that it in effect countenances the crime of incest. According to the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007, this crime is perpetrated by "persons who may not lawfully marry each
other on account of consanguinity, affinity or an adoptive relationship and who
unlawfully and intentionally engage in an act of sexual penetration with each
other" irrespective of whether or not such an act was consensual." This crime,
although defined with reference to marriage, is not committed by the fact of a
marriage between persons who fall into the prohibited degrees, but is committed
by the sexual activity between such persons." At common law the crime was
limited to an act of heterosexual sexual intercourse (that is to say penetration of
the vagina by the penis)." but the 2007 Act has broadened the scope of the
offence to any form of sexual penetration." It is trite that no dispensation can be
37 See SALRC2006: 386.
38 Section 12(1).
39 Burchell and Milton 2000: 535.
40 Burchell and Milton 2000: 535.
41 Section 1 of Act 32 of 2007 defines "sexual penetration" as including "any act which causes
penetration to any extent whatsoever by-
(a) the genital organs of one person into or beyond the genital organs, anus, or mouth of
another person;
(b) any other part of the body of one person or, any object, including any part of the body
of an animal, into or beyond the genital organs or anus of another person; or
(c) the genital organs of an animal, into or beyond the mouth of another person ...rt
It is interesting to consider that Labuschagne (1990: 424, 425) argues that incest is nothing more
than a "sociological anachronism" and proposes that incestuous sexual relations between adults
473
granted to validate a marriage entered into between persons in the prohibited
deqrees." It follows, from the outset, that the 2008 Bill therefore cannot sanction
conjugal relationships between such persons by regarding them as unregistered
domestic partners.
In determining how this strange state of affairs created by the 2008 Bill came
about, it is insightful to consider the provisions of the legislation proposed in the
Commission's 2003 Discussion Paper as well as the statute upon which these
proposals were seemingly based, namely the New South Wales Property
(Relationships) Act, 1984.
To begin with, the 2003 proposals differentiated between "intimate" and "care"
partnerships, with the difference between the two obviously being based on
conjugality. These proposals correspond with the aforementioned New South
Wales Property (Relationships) Act, 1984 which also differentiates between
conjugal and non-conjugal "domestic relationships", with the former being
referred to as a "de facto relationshtp'r" and the latter as a "close personal
relationship." The Act further distinguishes between these relationships as far as
family ties are concerned by specifically stating that a de facto relationship is one
in which the parties are not "related by family" while it is irrelevant whether
persons involved in a "close personal relationship" are related to one another or
not."
as well as between children should be decriminalised. If anything, it appears as if the 2007 Act
has broadened rather than narrowed the scope of this crime.
42
Loedolf! & Smuts v Robertson and Others (1861-1863) 4 Searle 128 at 146, 147; Hahlo 1985: 70.
43
Italics added.
44
According to section 4(1): "(1) For the purposes of this Act, a de facto relationship is a
relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by family."
Section 5(1) states that: "(1) For the purposes of this Act, a domestic relationship is:
(a) a de facto relationship, or
(b) a close personal relationship (other than a marriage or a de facto relationship) between
two adult persons, whether or not related by family, who are living together, one or
each of whom provides the other with domestic support and personal care."
474
Considering the progression of the South African proposals pertaining to
domestic partnership legislation that have appeared since 2003 and comparing
them with the relevant provisions of the Australian legislation on which they were
based leads to two important conclusions: First, the requirements restricting the
ambit of conjugal unregistered domestic partnerships to those not related by
family appears to have fallen through the cracks during the 2008 Bill's drafting
process; and second, (as explained earlier) the use of the word "family" is
unsuitable in a South African context as it unreasonably widens the degrees of
affinity and consanguinity, with the result that a cross-reference to the restrictions
imposed by marriage (as appears in clause 4 of the Bill) is to be preferred.
Furthermore, as seen earlier in this discussion, the 2008 Bill should in fact cater
for non-conjugal care partnerships irrespective of any family tie that may exist
between the parties thereto. In the light of the conclusions drawn in this
paragraph it is submitted that two additional subsections should be inserted into
clause 26 of the Bill which should state the following:
(6) [A] Court may not make an order under this Chapter regarding a relationship
between two persons who would be prohibited by law from concluding a
marriage on the basis of consanguinity or affinity, unless that relationship was a
non-conjugal relationship in terms of which one person provided the other with
domestic support and/or personal care.
(7) [A] Court may not make an order under this Chapter regarding a relationship
between two persons where one of them provided the other with domestic
support and/or personal care:
(a) for fee or reward, or
(b) on behalf of another person or an organisation (including a government
or government agency, a body corporate or a charitable or benevolent
organisation).
475
As a final note, it is submitted that in view of the fact that it would be impossible
for a Court to make an order under chapter 4 in the case of a conjugal
relationship that offended the prohibited degrees, the only recourse for parties to
such a relationship would be to petition the Court to extend the putative spouse
doctrine to such relationships provided, of course, that at least one of the parties
was of the bona fide belief that their union was legally permissible. This issue is
discussed in greater detail in 5 below.
3.3 Conclusion
Despite the wording of its preamble, the Bill permits both same-sex and opposite-
sex couples to enter into domestic partnerships. While the prohibited degrees of
affinity are clearly applicable in the case of registered domestic partnerships, in
its current form the Bill does not apply the same restriction to unregistered
domestic partnerships; a distinction which, it is submitted, is created by an
oversight on the part of the Legislature that must be corrected so as clearly to
show that conjugal relationships that offend the prohibited degrees do not come
within the ambit of chapter 4 of the Bill. On the flip side of the coin, the Bill
appears-with respect correctly-to permit unregistered domestic partnerships in
the form of so-called "care partners." Regarding the requirement of monogamy,
the Bill appears clearly to require absolute monogamy in the case of registered
partners, while an unregistered partnership may be constituted by a person who
is already a party to a customary as opposed to a civil marriage.
The analysis conducted above merely attempts to set out the framework of the
Bill in its current form with a view to setting the scene for the assessment which
follows. As such, various aspects pertaining to the feasibility of the legal position
described above will be addressed throughout the course of this Chapter.
476
4. THE INTERRELATIONSHIP BETWEEN THE BILL AND THE CURRENT
LEGAL POSITION PERTAINING TO LIFE PARTNERSHIPS
4.1 Introduction
In Chapter 5 the impact of the legalisation of same-sex marriage was considered
on those developments that had been occasioned by the judiciary in respect of
life partnerships prior to the promulgation of that Act. The conclusions reached
were, in the main, based on remarks made by Van Heerden AJ in Gory v Kolver
NO,45 which judgment was delivered at a time when the legalisation of same-sex
marriage was imminent as a consequence of the decision in Minister of Home
Affairs v Fourie.46 To recap, it was concluded that Van Heerden AJ was correct
in holding that the Legislature and the Courts were free to express themselves on
these developments, and that the finding in the Fourie case was not pre-emptive
of legislation pertaining to life partnerships." Furthermore, the learned Judge
also (it is submitted correctly) held that the developments brought about by the
Courts while marriage was denied to gays and lesbians would not be affected
unless legislation expressly demanded this." Sinclair'" appears to agree with
this conclusion when she states that the Court's finding in Gory entails that:
[S]ame-sex couples who do not invoke their right to marry remain protected in terms of
the legislation that formed the basis of the judgments designed to protect those who
could not marry. Heterosexual couples who cohabit but do not marry do not enjoy that
protection. They never did. Unless the legislature intervenes, it seems they never will.
Sinclair's opinion undoubtedly reflects the correct positive law position as created
by the Courts. However, it was ostensibly written prior to the publication of the
45 2007 (4) SA 97 (CC); 2007 (3) BCLR294 (CC).
46 2006 (1) SA 524 (CC).
47 Par (27).
48 Par (28). See the discussion in 3.4.1.1.3 in Chapter 5.
49 2008: 407, 408.
477
2008 draft Domestic Partnerships Bill. The issue that now needs to be
addressed is how the Bill will (if enacted) affect this state of affairs.
It must also be borne in mind that, over and above the pre-Civil Union Act
developments occasioned by the Courts, the Legislature has also played a
significant role in recognising life partnerships (see Chapter 6). The impact of the
coming into operation of specialised domestic partnership legislation on this state
of affairs consequently also needs to be considered.
4.2 Ascertaining the impact of the 2008 Bill on the current legal position
4.2.1 Domestic partnerships vis-a-vis marriage
As seen in 3.1 above, the rationale behind the South African Law Reform
Commission's proposals regarding registered domestic partnership legislation
was to create an institution which would provide an alternative to marriaqe." As
it can therefore be accepted that marriage and domestic partnership are two
distinct institutions, the interrelationship between these two deserves no further
mennen."
4.2.2 Domestic partnerships vis-a-vis pre-Civil Union Act case law
4.2.2.1 The registered domestic partnership
Chapter 3 of the Bill regulates the registered domestic partnership. As its name
dictates, the parties to such a relationship are required to register their
partnership with a designated registration officer, which signifies a "public
commitment" in consequence of which they obtain the protection afforded by the
50
SALRC 2006: 320.
51
The question as to whether a marriage can be converted into a domestic partnership and vice
versa is however briefly considered in 9.4 below.
478
Bill.52 By virtue of this commitment, the relationship assumes a "formal status-
creating" character." which differentiates it from the unregistered partnership.
Therefore, once the parties have concluded a valid registered domestic
partnership, the provisions of chapter 3 of the Bill will govern their relationship
alongside any other legislation (for example tax leqislationj'" that makes specific
provision for unmarried couples. (The position is therefore analogous to that of a
civil marriage, the formation of which is governed by the Marriage Act 25 of 1961
while other legislation such as the Matrimonial Property Act 88 of 1984 and the
Divorce Act 70 of 1979 regulate certain aspects pertaining to its functioning and
termination. )
As such, chapter 3 therefore represents an express attempt by the Legislature to
regulate formalised life partnerships, so that one would assume that the
Legislature has, in keeping with its legislative prerogative, "exercise[d] final
control over the nature and extent of the benefits,,55to which such partners would
be entitled. This notwithstanding, any provision of that chapter could be
subjected to constitutional scrutiny in future on the basis that it infringes the Bill of
Rights. However, at least as far as the pre-Civil Union Act judicial developments
are concerned, it does so happen that all of these developments have at any rate
already been accommodated in the Bill.56 By happy symmetry, therefore, no
52 SALRC2006: 320.
53 See SALRC2006: 322: "The Commission was of the opinion that the registered partnership option
should be available to people who are not involved in a formal status-creating relationship such
as marriage or another registered partnership only" (emphasis added).
54 This refers to the legislation that specifically provides for unmarried couples as analysed in
Chapter 6.
55 Per Ackermann J in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1 (CC)at par [30].
56 The reader is referred to the summary in tabular form at 4.2.2.2 below. Comparing this table to
chapter 3 of the Bill reveals the following: (1) Registered partners owe one another an ex lege
duty of support (clause 9); (2) Registered domestic partners will qualify as "spouses" for the
purposes of the Immigration Act 13 of 2002, provided that they comply with the regulations
prescribed under that Act; (3) The partner of a Judge who is involved in a registered domestic
partnership will qualify as a "partner" for the purposes of the Judges' Remuneration and
Conditions of Employment Act 47 of 2001, provided that they comply with the requirements of
the Act; (4) A surviving registered domestic partner may institute a delictual claim for loss of
support (clause 21); (5) A surviving registered domestic partner may institute a claim for
maintenance from the deceased partner's estate (clause 19); and (6) A surviving registered
479
discrepancies between these developments and the Bill exist; thereby-as will be
seen below-negating the need for the type of analysis required in the context of
unregistered partnerships.
4.2.2.2 The unregistered domestic partnership
The position of the unregistered domestic partnership is more complex. In this
instance it needs to be remembered that under the so-called "judicial discretion
model" adopted by chapter 4 of the Bill it is envisioned that chapter 4 will apply
by default, so as to allow one or both parties to any unregistered partnership that
qualifies as such to "opt-in" by bringing an application to a competent Court." In
the past, such an application was not possible due to the fact that the legislation
in question only catered for spouses to valid marriages; a position that
necessitated the Courts to evaluate the validity of the recognition sought bearing
the fact in mind that the institution of marriage was not available to same-sex
couples.
Before the interrelationship between the developments occasioned by the Courts
and the legal position that will obtain if the 2008 Bill were to be enacted can be
understood, it is first necessary to determine the extent to which the pre-Civil
Union Act judicial extensions are already accommodated by the Bill in its current
form, and thereafter to adjudicate the merits of any discrepancies which remain
unaccounted for. This position is summarised by the following table (Figure 7.1):
domestic partner may inherit intestate from the deceased partner's estate (clause 20). Certain
aspects pertaining to the discrepancies relating to children have been dealt with in Chapter 5 and
will not be considered here. The remaining discrepancies will be dealt with later in this Chapter
(at 12.2.4) when the Children's Act 38 of 2005 is discussed with a view to aligning that Act with
the Bill.
57
SALRC2006: 375 - 379.
480
Case Major relevance of the Similar provision Similar provision Does a
finding in for unregistered in any other discrepancy
contemporary terms domestic partners legislation? exist?
in the Domestic
Partnerships Bill?
1. Langemaat v Reciprocal duty of None None VES
Minister of support exists in same-
Safety and sex life partnerships
Security 1998 (3)
SA 312 (T)
2. National Denial of exemptions to Not req uired Immigration Act 13 NO
Coalition v same-sex life partners of2002
Minister of under Aliens Control Act
Home Affairs 96 of 1991
2000 (2) SA 1 unconstitutional
(CC)
3. Satchwell v Judges' Remuneration Not required Judges' NO
President of the and Conditions of Remuneration and
RSA Employment Act 88 of Conditions of
2002 (6) SA 1 1989 unconstitutional to Employment Act 47
(CC) and 2003 the extent that it did not of 2001 (as
(4) SA 266 (CC) provide for same-sex amended)
couples
4. Du Plessis v Common-law action for No None VES
Road Accident loss of support extended
Fund to same-sex life partners
2004 (1) SA 359
(SCA)
5. Volks NO v Survivor of a Yes (clauses 29 and Not required NO (as there
Robinson heterosexual life 30) was no
2005 (5) BCLR partnership not entitled extension to
446 (CC) to claim maintenance begin with)
from deceased estate
6. Gory v Kolver NO Same-sex life partners Ves (clause 31) Not required NO
2007 (4) SA 97 may inherit intestate
(CC)
7. Du Toit v Min of Same-sex life partners Not required Section 231 of the VES (pending
Welfare and Pop may adopt jointly Children's Act 38 of enactment of
Development 2005 section 231)
2003 (2) SA 198
(CC)
8. J v Director- Lesbian life partner No adequate No adequate VES (unless
General Dept of recognised as parent of protection at protection at amendments
Home Affairs children conceived by present, but present, but suggested in
2003 (5) SA 621 assisted reproduction of problem addressed problem addressed Chapter 5 are
(CC) her life partner in Chapter 5 and in Chapter 5 and enacted)
later in this Chapter later in this Chapter
Figure 7.1 Comparison of the provisions of the Bill with judicial developments
Figure 7.1 shows that a number of discrepancies exist between the pre-Civil
Union Act judicial pronouncements and the legal position that will obtain if the
2008 Bill were to be enacted in its current form. These discrepancies fall into two
481
categories, namely (i) those that relate to the duty of support (numbers 1 and 4)
and (ii) those that relate to children (numbers 7 and 8). As the solution to the
discrepancies relating to children has been dealt with comprehensively in
Chapter 5 and will again be considered in 12.2.4 below, these issues are not
pertinent to the current discussion. Attention will therefore be confined to the first
category (that is to say discrepancies 1 and 4 that both relate to the duty of
support).
4.2.2.2.1 Should these discrepancies be rectified?
The first argument that springs to mind when one considers whether chapter 4 of
the Bill should iron-out discrepancies 1 and 4 is the so-called "choice argument."
In this regard, it will be remembered that the premise underlying the pre-Civil
Union Act judgments was the fact that same-sex couples did not have the option
of marriage available to them, while opposite-sex life partners were not faced
with the same problem." The question that now arises is whether the fact that
this barrier no longer exists should of its own accord preclude the findings in
these cases from being transposed onto the Domestic Partnerships Bill, 2008.
The following considerations should be borne in mind in contemplating the
answer to this question:
(i) Chapter 4 of the Bill was formulated with the express purpose of providing
for those life partners who had either deliberately or unintentionally elected
not to formalise their relationship by way of marriage or civil partnership or
by entering into a registered domestic partnership." As such, it appears
that while the pre-Civil Union Act judgments were based on the premise
that same-sex couples absolutely could not marry, the Bill provides for
situations where the unregistered partners either (deliberately or
unintentionally) chose not to formalise their relationships or where they
58
See Sinclair 2008: 406.
59
SALRC2006: 375.
482
could not do so due to the dynamics of the relatlonship." As far as the
second group is concerned (those who could not formalise their
relationships) it is submitted that any decision as to whether or not the pre-
Civil Union Act judgments are to be extended to unregistered life
partnerships must take cognisance of the fact that the Bill caters for
partners who, due to their unique private circumstances, in effect find
themselves in a position comparable to those who in the past were
absolutely prohibited by law from marrying one another.
(ii) While consideration (i) would thwart the application of the "choice
argument" to those who could not formalise their relationships, the position
of the other category (namely those who chose not to do so) would still
need to be considered. It is submitted that over and above the fact that it
has been opined that "even the most ardent choice made to cohabit
impacts disproportionately upon women and rnen",?' the argument that
this choice should preclude extension is easily disposed of, at least within
the context of need-based claims. This is so because as, proved in
Chapter 5, the "contextualised choice model" dictates that domestic
partnership legislation must give effect to the conclusion which holds that
the "choice-argument" is irrelevant as far as any need-based claim is
concerned. Instead, the only relevant consideration in respect of such a
claim would be whether the parties had undertaken reciprocal obligations
of support.f
60 This could occur where the stronger party to the relationship resisted any attempt or request by
the weaker party to formalise the relationship or convinced such party that formalisation was
unnecessary. In addition, such a partner may, in the words of Sachs J in Volks NO v Robinson
2005 (5) BCLR446 (CC) have contributed "her care and sweat equity" to the relationship which
led to her remaining economically inactive while her partner's estate flourished. As the SALRC
(2006: 369) states "[t]his model is heralded as a way to compensate the weaker partner in a
relationship who may have been exploited by the emotionally or financially stronger partner who
is reluctant to formalise the partnership."
61 Und 2005: 119.
62 See 3.3.2.2 in Chapter 5.
483
(iii) In the light of considerations (i) and (ii) it could therefore be concluded that
it makes no difference whether the unregistered life partners chose not to
or could not formalise their relationships as the "choice argument" is
irrelevant as far as any claim based on need is concerned.
(iv) Nevertheless, as was concluded in Chapter 5, the fact that the "choice
argument" does not apply within the context of need-based claims under
the "contextualised choice model" does not imply that it has no role to play
whatsoever. Instead, the model proposes that the argument could indeed
play a role within the context of property disputes where the parties to a
non-formalised relationship who have chosen not to formalise it attempt to
rely on legislation or common law that regulates the patrimonial
consequences of formalised relationships such as marriages (or, for that
matter, registered domestic partnerships).
(v) A final consideration would be the fact that the pre-Civil Union Act
decisions were made within a different legal context (i.e. one in which
marriage was the only family form that was legally sanctioned) to the one
that will obtain if the Bill were to be enacted. The difference in context
between the position of unregistered partnerships under the Bill and the
life partnerships which formed the subject-matter of pre-Civil Union Act
litigation would be that in the case of the former group the Courts would
automatically be vested with powers by empowering legislation that is
tailor-made for non-formalised relationships, while the Courts in the latter
category were constrained to read words into statutes that were designed
with spouses and not life partners in mind. The fundamental question
then would be to determine whether there was a difference between a
need-based claim in the context of the pre-Civil Union Act judgments
(which were based on extending the law of marriage) versus a similar
claim in the context of an unregistered life partnership in terms of the Bill.
The answer to this question is fairly obvious in view of the analysis
484
conducted throughout this study: Provided that a reciprocal duty of support
existed between the parties to the relationship, the partners should in
principle be permitted to enforce any need-based claim between
themselves irrespective of the nature of their relationship (i.e. irrespective
of whether it is a non-formalised life or domestic partnership or a purely
religious marriage).
From these remarks it becomes clear that there is in principle no sound reason
for the Bill not to make provision for any need-based claim that was extended to
life partners by any pre-Civil Union Act judgment. The only exception to this
finding would-in line with Van Heerden AJ's remarks in Gory v Kolver N063-be
where the Legislature expressly (and moreover justifiably) intended to retract or
modify any such extension.
In the light of these conclusions, discrepancies 1 and 4 can now be analysed
individually, with a view to ascertaining whether or not the Bill is in need of being
modified.
a) Discrepancy 1: The reciprocal duty of support
As seen in Chapter 5 the common law does not create or impose a legal duty on
unmarried persons to support one another." However, in Langemaat v Minister
of Safety and Securitl5 Roux J made the ground-breaking statement that
"[p]arties to a same-sex union, which has existed for years in a common home,
must surely owe a duty of support, in all senses, to each other.,,66 Although our
Courts have confirmed that no such duty exists by operation of law,67they have
63
2007 (4) SA 97 (CC) at par [28).
64
SALRC 2006: 395.
6S
1998 (3) SA 312 (T).
66
At 316 (H) - (I).
67 Volks NO v Robinson 2005 (5) BCLR 446 (CC) at par [56); Du Plessis v Rood Accident Fund 2004 (1)
SA 359 (SCA) at par [12).
485
been prepared to infer the existence of such a duty in case law involving same-
sex life partners."
In its 2006 Report the South African Law Reform Commission concluded that the
judicial discretion model could not support the creation of an ex lege duty of
support between unregistered domestic partners." The Commission based this
conclusion on the ratio of the finding of the majority of the Court (per Skweyiya J)
in Volks NO v RObinson,7o which, according to the Commission, was "that no
duty of support arises by operation of law in the case of unmarried cohabitants,
and thus no duty to maintain the surviving partner could be passed on to the
estate of the deceased.:" However, in Chapter 5 ante the submission was made
that the majority of the Court in the Volks case had not paid sufficient attention to
the enforceability and robustness of the contractual (as opposed to ex lege) duty
of support in permanent life partnerships in contemporary South Africa.72
Furthermore, it was suggested that Skweyiya j's ratio would have fallen away if
the Court had-as had already been done in the same-sex cases73-appreciated
68
See for example Gory v Kolver NO and Others 2006 (5) SA 145 (T) at par (18); Satchwell v
President of the Republic of South Africa 2002 (6) SA 1 (CC) at par (25); Du Plessis v Road Accident
Fund 2004 (1) SA 359 (SCA) at par (11) - (16). As was pointed out in Chapter 5, it is submitted
that the Courts erred by not inferring the existence of mutual support obligations on the facts in
Volks NO v Robinson 2005 (5) BCLR446 (CC).
69
"With the dismissal of the de facto option the possibility of extending the common-law duty of
support to unregistered partners also had to be dismissed" -see SALRC2006: 397 (italics added).
70 2005 (5) BCLR446 (CC).
71
SALRC 2006: 397. The Commission refers to paragraphs [56) and (60) of Skweyiya J's judgment.
These paragraphs read as follows: "[56) The distinction between married and unmarried people
cannot be said to be unfair when considered in the larger context of the rights and obligations
uniquely attached to marriage. Whilst there is a reciprocal duty of support between married
persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The
maintenance benefit in section 2(1) of the Act falls within the scope of the maintenance support
obligation attached to marriage. The Act applies to persons in respect of whom the deceased
person (spouse) would have remained legally liable for maintenance, by operation of law, had he
or she not died" and "(60)1 conclude that it is not unfair to make a distinction between survivors
of a marriage on the one hand, and survivors of a heterosexual cohabitation relationship on the
other. In the context of the provision for maintenance of the survivor of a marriage by the estate
of the deceased, it is entirely appropriate not to impose a duty upon the estate where none
arose by operation of law during the lifetime of the deceased. Such an imposition would be
incongruous, unfair, irrational and untenable."
72
See 3.3.1.2 in Chapter 5.
73
See note 68 above.
486
the fact that the facts in casu clearly supported the inference of the existence of
such a duty during the existence of the relationship between the survivor and the
deceased. As the survivor's claim was need-based in nature, giving effect
thereto would simply have required the logical extension of a duty which already
existed inter vivos beyond the deceased's death. The crucial point, however,
was that this study has found that the legislation drafted according to the
domestic partnership rubric requires the fact to be acknowledged that the
existence of a reciprocal duty of support is a sine qua non for the permissibility of
this and any other similar need-based claim within the context of domestic
partners under the Bil1.74
It is submitted that the South African Law Reform Commission also overlooked
these facts. This much becomes evident when one considers their proposal as
far as a claim for maintenance after the termination of an unregistered domestic
partnership is concerned:
The Commission recommends that a limited statutory right to maintenance be available
to former partners in unregistered partnerships after separation or death. A Court can
consider the merits of an application for such an order after it has concluded that the
couple has indeed lived as a couple under clause 25.75
The Legislature's lapse in reasoning surfaces when one considers that neither
clause 28 of the Bill ("Application for maintenance order after separation") nor
clause 29 thereof ("Application for a maintenance order after death of
unregistered domestic partner") make any reference whatsoever to the need for
the parties to have undertaken mutual support obligations while the relationship
existed. As such, the Commission as well as the Legislature appear to have lost
sight of the fact that it is not possible to extend something which has not been
found to exist in the first place. In consequence, the Commission's proposal as
74 See 3.3.1.2 in Chapter 5.
75 SALRC2006: 401. The reference to "clause 25" appears to have been made in error. The correct
reference should have been to clause 26 of the legislation proposed in Annexure E of the Report.
487
embodied in the Bill not only implies that the sine qua non for such an extension
is not complied with, but in fact contradicts the very ratio of the decision on which
it was based in the first place!"
As far as the issue of "formal public comrnitrnent''" is concerned, while the
absence hereof may be sufficient to prevent an ex lege duty of support arisinq."
there can certainly be no question of such a commitment being required in order
to establish a contractual reciprocal duty of support between life partners, as the
existence of such a duty is simply a question of fact.7g
In conclusion, the fact that the Commission concluded that no reciprocal duty of
support would be imposed by operation of law on unregistered domestic
partnerships can be supported. However, the failure to appreciate the pivotal
nature of a contractual duty within the context of all need-based claims cannot.
The need for amendments to the Bill in this regard will be discussed later in this
Chapter."
b) Discrepancy 2: The development of the common law claim for loss of
support
In Du Plessis v Raad Accident Fund B1 the Supreme Court of Appeal (per Cloete
JA) extended the dependant's claim for loss of support to "a same-sex partner of
the deceased in a permanent life relationship similar in other respects to
76
The same criticism can be levelled at clause 31 of the Bill, which provides for intestate
succession. Such a claim-which, as seen in Chapter 5 is also a need-based claim- similarly
demands the existence of a reciprocal duty of support as a sine quo non thereof.
77
See SALRC2006: 395, 396.
78
See par 10.3.12 of the SALRC's2003 Discussion Paper.
79
This much becomes clear from a perusal of the same-sex life partnership cases where the
existence of such a duty was readily inferred despite the fact that there was no form of "formal
public commitment" because, although any form of ceremony (such as a so-called "commitment
ceremony") involving such partners fulfilled the requirement of publicity, such ceremonies were
not "formal" because they were legally invalid. Despite this invalidity, the public nature of the
commitment has been of assistance in proving the permanence of the relationship and the
existence of a reciprocal duty of support-see for example Gory v Kolver NO and Others 2006 (5)
SA 145 (T) at par [18] and Du Plessis v Raad Accident Fund 2004 (1) SA 359 (SCA) at par [14].
80 See 11 below.
81
2004 (1) SA 359 (SCA).
488
marriage, in which the deceased had undertaken a contractual duty of support to
[such partner].,,82
In respect of registered domestic partners, clause 21 (2) of the 2008 Bill provides
that the fact that the partners were not married to one another will not preclude
the surviving partner from instituting a delictual claim based on the wrongful
death of the deceased. However, as far as unregistered partners are concerned,
the Bill does not provide for a similar claim. The issue as to whether or not this
discrepancy should be rectified is made all the more vexing when one considers
that, on the interpretation in Gory v Kolver NO,83 if the Bill were enacted in its
current form, the decision in Du Plessis would still stand. This would not only
imply that all same-sex couples who complied with the requirements set out by
Cloete JA in the former case would be able to institute such a claim regardless of
whether or not they had entered into a registered domestic partnership, but also
that the anomaly identified by Cronjé and Heaton'" would persist in that
heterosexual unregistered partners would have no similar claim.
It goes without saying that the dependant's claim for loss of support is a need-
based claim. In light hereof, it is submitted that the same criticism that was
levelled regarding discrepancy 1 is relevant here: The Bill loses sight of the fact
that such a claim-as a need-based claim-requires only that the partners to the
permanent union have undertaken reciprocal support obligations in order for it to
be instituted. As was the case with the claims discussed in discrepancy 1, the
existence of a "public formal commitment" is as irrelevant for the unregistered
partners as it was for the same-sex couple in the Du Plessis case." As before,
82 Par [42].
83 See par [27] - [31] of the case, the gist of which is briefly discussed in 4.1 above.
84 2004: 232: "[E]ven if heterosexual life partners contractually undertake a duty of support, the
surviving heterosexual life partner does not have a claim for damages for loss of support, while a
surviving same-sex life partner has such a claim."
85 Although the couple in Du Plessis had attempted to "marry" one another, such a "marriage" was
obviously invalid-see note 79 above regarding the "formal public commitment" requirement.
489
the need for amendments to the Bill in order to remedy this discrepancy will be
discussed later in this Chapter."
4.2.2.2.2 Conclusion
It has been established that both discrepancies 1 and 2 require the Bill to be
amended. This will take place in paragraph 11 of this Chapter, where the
position of the unregistered domestic partnership is considered in extenso. (As
seen in Figure 7.1 discrepancy 7 will be rectified by the enactment of section 231
of the Children's Act 38 of 2005, while discrepancy 8 was addressed in Chapter 5
of this study.)
4.2.3 Domestic partnerships vis-a-vis pre- and post Civil Union Act legislation
It will be recalled that the final phase of the domestic partnership rubric involves
the alignment of the modified Domestic Partnerships Bill of 2008 with other
legislation that deals with life or domestic partnerships. For the sake of
complying with the procedure prescribed for the rubric, this facet of the rubric will
be dealt with towards the end of this Chapter (paragraph 12). For now it will
suffice to say that a significant number of Acts will need to be aligned with the
Bill. It is important to note, however, that the calibration process does not only
involve the alignment of legislation that already provides for life partnerships with
the Bill, but may also necessitate the amendment of other Acts (such as the Wills
Act 7 of 1953) that do not currently provide for domestic partnerships so as for
them to be aligned with the modified Bill.
86
See 11 below.
490
5. ASSESSING THE NEED FOR THE MODIFICATION OF THE FORMAL
AND SUBSTANTIVE REQUIREMENTS FOR ENTERING INTO AND
RECOGNITION OF DOMESTIC PARTNERSHIPS AND INVESTIGATING
THE ROLE (IF ANY) TO BE PLAYED BY THE PUTATIVE SPOUSE
DOCTRINE
In Chapter 6 the question was posed as to whether or not the putative spouse
doctrine'" could be applied in a contextualised form to regulate the position
where parties have entered into a domestic partnership that is null and void. This
question is relevant not only as far as the patrimonial consequences of such a
partnership are concerned, but also where children are involved. The
investigation into this possibility is important as it may expose a number of
weaknesses in the Bill regarding the regulation of domestic partnerships that are
defective (as opposed to null and void). These issues will be examined in the
paragraphs that follow.
5.1 Can the putative spouse doctrine in principle be applied to
relationships other than marriage?
5.1.1 Introduction
As South African law does not currently have any legislation dealing with
domestic partnerships per se,88 it stands to reason that our Courts have not yet
87 A so-called putative marriage exists in the instance where one or both parties to a marriage that
is null and void in good faith believe it to be valid. The purpose of the doctrine is to avoid the
harsh consequences of a void marriage by protecting the bona fide spouse or spouses as far as
the patrimonial consequences are concerned and by preventing the offspring of such a
"marriage" from being regarded as born of unmarried parents-see Sinclair and Heaton 1996:
404 et seq; Moola and Others v Aulsebrook NO and Others 1983 (1) SA 687 (N) at 693 (G) - (H); W
v 5 and Others (1) 1988 (1) SA 475 (N) at 484 (I) - 485 (B) and M v M 1962 (2) SA 114 (GW) at 17
(H).
88 It will be recalled that the Civil Unian Act 17 of 2006 provides for both marriages and for civil
partnerships to be concluded. As both of these options are identical in law to civil marriages
under the Marriage Act 25 of 1961 (see section 13(1) of Act 17 of 2006) they do not exist
491
been faced with the question as to whether the putative spouse doctrine could be
applied within the context of such partnerships. This question has however
arisen in the American Courts, and it is submitted that the case in question could
be of assistance for the purposes of this study.
In Ellis v Arriaga89 the 4th Appellate District of the California Court of Appeal was
confronted with the question as to whether the putative spouse doctrine applied
to domestic partnerships. In casu, the requisite declaration of domestic
partnership had been signed and notarised, but was never filed with the
California Secretary of State as required by section 298 of the California Family
Code. An appeal was lodged against the Trial Court's conclusion that the
doctrine could not apply to domestic partnerships.
On appeal, the Court held that the question to be resolved involved the
interpretation of the California Domestic Partner Rights and Responsibilities Act
of 2003;90 a statute that had greatly narrowed the erstwhile distinction between
spouses and domestic partners." The approach towards interpreting the statute
was, according to Fybel J's unanimous judgment, to construe the language "in
the context of the statute as a whole and the overall statutory scheme, and we
give 'significance to every word, phrase, sentence, and part of an [A]ct in
pursuance of the legislative purpose. ",92
On the basis of the fact that a Court was enjoined by the statute itself to interpret
it in a liberal fashion'" and, moreover, that the Act's stated purpose was to extend
"all the rights, benefits and obligations" of marriage to such partners, it followed
independently of marriage and the putative spouse doctrine will, by virtue of section 13(2), apply
to a marriage or civil partnership concluded under the 2006 Act.
89 162 Cal.App. 4th 1000; 76 Cal.Rptr.3d 401.
90 At 403.
91 At 405.
92 At 403 (emphasis added). As will be seen below (at 5.1.2), this approach is consistent with the
approach adopted by the South African Courts.
93 Chapter 421, statutes 2003 (section 15) "This act shall be construed liberally in order to secure to
eligible couples who register as domestic partners the full range of legal rights, protections and
benefits, as well as all of the responsibilities, obligations, and duties to each other, to their
children, to third parties and to the state, as the laws of California extend to and impose upon
spouses."
492
that the putative marriage doctrine-which did not fall into the category of rights
and obligations which the statute was not empowered to extend (namely those
extended to marriage by federal law, the California Constitution and initiative
statutes)-could in principle be applied to improperly registered domestic
partnerships." This finding was strengthened by section 299(d) of the Code that
provides that in the dissolution of a domestic partnership, the same procedures
shall be followed as in the dissolution of a marriage, and that the parties thereto
"shall possess the same rights, protections, and benefits, and be subject to the
same responsibilities, obligations and duties" as apply to the termination or
annulment of a marriage.95 In addition, earlier case law96 had established the
fact that domestic partners were "the equivalent of spouses" and were not to be
discriminated against in favour of married couples." Finally, the Court concluded
that another earlier decision of the same Court (Ve/ez v Smith)98 was incorrectly
decided to the extent that that Court had held that the putative spouse doctrine
could not be applied within the context of domestic partnerships."
5.1.2 Could the reasoning in Ellis apply in South Africa?
In order to answer this question, it is necessary to consider both the similarities
and differences between the positions in California and in South Africa. As far as
the differences are concerned, two immediately become evident:
• First, the contexts within which domestic partnership legislation in
California was, and in the case of South Africa stands to be promulgated,
differ. In California, same-sex marriages are not currently permitted,100
with the result that the registered domestic partnership is the only way in
which these relationships can be recognised and protected. Bearing this
94 At 403 and 405.
95 At 406.
96 Koebke v Bernardo Heights Country Club (2005) 36 Cal.4th 824.
97 At 405, 406.
98 (2006) 142 cal.App.a" 1154.
99 At 407 - 410.
100 See note 178 in Chapter 6.
493
in mind, it may well be correct to state that California is an example of a
legal system where domestic partnerships replace marriage at least as far
as same-sex couples are concerned.'?' On the other hand, the Civil
Union Act 17 of 2006 has made same-sex marriage a reality in South
Africa, and, furthermore, has clothed marriages (or civil partnerships)
concluded under that Act and marriages concluded under the Marriage
Act of 1961 with identical status in law.102 Consequently, while it may be
true that the purpose behind the promulgation of the Californian statute
was "to equalize the status of registered domestic partners and married
couples", the same might not hold true for the South African domestic
partnerships legislation as the Civil Union Act provides the means by
which such equivalent status can be obtained. The enactment of same-
sex marriage legislation in South Africa therefore meant that the domestic
partnership would in future serve as a "proper alternative" to marriage that
was accessible, affordable and provided rights that were enforceable
against third partles.l'" This notwithstanding, any differentiation between
married and unmarried couples could always be subjected to
constitutional scrutiny on the basis that it discriminated unfairly on the
ground of marital status (for example) and therefore violated the equality
clause as contained in section 9 of the Constitution, 1996. Caution should
therefore be exercised in assuming that domestic partnerships are not
entitled to any consequence of marriage that has not explicitly been
extended to them by way of domestic partnership legislation.
• A second consideration pertains to the consequences ascribed to the
putative spouse doctrine in California vis-a-vis South Africa. In Californian
law, it is clear that the "quasi-marital property" of a putative marriage is
dissolved in the same way as a valid marriage and that, in the case of a
polygamous union, a putative spouse has the same rights as a legal
101
See SALRC2006: 320.
102
See section 13 of the Act.
103
SALRC2006: 320.
494
spouse provided that either or both are bona fide in their belief that the
marriage is valid."?'
By contrast, in South African law, the doctrine of the putative marriage as
it currently stands only provides for children born of such a union to be
regarded as having been born of married parents.l'" and for the
patrimonial consequences of such a "marriage" to be interpreted in favour
of the bona fide spouse. Over and above these exceptions to the general
consequences of voidness, it has been suggested (but not yet confirmed)
that a bona fide putative spouse may be entitled to inherit intestate.l'" and
to claim maintenance provided to, and to retain maintenance benefits
received from, the mala fide spouse.'?' Furthermore, in the only case to
date involving the patrimonial consequences of a bigamous "marriage"
that was concluded in good faith, our Courts have failed to recognise any
patrimonial consequences as far as the "second" marriage in community
of property was concerned.l'" As seen in Chapter 6 it is submitted that
this case was incorrectly decided, and that the common law should have
been developed in order to come to the aid of the bona fide second
"spouse." However, as the law stands, it is clear that the legal position in
California differs considerably from that in this country.
On the other hand, there are cogent reasons for suggesting that the rationale in
Ellis could provide valuable guidance to the South African Courts if they were to
be confronted with the same question:
The Court's purposive and contextual approach to the interpretation of the
California Domestic Partner Rights and Responsibilities Act is consistent
104 Wallace 2003: 99. Also see Figure 6.1 in Chapter 6.
105 See 2.2.3 in Chapter 4 where this consequence is presumed.
106 Sinclair and Heaton 1996: 409; Hahlo 1985: 115, 116.
107 Visser and Potgieter 1998: 70, 71.
108 SeeZulu v Zulu 2008 (4) SA 12 (D), discussed in extenso in Chapter 6.
495
with the approach to statutory interpretation that prevails in South African
CourtS·,109
• The premise underlying the Domestic Partnerships Bill, 2008 as gleaned
from its preamble is to give effect to the rights of equality and to provide
legal recognition to "permanent domestic partnerships."!"? The stated
objects of the Bill are to "ensure the rights of equality and dignity" and to
"reform family law" so as to align it with the Bill of Riqhts.!" This is
consistent with the object of the California statute which "is intended to
help California move closer to fulfilling the promises of inalienable rights,
liberty, and equality contained in Sections 1 and 7 of Article 1 of the
California Constitution ... ";112
• Although the Bill does not do so as comprehensively as its American
counterpart.!" it extends many of the invariable consequences of civil
marriage to domestic partners;
• As was the case with the Californian legislation, the Domestic
Partnerships Bill will, if enacted, also "change the entire manner in which
rights are granted to and responsibilities are imposed on ... domestic
partners"; 114 and
• Finally, in the light of the preceding points, it is submitted that in a South
African context there would also simply be "no sound reason" to deprive a
person who was of the bona fide belief that he or she was involved in a
valid (registered or unregistered) domestic partnership of even the minimal
protection which the putative spouse doctrine affords to a bona fide
"spouse" to a valid marriage.
109
See Smith and Robinson 2008(a): 363 et seq.
110
As seen in 3.1 above, the reference to "opposite-sex couples" in the Preamble needs to be
amended so as to include same-sex couples.
ill
Clause 2.
112
See section l(a).
113
See in particular section 4 of the Act that amended section 297.5(a) of the California Family Code
to read "Registered domestic partners shall have the same rights, protections, and benefits, and
shall be subject to the same responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules, government policies, common law,
or any other provisions or sources of law, as are granted to and imposed upon spouses."
114
At 405.
496
5.1.3 Preliminary conclusion
Weighing up the considerations for and against applying the rationale in Ellis to
the Domestic Partnerships Bill makes it clear that although the purpose of the
South African Bill is not to extend identical rights to domestic partners as to their
married counterparts, there can be no doubt that the Bill (at the very least) does
attempt to provide an equally effective (if not identical) means of regulating the
consequences of such relationships.
5.2 Applying these principles to domestic partnerships under the
Domestic Partnerships Bill, 2008
In order to investigate the possible effect of the putative spouse doctrine on
domestic partnerships, it is first necessary to determine what the precise effect of
non-compliance with the provisions of the Bill will be so as in turn to ascertain
which specific grounds will lead to voidness, as in South African law the doctrine
only applies to a void rnarriaqe.!"
5.2.1 Grounds that do not (presently) 116 nullify the domestic partnership ab initio
under the Bill
5.2.1.1 Non-registration I defective registration of a domestic partnership
The situation where parties have entered into a domestic partnership that has
either (i) never been registered or (ii) been registered in a defective fashion
presents a problem. Firstly, the Bill itself does not indicate what the
consequences of non- or defective registration would be. Furthermore, the
unique legal position created by the Bill implies that the analogous circumstances
that present themselves in the case of a civil or customary marriage (where non-
115 In Californian law, for example, the putative spouse doctrine applies to void and voidable
marriages-see section 2251(a) of the California Family Code.
116 In other words, instances in which the Bill in its current form does not impose nullity.
497
or defective registration does not affect the validity of the marriage) 117 are of no
assistance. This is because the validity of the domestic partnership is not really
the issue. However, compliance with the registration requirement is all-important
because registration symbolises a "formal cornrnltment"!" and therefore
constitutes the very mechanism by which the statute determines which one of the
two options has been selected by the partners. Therefore, while the validity of
the domestic partnership is not the issue, its classification as either "registered"
or "unregistered" is. Consequently, if a domestic partnership has not been
registered in accordance with chapter 3 of the Bill, the effect will simply be that it
is regarded as an unregistered domestic partnership under chapter 4 (provided,
of course, that it complies with the validity requirements prescribed by the latter
chapterj.!"
Bearing the considerable differences between the legal effects of registered and
unregistered partnerships in mind, this consequence may be particularly harsh in
the event of one or both of the parties to such a partnership in good faith
believing it to have been properly registered while this was not in reality so.
Indeed, although non- or defective registration of the partnership would not imply
that the partnership is void, the fact that it is deemed to be "unregistered" would
be tantamount to voidness in as far as the consequences that would have
ensued if it had been a registered domestic partnership are concerned. For
example, both partners to such an unregistered partnership would no longer
automatically have the right to occupy the family home, and the non-owner or
non-lessee would no longer have the right not to be evicted therefrom.F'' The
position sketched above would be just as harsh if the non- or defective
registration was due to the bona fides of the State official, who, for example, in
good faith believed that he was competent to register the domestic partnership
while this was not truly the case.
117 See Cronjé and Heaton 2004: 39; Sinclair and Heaton 1996: 358; section 4(9) of the Recognition
of Customary Marriages Act 120 of 1998.
118 SALRC2006: 364.
119 See definition of "unregistered partnership" in clause lof the Bill.
120 Clause 11(1) and (2) of the Bill.
498
In order to remedy this state of affairs, it is submitted that a provision should be
inserted into clause 8 of the Bill that is similar to the condoning provisions
included in the Marriage Act 25 of 1961.121 Such a clause could read:
Where the registration requirements of this Chapter have not been complied with due
to an error, omission or oversight committed in good faith by the registration officer or
other official involved in the registration process or by one or both domestic partners, a
competent Court may, provided that the domestic partnership is lawful in all other
respects contemplated by this Chapter, direct that such partnership was a registered
partnership as from a date which the Court deems appropriate, taking into account the
interests of the partners themselves, any child or children born of that domestic
partnership, any interested parties and any other relevant factors.
If legislative intervention does not take place, the question then arises as to
whether the putative spouse doctrine could come to the aid of such a domestic
partner. The answer to this appears to be in the negative, due to the fact that
non-compliance with the registration requirement does not result in an invalid
domestic partnership. As far as the proprietary consequences of the partnership
are concerned this is probably just as well, because even a partner who in good
faith believed the partnership to be properly registered would-under the position
that will obtain if the partnership is regarded as an unregistered partnership-find
him or herself in a better position by virtue of the consequences created in
chapter 4 of the Bill (maintenance, property sharing, intestate succession) than
he or she would have been if the putative spouse doctrine were applied strictu
sensu, as the remedial effect of the latter doctrine does not currently provide
such extensive protection.F"
However, in as far as the children born into such a relationship are concerned, if
the consequences of non-compliance with the registration requirement were not
121 See for example section 6 and section 30 of the Act.
122 A bona fide "spouse" would, for example, have no claim for maintenance from a void marriage-
see Visser and Potgieter 1998: 71 and 5.1.2 above.
499
rectified by the legislative insertion suggested above, this would imply that clause
17 of the Bill123 would not be applicable with the result that the male partner
would no longer be deemed to be the biological father of the children. Such a
child would then be deemed to have been born of unmarried parents, which
would result in only his or her biological mother having automatic parental
responsibilities and rights and the father having to acquire the same in terms of
section 21 of the Children's Act 38 of 2005. Such a situation would clearly be
both unnecessary and illogical.
These considerations serve to indicate the necessity of the insertion to clause 8
proposed above.
5.2.1.2 Prohibited degrees of affinity or consanguinity
In 3.2 above it was pointed out that while the Bill expresses itself clearly on the
issue of the prohibited degrees of affinity as far as registered domestic
partnerships are concerned, it contains no similar requirement in the case of
unregistered domestic partnerships. If this analysis is correct, it would follow that
non-compliance with clause 4(5) of the Bill124 would lead to the consequences as
set out in chapter 4 of the Bill becoming applicable, so that a party to such an
"invalid" registered domestic partnership would be entitled to the protection set
out in chapter 4 (that includes claims for maintenance, property sharing, intestate
succession etc). This would further imply, as was the case in scenario 5.2.1.1
above, that a partner who in good faith believed the registered domestic
partnership to be valid would, under the position created by the unregistered
partnership, find him or herself in a better position than he or she would have
been even if the putative spouse doctrine could have been applied, as the
remedial effect of the latter doctrine does not currently extend as far.
123
Quoted in 3.1 above.
124
"Any persons who would be prohibited by law from concluding a marriage on the basis of
consanguinity or affinity may not register a domestic partnership."
500
Even though this strictu sensu is what the Bill in its current format entails, it has
been shown earlier in this study that the Bill's failure to regulate the position
regarding the prohibited degrees of affinity within the context of the unregistered
domestic partnership cannot be countenanced, as the Bill should reflect the fact
that any conjugal relationship that is entered into while offending the prohibited
degrees cannot be sanctioned by the law and is void, with the result that it would
be impossible to obtain an order under chapter 4 of the Bill in such
circumstances. Nonetheless, as far as the proprietary consequences of such a
relationship are concerned, it is submitted that if the Legislature were to broaden
the scope of chapter 4 in the manner advocated, this could be the perfect
situation for the Courts to extend the putative spouse doctrine along the lines
proposed in the discussion of Zulu v Zulu125 in Chapter 6, provided, of course
that at least one of the "unregistered partners" was genuinely unaware of the
illegality of their union.
A further interesting situation presented by a "registered" domestic partnership
that contravenes the prohibited degrees of affinity arises in respect of the
children of such a relationship. In this regard an intriguing state of affairs
presents itself in that, even if the strictu sensu application of the Bill in its current
form described above were correct (id est that the partners find themselves in a
better position than the "spouses" to a putative marriage) the child of such a
relationship would be regarded as having been born of unmarried parents, with
the result that his or her father could only acquire full parental responsibilities and
rights in respect of the child after complying with section 21 of the Children's Act
38 of 2005. It is submitted that this consequence is problematic when it is
considered that:
(i) The registration process is viewed as an indication of the partners' "formal
commitment" to the consequences of a valid registered domestic
125 2008 (4) SA 12 (D).
501
partnershtp.l'" in much the same way as the marriage ceremony indicates
the spouses' "formal commitment" to the consequences of a valid
marriage;
(ii) One of the consequences of such a valid registered partnership would (as
in the case of the male spouse to valid marriage) be that the male partner
is deemed to be the father of that child and that he has the concomitant
rights and responsibilities in respect of him or her;
(iii) However, despite the same "formal commitment" leading to the same
intended legal consequences, the law would still differentiate by
recognising putativity in the case of a void "marriage" between parties
within the prohibited degrees where one or both "spouses" were bona
fide,127while not allowing the same in the case of a "registered" domestic
partnership simply because the latter was not null and void but instead
was "transformed" into an unregistered partnership; and
(iv) Although it is true that this "transformation" rescues the partnership from
voidness, this does not change the fact that such "transformation" is in fact
tantamount to voidness in as far as the consequences that would have
ensued if it had been a registered domestic partnership are concerned.
It is submitted that a combination of considerations (i) to (iv) indicates that this
position may constitute unfair discrimination not only on the ground of marital
status, but that it might also unfairly infringe upon the child's best interests. If this
argument were to be brought to the attention of the Courts it is submitted that a
further development of the common law putative marriage doctrine would be
appropriate.
The conclusion to be reached from scenarios 5.2.1.1 and 5.2.1.2 above is that
the grounds that will lead to a marriage being void ab initio (such as the
prohibited degrees of affinity) do not have the same effect on registered or
126
See SALRC2006: 364.
127
See for example M v M 1962 (2) SA 114 (GW).
502
unregistered domestic partnerships under the Domestic Partnerships Bill, 2008.
This is chiefly because of the fact that the Bill provides for an interplay between
the two forms of domestic partnership, resulting in the "unregistered" option
complying with the rubric's requirement by providing catch-all relief, thereby
avoiding nullity and hence-at least as far as the patrimonial consequences of
the termination of the partnership are concerned-obviating the need for the
theoretical application of the putative spouse doctrine. Consequently it becomes
clear that this doctrine will only possibly have a role to play in two instances,
namely (i) where children are born to partners related within the prohibited
degrees and (ii) to regulate the patrimonial consequences of the termination of a
union that does not qualify as any form of "domestic partnership" with the result
that it is null and void ab initio for the purposes of the Bil1.128
5.2.2 Grounds that do lead to nullity under the Bill
5.2.2.1 "Polygamous" or "bigamous" domestic partnerships
As far as registered domestic partnerships are concerned, clause 4(1) and (2) of
the Domestic Partnerships Bill states the following:
(1) A person may only be a partner in one registered domestic partnership at any
given time.
(2) A person who is-
(a) married under the Marriage Act;
(b) married under the Recognition of Customary Marriages Act; or
(c) a spouse or partner in a civil union,
may not register a domestic partnership.
The corresponding provision regulating the position where an unregistered
domestic partnership exists is clause 26(4), which reads as follows:
128
In other words a union that is neither a registered nor an unregistered domestic partnership.
503
A court may not make an order under this Act regarding a relationship of a person who
at the time of that relationship, was also a spouse in a civil marriage or a partner in a
civil union or a registered domestic partnership with a third party.129
Clause 4 makes it abundantly clear that a person who is married in terms of
South African marriage legislation or who has concluded a civil partnership may
not register a domestic partnership, and that only monogamous registered
partnerships are permitted. Consequently, it is clear that non-compliance with
this requirement will result in an absolute bar on registering the partnership. The
clause does however pose a rather serious interpretative predicament regarding
purely religious marriages that have not been solemnised in terms of the
mentioned legislation (for example parties to a Hindu marriage) in that it is silent
on whether persons involved in such "marriages" are also not permitted to
register a domestic partnershrp.!"
As the clause stands, the following consequences could conceivably ensue:
(i) Subsections (1) and (2) of clause 4 appear to permit "spouses" to
monogamous purely religious marriages to register domestic partnerships,
with the result that if A and B are "married" to one another according to a
system of religious law, they may register a domestic partnership between
themselves.
129
This clause does not apply where customary marriages are involved or where marriages have
been concluded according to a system of religious law (so-called "purely religious 'marriages"').
In addition, the reference in the clause to "Act" appears to be an oversight which should be
corrected to read "Chapter."
130
Here it is interesting to note that subsection (2) of the clause proposed by the South African Law
Reform Commission simply stated that "[a) married person may not register a partnership"
(emphasis added). The wording "married person" casts the net wider than the clause formulated
in the Bill, with the consequence that the Commission's formulation would presumably include
persons who have concluded a purely religious marriage, with the result that such couples would
not be permitted to register a partnership.
504
(ii) Furthermore if A and B are married to one another in terms of such a
purely religious marriage, A may register a domestic partnership with C to
whom he is not so rnarried.l" Should this occur, his "marriage" to B will
not be regarded as an unregistered domestic partnership, as clause 26(4)
of the Bill prevents a court from making any order where a registered
partnership or valid civil marriage or civil partnership already exists.
(iii) Finally, it appears as if clause 26(4) does not proscribe an unregistered
domestic partnership that exists alongside a purely religious marriage.
Therefore, if A enters into such a marriage with B, his non-formalised
relationship with C would qualify as an unregistered partnership provided
that he was not already a party to any civil marriage, civil partnership or
registered domestic partnership with anyone else.
While consequences (i) and (iii) appear to be justified (albeit that further
amendments to the Bill will have to take place in order for consequence (iii) to
take full effect)132it is submitted that the situation envisaged in consequence (ii)
cannot be countenanced. This is because it is submitted that the general
legislative scheme that is manifested in clause 4(1) and (2) as far as registered
domestic partnerships are concerned is precisely not to sanction polygamous
unions in any form, and that the interpretation in consequence (ii) is therefore
simply a legislative oversight. However, for the original intention to be conveyed
by the Bill, it will be necessary for clause 4 to be amended. Such an amendment
will, in addition, have to reflect the fact that the Bill was not drafted with the
purpose of regulating purely religious marriages, but that specific legislation in
this regard would be better suited to regulating this issue. It is consequently
131 On this interpretation A would in fact be able to be married to more than one person in terms of
his religion, provided that he is only a party to one registered domestic partnership.
132 For example, the Bill currently only regulates competing claims of the survivor to an unregistered
domestic partnership and a "customary spouse," but makes no reference to other unregistered
partnerships-see clauses 29(3)(c), 30(c) and 31(3). These clauses need to be amended in order
to provide for multiple relationships that do not fall foul of clause 26(4) such as purely religious
marriages. This issue is discussed in 11 below.
sos
recommended that the amendment should take cognisance of this fact. To this
end, it is proposed that the following provision be inserted after clause 4(2):
3(a) Subject to paragraph (b) of this subsection, persons who are parties to a
monogamous marriage that has not been solemnised in accordance with the
legislation mentioned in subsection (2) but that has been concluded in
accordance with a system of religious law subject to specified procedures may
register a domestic partnership between themselves;
(b) The registration of a partnership in the circumstances contemplated in
paragraph (a) shall not prevent the conversion of such a registered partnership
into a marriage in accordance with the provisions of any Act that has been
promulgated with the specific purpose of recognising the validity of;
requirements for; regulation, proprietary consequences and termination of; or
status and capacity of spouses to any marriage that has been concluded in
accor dance W.ith a system 0f re Ir·g·ious Iaw. 133
133
At first glance it is tempting to suggest that the insertion should provide for any such specific
religious marriage legislation (such as, for example the draft Muslim Marriages Bill, 2009
[accessed from
http://search.sabinet.co.za/WebZ/legi docs!policydocs!policies09!DI030578.pdf?sessionid=01-
58959-333645081&format=F&dbname=pold on 1 May 2009) to override the provisions of
registered domestic partnership legislation in the event of a conflict arising between the two
statutes. However when the issue is carefully considered, it is submitted that this should not be
the case as the partners who elect to register a domestic partnership exercise a choice and
undertake a "formal commitment" towards one another and indeed towards the State (see
SALRC 2006: 364). Consequently, it is suggested that such an "overriding" provision should
instead be apposite only in instances where no such formal commitment has been undertaken
(i.e. in circumstances where an unregistered partnership exists between parties to such a purely
religious marriage). Finally, it must be remembered that if the Domestic Partnerships Bill were to
come into force prior to the promulgation of any specific legislation providing for the validation
of purely religious marriages, the law would only provide the religious spouses (who, for religious
or other reasons do not wish to conclude a civil marriage) with two options in order to formalise
their union, namely either by registering a domestic partnership or entering into a civil
partnership in terms of the Civil Union Act 17 of 2006. Although the consequences flowing from
the exercising of either option would to varying degrees reflect those of a civil marriage, neither
of these options would give full effect to the status or validity of their religious marriage as such.
In the light hereof is it strongly recommended that the specific religious marriage legislation
should provide for the conversion of a registered domestic partnership (or civil partnership) into
such a marriage. The method by which such legislation would facilitate the conversion falls
beyond the scope of this study, but suffice it to say that the draft Muslim Marriages Bill, 2009
currently only provides for the spouses to an existing civil marriage to elect to have the Bill
506
The amendment suggested above would go a long way towards "tightening up"
the provisions of chapter 3 of the Bill by ensuring monogamy in all instances.
Accepting then that no person may be a party to more than one registered
partnership, the next question to answer is whether it follows that non-
compliance with this requirement will result in an unregistered domestic
partnership. For example, A enters into a registered domestic partnership with B,
and, a few years later enters into a second "bigamous" registered domestic
partnership with C while his partnership with B still subsists. Will the relationship
between A and C qualify as an unregistered domestic partnership? This
question must be answered in the negative, as clause 26(4) of the Bill (that forms
part of chapter 4 dealing with unregistered domestic partnerships) states that
[a] court may not make an order under this Act regarding a relationship of a person who
at the time of that relationship, was also a spouse in a civil marriage or a partner in a
civil union or a registered domestic partnership with a third party.
Therefore, in contrast with the position in scenarios 5.2.1.1 and 5.2.1.2 above, a
polygamous relationship that contravenes clause 26(4) would not even qualify as
an unregistered partnership, with the result that the relationship will be void ab
initio as far as the Bill is concerned. The following example illustrates the current
position:
Assume that X (male) enters into a civil marriage in community of property with Y
(female) and later (through an administrative oversight on behalf of the
authorities) succeeds in registering a domestic partnership with Z (female) while
his marriage to Y still subsists. Assume further that X is aware of the fact that his
domestic partnership does not comply with the Bill, while Z is unaware of X's
applied to their marriage and (with the exception of the patrimonial consequences) to determine
the extent of such application (see clause 2(4)). While section 13 of the Civil Union Act 17 of
2006 will presumably allow this clause to be interpreted so as to include partners to an existing
civil partnership, no provision is made for domestic partners.
507
married status and in good faith believes her relationship to be a valid registered
domestic partnership. The fact that the relationship between X and Z cannot
qualify as either a registered or unregistered domestic partnership implies that
the parties will be viewed as parties to a non-formalised life partnership in the
wide sense, with the result that they will at best be able to rely on the scant
protection offered to such relationships by the common law; an invidious position
which will no doubt be exacerbated by the fact that none of the ad hoc
recognition provided to life partners by the Legislature or by the Courts has yet
been found to apply to polygamous or "bigamous" relationships. The fact of Z's
bona fides will not assist her in any way.
It is this context, then, that it is submitted that a contextualised form of the
putative spouse doctrine should come to the assistance of a person in the
position of Z. However, in order for the doctrine to provide her with any relief as
far as the patrimonial consequences of her "registered partnership" is concerned,
it would be necessary for the doctrine to be developed as was suggested in the
discussion of Zulu v Zulu 134 in Chapter 6. Doing so would entitle Z to request
the Court to exercise its discretion in order to distribute joint assets of the
partnership (which also form part of the joint estate between X and Y) in a just
and equitable fashion between all parties concerned.
In addition, if a child had been born to X and Z, the fact that the partnership is
neither registered nor unregistered would imply that X could not be presumed to
be the father of the child with the responsibilities and rights of a married father.
Unless the putative spouse doctrine could apply in order to deem the child to be
born of married parents, X would be regarded as an unmarried father with the
result that he would have to comply with section 21 of the Children's Act 38 of
2005 in order to exercise the same.
134
2008 (4) SA 12 (D).
508
It is also important to consider the position of the "polygamous" unregistered
domestic partnership. In the preceding discussion it was found that any
contravention of clause 26(4) of the Bill would result in voidness. With this
general principle in mind, the exact scope and ambit of clause 26(4) needs to be
determined. It is clear that the provision in question excludes the possibility of
any order under chapter 4 in three circumstances, namely (i) where a civil
marriage 135 or marriage concluded under the Civil Union Act 17 of 2006 is in
existence between one of the "unregistered domestic partners" and a third
person; (ii) where a civil partnership has been concluded between one of the
"unregistered domestic partners" and a third person; and (iii) where a registered
domestic partnership subsists that involves one of the "unregistered domestic
partners" and a third person. Three noteworthy exceptions immediately come to
mind namely (i) customary marriages; (ii) so-called purely religious marriages
and (iii) unregistered domestic partnerships. Consequently, it appears as if
clause 26(4) will not prevent a Court from making an order under chapter 4 of the
Bill if the applicant is the unregistered domestic partner of a man who is married
to someone else in terms of customary law or who is already "married" to one or
more women in terms of a purely religious marriage. Furthermore, it appears as
if the applicant may also be the unregistered domestic partner of a person who is
also a party to an unregistered domestic partnership with someone else (which,
for the sake of explanation may be termed a "polygamous" unregistered domestic
partnership ).136 Therefore the hypothetical set of facts considered above
involving X, Y and Z would have had a completely different outcome if it did not
contravene clause 26(4). For example, if X and Y had been spouses to a
customary marriage and X had later entered into an unregistered domestic
partnership with Z while still married to Y there would be no objection to an
application brought by Z under chapter 4 of the Bill upon the termination of her
relationship with X. Furthermore, there would be no reason to consider the
13S This refers to a marriage under either the Marriage Act 25 of 1961.
136 This interpretation squares with the South African Law Reform Commission's view that "the
remedies in the legislation only be available to partners who have not also been in a civil
marriage or registered partnership with a third party at the time of the unregistered partnership"
(SALRC2006: 383).
509
application of the putative spouse doctrine to the relationship between X and Z
for the simple reason that it was not a void partnership. If a child was born into
the relationship between X and Z, X would not be deemed to be the biological
father of the child and would not have the parental responsibilities and rights
deemed to accrue to a married father by virtue of the Children's Act,137 but
instead would have to satisfy the requirements of section 21 of that Act in order
to acquire the same just like any other unmarried father.138 The same position
would obtain if X and Y had been married to one another in terms of a purely
religious marriage and X had entered into an unregistered domestic partnership
with Z while still "married" to Y, or if X had been involved in an unregistered
domestic partnership with Y and had later entered into a similar relationship with
Z while the relationship with Y still subsisted.l'" Clause 26(4) therefore appears
to create an exception to the "rule" expressed in the definition of "domestic
partnership" in clause 1 in terms of which such a partnership is restricted to "two
persons who are both 18 years of age" (emphasis added). The interpretation
does however highlight a problematic aspect as far as the third type of
relationship is concerned (that is to say the "polygamous" unregistered domestic
partnership) in that it would appear that such a relationship would generally only
be sanctioned if the parties would "in the ordinary course of events as part of
their culture become a partner in a multiple relationshlp.t"? The strict application
of this culture-based criterion may however result in severe detriment to a
vulnerable partner who may have been unaware of the fact that she was not the
only person involved in an intimate relationship with what may for the sake of
convenience be called the "common partner." It is submitted that the best way to
resolve this position is not automatically to reject "polygamous" unregistered
domestic partnerships that are not culture-based, but instead to employ an
137 38 of 2005.
138
This would tie in with the amendment to section 21 that is suggested in 12.2.4 below namely,
that the particular section should apply to unregistered domestic partners only.
139
This discussion makes it clear that it is essential for the claims under Chapter 4 of the Act (for
example intestate succession and maintenance) to be expanded in order to cater for these
scenarios. This aspect will be addressed later in this Chapter (see 11.2 et seq).
140
SALRC2006: 383.
510
effective threshold criterion (coupled with flexible indicia) which, if satisfied in the
opinion of the Court, will permit a party to such a "polygamous" union to be
recognised as an unregistered partner in apposite circumstances. (The issue
relating to the "threshold criterion" for unregistered domestic partnerships will be
returned to later in this Chapter (see 11.2). For now it will suffice to assume that
clause 26(4) should permit the parties to "polygamous" unregistered domestic
partnerships in principle to be entitled to the legal protection offered by the Bill.
In this regard it is worth noting that clause 26(2)(i) permits "the relationship status
of the unregistered domestic partners with third parties" to be taken into account
when an application is brought under chapter 4 of the Bill. Similarly, clause
28(2)(h) permits the "relevant circumstances of another unregistered domestic
partnership" to be considered for the purposes of maintenance claims.)
On the other hand the position must be considered if clause 26(4) was indeed
contravened. If, for example, X and Y had entered into a civil marriage and,
while this marriage subsisted, X entered into an unregistered domestic
partnership with Z, clause 26(4) would preclude any application by Z under
chapter 4 of the Bill. Furthermore, even if Z was bona fide unaware of the
existence of X's marriage, the legal position is currently unclear as to whether or
not she would be able to rely on the existence of a universal partnership between
herself and X, particularly if X and Y were married in community of property.l'" It
is once again in this context that it is submitted that an application to Court
should either permit the extension of the putative spouse doctrine to the bona
fide partner in Z's position or, in the alternative, to consider interpreting the
principles of matrimonial property law in the manner advocated in 2.4.3.4.2 in
Chapter 6 so as to sanction a "transfer" of property to Z. Doing so would provide
her with an alternative to the (highly uncertain to begin with) universal partnership
route and, moreover, would create a more equitable position for all of the parties
concerned.
141 Compare V (a/so known as LJ v De Wet NO 1953 (1) SA 612 (0) with Zulu v Zulu 2008 (4) SA 12
(D). Interestingly, the facts in the former case make no mention of the deceased partner's wife
contesting any claim by the surviving partner.
511
A final question to consider is the relationship between the unregistered domestic
partnership and a "marriage" that is not recognised by South African law. For
example, if A and B enter into a purely religious marriage without solemnising
their marriage in terms of applicable marriage legislation, can this qualify as an
unregistered domestic partnership and hence entitle the parties thereto to the
protection conferred by the Bill? The immediate answer to this question is in the
affirmative, provided that the marriage ceremony between A and B did not
purport to create a valid and binding civil or customary marriaqe.l'" However, it
will be important to take note of two important points, namely (i) the fact that the
Children's Act will not regard the biological father of a child born of such a
"marriage" as being an unmarried father; 143 and (ii) that legislation that is tailor-
made for such marriages may be forthcoming (an example hereof is the draft
Muslim Marriages Bill, 2009).144 In the event of such legislation being
promulgated, it is proposed that the latter should override the provisions of more
generic legislation such as the Domestic Partnerships Bill. To this end it is
strongly recommended that a provision to this effect should be inserted into
chapter 4 of the latter prospective Act. Such a provision should read as follows:
In the event of a conflict between the provisions of this Chapter and a provision in any
Act that has been promulgated with the specific purpose of recognising the validity of;
requirements for; regulation, proprietary consequences and termination of; or status
and capacity of spouses to any marriage that has been concluded in accordance with a
system of religious law subject to specified procedures, the provisions of that Act shall
prevail in respect of a claim instituted by such a spouse.
A second context in which the relationship between the unregistered domestic
partnership and marriage needs to be considered is in the case of a void civil or
142
See section 11(3) of the Marriage Act 25 of 1961.
143
See the section 1 definition of "marriage" in the Children's Act which includes a marriage
"concluded in accordance with a system of religious law subject to specified procedures."
144
See the main text above for a discussion on the interaction between such legislation and the
registered domestic partnership. It will be recalled that it was mentioned in Chapter 3 that
litigation is underway regarding the enactment of this Bill.
512
customary marriage. For example, if C and D purport to enter into a civil
marriage with one another and that "marriage" turns out to be void ab initio,
would either C or D be able to petition a Court for an order under chapter 4 of the
Domestic Partnerships Bill (i.e. to request their "marriage" to be regarded as an
unregistered domestic partnership )?145
It is submitted that the scenario between C and D needs to be differentiated from
the one between A and B. In the former case (involving C and D), the parties
have elected to enter into a relationship governed by the law of marriage, while in
the latter instance the parties have not. Furthermore, in consequence of the
"well-known canon of construction that we cannot infer that a statute intends to
alter the common law,,,146it can be presumed that the consequences that
normally ensue in the case of a void "marriage" would ensue for C and D.
145
There are two more contexts in which the relationship between the unregistered domestic
partnership and marriage must be analysed:
(i) Assume that E (male) is "married" to more than one wife (F and G) in terms of religious
law and that neither of these marriages has ever purported to be a valid civil or
customary marriage. Could one of the "spouses" (for example F) allege that she was an
unregistered domestic partner at the termination of her "marriage" to E? On a technical
interpretation it appears that this would be possible as the "marriage" between Eand G
is neither a civil marriage nor a civil partnership and therefore does not contravene
clause 26(4). The same principle would apply if the application were brought by G. In
fact, on the basis of this technical construction of clause 26(4) it may be possible to
argue that both F and G could apply for the relief under chapter 4 at the termination of
their relationships with E (for example due to his death), particularly (i) as entering into
multiple relationships would indeed form part of the culture of E, F and G, and (ii) that,
as seen in the main text, clause 26(4) appears to override the restriction of monogamy
that appears to flow from the definition of "registered domestic partnership" in clause
1. This argument would be strengthened by the fact that as neither of their "marriages"
are valid they should both qualify as unregistered domestic partners.
(ii) Assume that H (male) attempted to enter into a civil marriage with I, but that this
marriage was null and void. If H later entered into an unregistered domestic partnership
with J the latter relationship would qualify as an unregistered domestic partnership
while the former "marriage" would not.
146
Per Wessels Jin Casserly v Stubbs 1916 TPD 310 at 312. Also see 5 v Col/op 1981 (1) SA 150 (A) at
164 (A). This rebuttable presumption applies equally to statutory as well as common law, and an
existing statute is presumed not be altered by a later one unless this is done "expressly or by
necessary implication" -see Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA) at par (87) and
the authorities cited. For a comprehensive discussion of this presumption see Du Plessis 2002:
177 - 181; Botha 1999: 64 - 67 and, with specific reference to recent family law legislation (in the
form of the interpretative problems posed by the Civil Union Act 17 of 2006), Smith and Robinson
2008 (a): 366, 367.
513
Therefore, if the "marriage" between C and 0 is void ab initio due, for example, to
the fact that the marriage officer who purported to solemnise their civil marriage
was not legally competent to do so, the law of marriage would dictate what the
consequences-if any-of such a "marriage" would be. The "marriage" could
therefore qualify as a putative marriage if either C or 0 (or both of them) bona
fide believed it to be valid.
There is a further reason for submitting that a purported civil or customary
marriage that is null and void cannot qualify as an unregistered domestic
partnership, namely that an anomaly would result where a "marriage" was void
by reason of bigamy. For example, assume that E and F were validly married,
but that E purported to enter into a further civil marriage with G. There is no
doubt that the second "marriage" is void due to the fact that E is already a
spouse to an existing civil marriage. However, if it were true that a void marriage
could indeed qualify as an unregistered domestic partnership, the anomalous
result would be that the "marriage" between C and 0 (in the previous example)
that was void due to the incompetent marriage officer could in fact qualify as an
unregistered partnership while clause 26(4) of the Bill would prevent the same
result in the "marriage" between E and G.147 It is submitted that such a
distinction would be irrational and unfair.
It is acknowledged that the unregistered domestic partnership could potentially
offer better protection to "spouses" to a void marriage than that provided by the
law of marriage itself (including that provided by the putative spouse doctrine if
this were apposite). Nevertheless, the preceding analysis shows that such
protection will not be available under the 2008 Bill in its current guise. Therefore,
if such spouses are desirous of better protection it is submitted that their only
option would be to allege that the legal position that would obtain if the Bill were
147
UAcourt may not make an order under this Act regarding a relationship of a person who at the
time of that relationship, was also a spouse in a civil marriage or a partner in a civil union or a
registered domestic partnership with a third party" (emphasis added).
514
enacted is unconstitutional due to the inequality of the protection offered by the
law of marriage vis-a-vis that provided by the Bil1.148
To summarise, therefore, any "marriage" that has been entered into between two
parties will qualify as an unregistered domestic partnership provided that the
parties thereto have never purported to enter into a valid civil or customary
marriage. This general principle would be subject to the rather obvious
qualification that such a relationship must comply with chapter 4 of the Domestic
Partnerships Bill.
5.2.2.2 Age
The Bill requires both partners to be at least 18 years of age.149 Should this
requirement not be complied with due to the bona fides of either or both parties,
the partnership will be void and will qualify as neither a registered nor
unregistered domestic partnership. In such an instance it is submitted that the
contextualised putative spouse doctrine should be applied, with the result that
effect could be given to the intended patrimonial consequences of the
partnership and that, provided that the parties had purported to enter into a
registered domestic partnership, any children born as a result will be regarded as
being born of married parents.
5.2.3 Miscellaneous modifications required for entering into a registered
domestic partnership
The impact of other grounds that would generally lead to the invalidity of a
marriage require brief consideration.
148 See 7.3.4.2 below for an analysis of a similar constitutional challenge on the basis of inconsistent
protection under the equality clause within the context of the distinction between the registered
domestic partnership and matrimonial property law.
149 Clause 1 defines a "domestic partnership" as "a registered domestic partnership or unregistered
domestic partnership between two persons who are both 18 years of age or older and includes a
former domestic partnership."
515
5.2.3.1 Witnesses
Witnesses have been prescribed as a requirement for the validity of marriages
since the Decretum Tametsi of 1563,150 and in contemporary South African law it
is trite that a civil marriage concluded without at least two competent witnesses
as prescribed by the Marriage Act151 is void.152 While it is undoubtedly true that
the consequences of a marriage are far-reaching and status-altering, entering
into a registered domestic partnership also entails important consequences for
the partners.P" their children 154and for the State.155 Furthermore, as seen in the
preceding discussion, the very status of the domestic partnership hinges on the
registration procedure as a manifestation of the parties' "formal commitment"
towards entering into a registered as opposed to an unregistered partnership.
The importance of being able to prove that valid registration took place is
therefore of critical importance for all parties involved.l'"
In formulating its proposal regarding the registration procedure, the South African
Law Reform Commission commented that its earlier proposal (under the 2003
Discussion Paper) was "very formal" involving designation by the Minister of
Home Affairs of registration officers, the procedure itself being conducted before
such an officer and two witnesses, and record-keeping of all reqistrations.""
150
See 3.3 in Chapter 2 above.
151
25 of 1961, section 29A.
152
See for example Hahlo 1985: 80; Sinclair and Heaton 1996: 356; 388; Cronjé and Heaton 2004:
41; Fourie ond Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA) at par (71).
153
For example, the rights and duties attached to the partnership by the Bill immediately become
applicable to the parties' relationship upon registration without further ado, while in the case of
an unregistered domestic partnership the consequences are not automatic but depend on a wide
array of factors that need to be considered by a Court before it makes an order upon application
by one or both partners (see clause 26).
154
The father of the child is deemed to be a married father with the attendant automatic parental
responsibilities and rights granted by the Children's Act 38 of 2005.
155
For example, clause 21 of the Bill will have the effect of widening the liability of the Road
Accident Fund to compensate unmarried partners, as, in apposite circumstances both
heterosexual and homosexual partners would be included and not (as the law stands) only
homosexual couples who have undertaken mutual support obligations-see the discussion of Du
Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) in Chapter 5 above.
156
SALRC2006: 327.
157
SALRC2006: 325.
516
This proposal, the Commission continued, was generally favourably received,
although "many respondents favoured a more informal form of a declaration that
would accommodate poor and less sophisticated people.,,158 Other than this
comment, the Commission's 2006 Report offers no further explanation on its final
registration proposal. It is however noteworthy that the only difference between
the 2003 proposal and the Commission's final proposal in the Report was that
the three questions 159 that were originally prescribed to be put to each
prospective partner as well the witnessing requirement were jettisoned. While it
may be argued that the first change may have "informalised" proceedings to
some extent,160it is difficult to see how the witnessing requirement could make
proceedings overly formal. This is especially true when it is considered that there
are many run-of-the-mill legal transactions that today require witnessing that are
hardly comparable in terms of significance to that of a status-creating
retationship.l'"
To this end, it is submitted that a provision requiring the registration procedure to
take place in the presence of two competent witnesses and for the register to be
signed by them would be a salutary development which, furthermore, will not
derogate significantly from the South African Law Reform Commission's stated
objective of keeping the registration procedure as simple and straightforward as
possible.162 This requirement will be dealt with later.
158 SALRC2006: 326.
159 These questions were the following: (i)"Do you A., B. declare that you voluntary [sic) want to
register your relationship as a registered partnership in terms of the Registered Partnerships Act,
20 .. (Act No .... of 20 ..)?" (ii) "Do you A. B. declare that you are aware of the legal rights and
obligations that follow this registration?" and (iii) "Do you A. B. declare that you are aware of the
process that must be followed to effect the termination of a registered partnership?"
160 It is submitted that these three questions would in fact have gone some way towards ensuring
that the partners were aware of the gravitas of their actions, which is a cogent argument in
favour of their retention.
161 One need not look far for an example: Section 15(2) read with subsection (5) of the Matrimonial
Property Act 88 of 1984 lists many transactions where the consent required in order for such a
transaction to be valid must be attested by competent witnesses.
162 See SALRC2006: 326.
517
5.2.3.2 Incompetent registration officer
As it stands the Bill does not make provision for the situation where an
incompetent registration 163 officer acting in good faith attempts to register a
domestic partnership. This oversight is remedied by the legislative insertion
proposed in 5.2.1.1 above.
5.2.3.3 Prescribed documentation
Strangely enough, the Domestic Partnerships Bill does not require prospective
domestic partners to produce any form of identity documentation before
permitting the registration officer to proceed with the registration procedure. In
view of the fact that the registration of a domestic partnership involves a formal
public commitment that is status-altering and for which monogamy is an absolute
requirement (see clause 4(1) and (2)), the omission of a requirement similar to
that prescribed for entering into a marriage 164 or civil partnership 165 is certainly an
oversight that requires urgent attention. With this in mind, it is submitted that a
provision similar to section 7 of the Civil Union Act should be inserted before
clause 4 of the Domestic Partnerships Bill. (In order to avoid confusion regarding
the numbering of remainder of the Bill, this clause is numbered "3A"):
3A Prohibition of registration of domestic partnership without production of
identity document or prescribed affidavit
No registration officer may register a domestic partnership unless-
(a) each of the prospective partners in question produces to the
registration officer his or her identity document issued under the
provisions of the Identification Act;
163
The designation of registration officers is regulated by clause 5 of the Bill.
164
See section 12 of the Marriage Act 25 of 1961; section 7 of the Civil Union Act 17 of 2006 and the
Regulations to the Recognition of Customary Marriages Act 120 of 1998 as they appeared in
notice 1101 of Government Gazette No; 21700 of 1 November 2000.
165
Section 7 of the Civil Union Act 17 of 2006.
518
(b) each of such partners furnishes to the registration officer the prescribed
affidavit; or
(c) one of such partners produces his or her identity document referred to
in paragraph (a) to the registration officer and the other furnishes to the
registration officer the affidavit referred to in paragraph (b).
Non-compliance with this requirement will imply that the "registered domestic
partnership" is void. Provided that the relationship between the parties complies
with the requirements of chapter 4 of the Bill, such a relationship may however
qualify as an unregistered domestic partnership.
5.3 Conclusion
The Domestic Partnerships Bill, 2008 should be amended in order to provide for
non-or defective registration of so-called "registered domestic partnerships" and
in order to ensure that all such partnerships are monogamous. Where apposite,
the putative spouse doctrine should be applied (and where necessary developed
in order to be applied) to provide for the interests of children born of defective
registered partnerships and to regulate the patrimonial consequences of
partnerships that are void ab initio in terms of the Bill.
In order to ensure effective interrelationship between the Bill and potential
legislation regulating purely religious marriages, it is recommended that any
specific legislation that is promulgated with the aim of regulating and validating
marriages concluded under a system of religious law should provide for the
conversion of a domestic partnership into such a marriage and that a provision
be inserted into the Bill that regulates potential conflict between chapter 4 thereof
and any such legislation. As far as the formal requirements for entering into a
registered domestic partnership are concerned, it has been recommended that a
witnessing requirement should be reintroduced and that the Bill should require
the production of identity documents and/or affidavits.
519
6. THE RECOGNITION OF THE CONCEPT OF CONSORTIUM OMNIS
VITAE WITHIN THE CONTEXT OF THE (REGISTERED) DOMESTIC
PARTNERSHIP
6.1 Introduction
When the possibility of the application of the putative spouse doctrine to
domestic partners was considered in 5 above, the conclusion was reached that
while the Domestic Partnerships Bill was not drafted with a view to providing
domestic partners with identical rights and responsibilities to those which a
marriage or civil partnership will occasion, its purpose was at the very least to
ensure effective regulation of these partnershlps.l'" Furthermore, it was
concluded that an interplay exists between the registered and the unregistered
partnership under the Bill, with the result that the grounds that will lead to the
nullity or voidability of a marriage will not necessarily have the same effect on the
domestic partnership. However, despite these differences, it must still be true
that in certain instances the domestic partnership may be so closely linked with
the institution of marriage that the extension of a specific consequence of
marriage to the domestic partnership may not only be justified, but may well be
essential. In this regard it is of cardinal importance to recall the conclusion
reached in Chapter 3 in terms of which it was noted that one of the essential
features of the legislation drafted in accordance with the domestic partnership
rubric would be for it to give context-specific effect to the consortium omnis vitae
that exists between domestic partners as "the essence and objective hallmark" of
their relationship. In addition, in Chapter 5 it was concluded that, in view of the
rubric's requirement for the context-specific recognition of consortium, it may be
prudent to suggest a more comprehensive or even complete recognition of this
concept (that is to say as it exists in marriage) to domestic partners who have
undertaken a formal public commitment, while retaining a more nuanced form
166
See 5.1.3.
520
thereof for partnerships that have never been tormatised.l'" In the discussion
that follows the Bill will be assessed in this regard.
6.2 The current legal position pertaining to consortium and life
partnerships
In Chapter 5 it was pointed out that it is incorrect to assume that the concept of
consortium omnis vitae has been fully recognised in the context of life
partnerships. Instead, it was concluded that as far as same-sex couples are
concerned, a contextualised form of consortium omnis vitae has thus far been
recognised by our Courts.!" while no similar development has as yet taken place
as far as heterosexual life partners are concerned.l'" In the discussion that
follows it will be argued that the Domestic Partnerships Bill should not maintain
this status quo.
6.3 Searching for common ground between marriage and the domestic
partnership
6.3.1 The point of departure
According to Madala j in Satchwell v President of the Republic of South Africa
and Another. 170
In terms of our common law, marriage creates a physical, moral and spiritual
community of law [sic] which imposes reciprocal duties of cohabitation and support.
The formation of such relationships is a matter of profound importance to the parties,
and indeed to their families and is of great social value and significance.
167 See 3.7 in Chapter 5.
168
See Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [13] (g) where Ackermann J's
findings in Nationol Coolition for Gay and Lesbian Equality v Minister of Home Affoirs 2000 (2) SA
1 (CC)were referred to with approval by Cameron JA.
169 See 3.7 in Chapter 5.
170 2002 (6) SA 1 (CC)at par [22].
521
The question that needs to be answered is whether there is any fundamental
reason for reserving this statement of the law for marriage, or whether it should
be equally applicable within the context of the domestic partnership.
The point of departure for answering this question is an understanding of the
noteworthy differences between the registered and unregistered domestic
partnership models provided for in the Bill. In this regard, the registered model
provides an alternative to marriage by which the partners can, by undertaking a
formal public commitment, obtain legal protection of their union as from the date
of the registration thereot.!" On the other hand, the latter model does not
require any formal commitment or registration and simply provides a means by
which the partners to such a relationship can apply for certain relief at the
termination thereof.172 If there are any additional parallels to be drawn between
marriage and domestic partnerships over and above those already provided for
in the Bill, the preceding discussion makes it clear that they are more likely to
occur within the realm of the registered as opposed to unregistered partnership
models. This conclusion is substantiated by the fact that South Africa's highest
Court has already intimated that even non-formalised same-sex life partners are
"as capable" of creating a consortium omnis vitae as heterosexual spouses.I" If
this capability is in principle recognised within the context of non-formalised
relationships, the case for inferring that a comprehensive or even complete
consortium in fact exists must be even stronger where a formal public
commitment has been undertaken by the parties that embodies a change of
status with concomitant rights and responsibilities.
171
See SALRC 2006: 314 - 320.
172
See SALRC 2006: 375 - 379.
173
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at
par [53].
522
6.3.2 Assessing the similarity between marriage and the registered domestic
partnership
The quote taken from the Satchwell case above confirms the recognised fact that
in addition to changing the status of the spouses, marriage "creates" the
consortium omnis vitae between the parties.V" The fact of marriage obliges the
parties to cohabit with one another, to support one another and to maintain
fidelity throughout the existence of their marriage, all with a view to maintaining
"sound domestic relations."!" In the light of this brief summary, it is submitted
that if the essence of this concept can be found to apply to the parties to a
registered domestic partnership, a logical consequence thereof would be that a
consortium should be recognised as an automatic consequence of such a
relationship.
6.3.2.1 Similarities between the consequences of marriage and those of
the registered domestic partnership that are occasioned by the
Domestic Partnerships Bill, 2008
(i) In much the same was as a marriage does, the parties to a registered
domestic partnership undertake a formal public commitment as a result of
which they "gain official state and societal recognition.,,176
(ii) Once a registered domestic partnership has been concluded, the parties
are no longer able to enter into a similar relationship or a marriage with
anyone else.177
174 Church 1979: 376.
175 Church 1979: 377; Robinson 1991: 509; Wiese v Moolman 2009 (3) SA 122 (T) at 126 (B) - (C).
176 SALRC2006: 315.
177 Clause 4(1) and (2).
523
(iii) Registered domestic partners are placed under the same restrictions
regarding affinity and consanguinity as those that apply to spouses to a
valid rnarrlaqe.!"
(iv) A codification of the pater est quem nuptiae demonstrant principle (the
"father is he whom the marriage points out") 179 applies in contextualised
form in the case of a registered domestic partnership between two
persons of the opposite sex."?
(v) As an outflow of the previous point, the male partner in a heterosexual
domestic partnership is deemed to be a married father in respect of any
child born into the relationship with the result that such a partner has the
same parental rights and responsibilities in respect of that child as he
would have had if he had been married to the female domestic partner.l'"
This effectively implies that such a child is deemed to be born of married
parents.
(vi) Registered domestic partners owe one another a reciprocal duty of
support that, as with a marriage, attaches to the relationship by operation
of law.182
(vii) As in the case of spouses to a valid marriage, the capacity to act of the
registered partners is affected as far as joint property is concerned.P''
(viii) Both domestic partners acquire a right to occupy the "family home", and
the partner who owns the family home may not evict the non-owner.l'"
The same applies in the case of a marriage.
178
Clause 4(5).
179
Hiemstra and Gonin 1992: 253.
180
Clause 17 of the Bill.
181
Clause 17.
182
Clause 9.
183
Clause 10.
524
(ix) As in the case of a surviving spouse in a valid marriage, the surviving
registered domestic partner has a right to inherit intestate from the
deceased partner's estate.l'"
(x) At the termination of a registered domestic partnership, such partners are
deemed to be spouses for the purposes of delictual claims, are
dependants for the purposes of the Compensation for Occupational
Injuries and Diseases Act 186 and the survivor may institute claims based
on the wrongful death of the deceased partner.!" The same
consequences apply in the case of a marriage.
(xi) Although it stands to reason that they do not limit themselves to registered
domestic partners, various statutes make specific provision for life
partners or regard them as being spouses for the purposes of that
leqislation.l'"
(xii) Very significantly, the enactment of (registered) domestic partnership
legislation will have the important consequence that, as in the case of
spouses to a valid marriage, the partners' rights will henceforth "largely
[be] fixed by law, and not by agreement, unlike the case of parties who
cohabit without being rnarrled."!"
184 Clause 11(1) and (2).
185 Clause 20.
186 130 of 1993.
187 Clause 2l.
188
See 3 in Chapter 6 and the discussion of the proposed amendments to these statutes in 12
below.
189
Per Skweyiya J in Volks NO v Robinson 2005 (5) BCLR446 (CC).
525
6.3.2.2 A few of the more significant differences that exist between
marriages and registered domestic partnerships in terms of the
2008 Bill
(i) One of the first major differences between civil or customary marriages
and domestic partnerships is that the age requirement in order to conclude
a domestic partnership is absolute (18 yearsj."? while in the case of a civil
or customary marriage a minor may marry provided that the requisite
consent is obtained. It is important to note that the Civil Union Act 17 of
2006 also poses an absolute age requirement of 18 years of age.191 This
discrepancy will be discussed in Chapter 8.
(ii) It is trite that a minor who enters into a valid civil or customary marriage
automatically becomes a major, and this status is retained even if the
marriage is dissolved through death or divorce prior to the minor reaching
the age of majority.192 Due to the fact that it prescribes a minimum age
requirement that is identical to the age of majority, a civil union will not
have the effect of conferring majority status on a rninor.l'" If the Domestic
Partnership Bill retains the absolute age requirement of 18 years, the
same will hold true for a registered domestic partnership.
(iii) While section 17 of the Matrimonial Property Act 88 of 1984 regulates this
position fairly comprehensively, the Domestic Partnerships Bill is silent
regarding the capacity to litigate of registered domestic partners.
(iv) The "husband" or "wife" of an accused person is generally competent but
not compelIabie to give evidence for the prosecution in criminal
190
See the definition of "domestic partnership" in clause 1.
191
See the definition of "civil union" in section 1 of the Act, as well as Van Schalkwyk 2007: 168 and
Sinclair 2008: 408.
192
See for example Van der Keessel Th 108; Gr 1.6.4.
193
See Heaton 2008(a): 114.
526
proceedtnqs.'?' and any communication between spouses is similarly
privileged.195 As far as civil proceedings are concerned, a "husband" is
not compelled to disclose communication made to him by his "wife" made
during the existence of a marriage, and vice versa.196 The Domestic
Partnerships Bill contains no similar provisions relating to privileged
communication or compellability.
When one considers the differences listed above, it becomes clear that although
differences (i) and (ii) may appear to be fairly profound, closer analysis reveals
that the Domestic Partnerships Bill appears to square with the trend in recent
legislation (such as the Civil Union Act) in terms of which a minimum age
requirement of 18 is prescribed so as to align that legislation with the age of
majority prescribed by the Children's Act 38 of 2005. Whether the differentiation
between marriage and other interpersonal relationships regarding age should
persist is difficult to say, as an analysis of the history behind the various age
requirements proposed by the South African Law Reform Commission over the
years creates significant doubt as to whether these discrepancies were ever
intended to begin with.197 Furthermore, whether or not the absolute age
194 Section 195 of the Criminal Procedure Act 51 of 1977 contains a number of exceptions to this
rule, such as in the case of bigamy (subsection (l)(d)) or the shirking of maintenance obligations
in terms of section 31(1) of the Maintenance Act 99 of 1998 (section 195(l)(c)).
195 Section 198 of the Criminal Procedure Act 51 of 1977.
196 Section 10(1) of the Civil Proceedings Evidence Act 25 of 1965.
197 In its 2003 Discussion Paper on domestic partnerships, the South African Law Reform
Commission (2003: 270) proposed that "[s]ince the registered partnership will be used by
couples in a conjugal relationship, there is a prohibition on the registration of relationships
between siblings and people who are relatives in the descending or ascending line. For the same
reason it is submitted that the requirements of marriage relating to age [as amended by the
SALRC'searlier proposed Review Marriage Act] be applied to the registered partnership model."
In the corresponding Bill that was proposed by the Commission (Annexure D) no specific mention
of age is to be found, but it appears as if clause 4(6)(b) of the Bill which states that "[a]
partnership may only be registered ... by prospective registered partners who would, apart from
the fact that are of the same sex, not be prohibited by law from concluding a marriage" may, in
the absence of any qualification to the contrary, have been included with the aim of importing
(inter alia) the age requirements pertaining to marriage into such partnerships. In the 2006
Report no specific mention of age is to be found as far as registered domestic partnerships are
concerned. In addition, clause 4(4) of the Bill (Annexure E of the Report) qualifies its 2003
counterpart by stating that "[p]ersons who would be prohibited by law from concluding a
marriage on the basis of consanguinity may not register a partnership" (emphasis added). In
527
requirement posed by the prospective domestic partnership legislation can be
retained will to a large extent depend on whether a proposal that is made at the
end of this study is adopted by the Leqislature.l'" In the final analysis it is
consequence, it can be concluded that-whether by oversight or otherwise-the legislation
proposed in the 2006 Report prescribed no age requirement. The next document to consider is
the first Civil Union Bill as it appeared in August 2006 [B 26-2006). As far as age was concerned,
the Bill defined a "civil partnership" as being concluded between "two adult persons." The Bill
therefore prima facie intended the age of majority to apply, which at that stage was still set at 21
years. This notwithstanding, clause 8(5) stated that "[a) civil partnership may only be registered
by prospective civil partners who would, apart from the fact that they are of the same sex, not be
prohibited by law from concluding a marriage." As was the case with the 2003 Discussion Paper,
it is submitted that the latter provision may be interpreted as having made the age requirements
pertaining to marriage applicable to civil partnerships, with the result that a person under the
age of 21 could have entered into such a partnership with the necessary consent. On the other
hand, as far as registered domestic partnerships were concerned, the definition in the 2006 Bill
contained no similar reference to "adult persons." In addition, clause 16(4) of the Bill provided
that "[p)ersons who would be prohibited by law from concluding a marriage on the basis of
consanguinity may not register a domestic partnership" (emphasis added). As was the case with
the 2006 Report, it can be concluded that no age requirement was prescribed for the conclusion
of a registered domestic partnership. This position becomes truly baffling when one considers
that the Bill did in fact include the qualification pertaining to "adult" in its definition of the
"unregistered domestic partnership." Moving along, the Domestic Partnerships Bill, 2008 leaves
one in no doubt as to the fact that the Legislature intended an absolute age requirement of 18 as
both the definition clause as well as clause 6 of the Bill categorically prescribe this requirement.
In addition, clause 4(5) of the Bill contains the express qualification that persons who are
prohibited from marrying one another on the grounds of "consanguinity or affinity" may not
enter into a registered domestic partnership. The inconsistencies described above have been
dealt with in detail with the aim of throwing a problem pertaining to the interpretation of the
Civil Union Act 17 of 2006 into sharper relief. In this regard it will be recalled that the Act defines
a "civil union" as being between "two persons who are both 18 years of age or older ...n It is
therefore generally accepted that the Civil Union Act poses an absolute age requirement and that
it therefore deviates from the age requirements prescribed by marriage legislation (see for
example Sinclair 2008: 408). But, is this necessarily so? If one considers section 8(6) of the Act
which makes the unqualified statement that "[a) civil union may only be registered by
prospective civil union partners who would, apart from the fact that they are of the same sex,
not be prohibited by law from concluding a marriage under the Marriage Act or Customary
Marriage Act" (italics added) it could in fact be contended that the age requirements pertaining
to marriage have also been made applicable to civil unions. If this were indeed so, no "mistaken
inconsistency" (as Sinclair 2008: 408 puts it) could arise between the Marriage Act 25 of 1961
and the Civil Union Act. While it is probably safest to assume that the Legislature intended an
absolute age requirement of 18, it is submitted that this uncertain position provides yet another
example of the uncertainties that surround the interpretation of the Civil Union Act (see Smith
and Robinson 2008(a) and 2008 (b) as well as 4.3.1.1 in Chapter 8 for others).
198 In Chapter 8 it is proposed that the Civil Union Act be repealed and that all marriages should
henceforth take place in terms of the Marriage Act of 1961. As far as the civil partnership is
concerned, it is proposed in the same Chapter that it should be superseded by the legislation as
modified in accordance with the domestic partnerships rubric developed in this study. A proper
decision as to whether or not the absolute age requirement prescribed by the Domestic
Partnerships Bill should be retained can only be made once the Legislature has decided whether
528
submitted that the Legislature should revisit this issue in the light of the
observations made thus far as well as in the light of the broader proposals made
by this study.199
As far as the third difference is concerned, it is important to note that section 17
of the Matrimonial Property Acroo does not restrict the locus standi in iudicio of
all spouses, but only applies to marriages that are concluded in community of
property. Furthermore, in accordance with clause 7(1) of the Bill the default
property regime201for a registered domestic partnership is complete separation
of property, while the partners are permitted to conclude a registered domestic
partnership agreement in which-presumably-any deviations from this principle
may be contained.202 In the light hereof, the fact that the Bill does not regulate
the capacity to litigate of registered domestic partners is probably not surprising,
and, moreover, cannot without more lead to the conclusion that a domestic
partnership is not comparable with marriage. As far as privileged
communications and compellability as a witness are concerned it must be
or not to retain the Civil Union Act. To illustrate: If one accepts that the Civil Union Act
prescribes an absolute age requirement of 18 (see the preceding footnote), the retention of this
Act coupled with the enactment of domestic partnership legislation will imply that both of these
Acts prescribe identical absolute age requirements of 18 and that they are therefore aligned with
one another. On the other hand, if the Civil Union Act were to be repealed in the manner
suggested in Chapter 8 of this study, this would imply that an age differentiation would occur
between marriage (irrespective of whether concluded in terms of the Marriage Act 25 of 1961 or
the Recognition of Customary Marriages Act 120 of 1998) and domestic partnerships due to the
fact that minors would be permitted to enter only into the former. While it is submitted that
there will be no reason to justify such a differentiation to occur with respect to registered
domestic partnerships once the domestic partnership rubric is adopted (formal public
commitment, identical consortium omnis vitae to marriage and many of the same invariable
consequences as marriage), there may-over and above the enormous legal differences between
the two institutions-be further good reasons for insisting on a minimum age requirement as far
as the unregistered domestic partnership is concerned. These would include the need for legal
certainty as well as the prevention of abuse. The Legislature is however in the best position to
adjudicate on this issue.
199 See the two preceding notes.
200 88 of 1984.
201 Compare SALRC 2006: 338 where the Commission states that "no default property regime"
exists. The fact that "there is no general community of property between registered partners"
implies that there is indeed a default property regime.
202 The position regarding the proprietary consequences of a registered domestic partnership is
discussed in 7 below.
529
remembered that this privilege is in fact an extension of the consortium omnis
vitae that is created by marriage.203 It follows that if it can be proved that an
identical consortium should be recognised in the case of the registered domestic
partnership, the rationale for distinguishing between married couples and
registered domestic partners in respect of privileged communications would
automatically fall away.
6.3.2.3 Conclusion
According to the South African Law Reform Commission:
The registered partnership model's qualities of stability, certainty and publicity make
registered partnerships comparable to marriage, and the rights and obligations that the
coup Ie acqui.re are 0ftteenn ssiirru·1ar to marria. ge. 204
The comparison conducted above makes it clear that despite subtle differences
between the two institutions, there are significant similarities between marriage
and the registered domestic partnership. These similarities confirm that, as in
the case of the spouses to a valid marriage, the act of entering into a registered
domestic partnership alters the legal status of the parties involved.205 Moreover,
as far as consortium omnis vitae is concerned, it is clear that the autonomous
choice to enter into a status-altering registered domestic partnership creates the
same "physical, moral and spiritual community of life which imposes reciprocal
duties of cohabitation and support,,206 as that triggered by marriage.
Consequently, it is submitted that there is no reason for permitting the lack of
recognition of this concept between parties to a subsisting registered domestic
partnership (as opposed to recognising such a claim only at the termination
thereof as clause 21 of the Bill appears to do). It is however essential for the
203
Robinson et a12009: 110.
204
SALRC2006: 315.
205
SALRC2006: 322.
206
Per Madala J in Satchwel/ v President of the Republic of South African and Another 2002 (1) SA 6
(CC)at par [22].
530
Domestic Partnerships Bill to confirm this theoretical recognition in express
terms.207 In the light hereof it is submitted (i) that a provision be inserted into the
Bill which permits the Courts to give effect to claims based on consortium omnis
vitae, and (ii) that the Criminal Procedure Act 208 and the Civil Proceedings
Evidence Act 209 must extend the privilege relating to marital communication to
registered domestic partners. The first goal can be achieved by the insertion of a
provision that recognises that a consortium omnis vitae exists between the
parties to a subsisting registered domestic partnership that is identical to
marriage. This will be done in 8 below.
The second goal-namely that relating to marital privilege-was recommended
in the legislation proposed by the Commission's 2003 Discussion Paper,210but
was inexplicably discarded in the Report that appeared three years later. It is
submitted that the discussion above makes it clear that this cannot be
countenanced. It is therefore proposed that a subsection (3) be inserted into
section 1 of the Criminal Procedure Acf11 which states that: "For the purposes of
this Act, any reference to 'husband', 'wife' or 'spouse' shall include a partner to a
registered domestic partnership in accordance with the Domestic Partnerships
Act ... and any reference to 'marriage' shall bear a corresponding meaning." By
the same token, it is recommended that the same definition be inserted as
subsection (2) to section 1 of the Civil Proceedings Evidence Act 25 of 1965.
207
The impression may otherwise be created that such claims only relate to claims based upon the
death of the breadwinner-partner-see SALRC2006: 356.
208 51 of 1977.
209 25 of 1965.
210
Clause 23 of Annexure D. No reference was however made to this privilege in the Criminal
Procedure Act 51 of 1977.
211 51 of 1977.
531
7. THE PROPERTY REGIME OF THE REGISTERED DOMESTIC
PARTNERSHIP AND MATTERS RELATED THERETO
7.1 Introduction
It goes without saying that the property regime that governs a registered
domestic partnership is a matter of no small significance. Various considerations
may play a role in attempting to identify the regime that is best suited to the
registered domestic partnership. To begin with, it can be agreed with Van
Schalkwyk who opined to the South African Law Reform Commission that the
default system that applies in the case of a civil marriage (the marriage in
community of property) is a suitable option due to its economic viability.212 On
the other hand, the fact that the accrual system is becoming increasingly popular
in South Africa213 would certainly be a valid consideration in favour of that
particular regime. However, it must be remembered that whatever regime is
selected as the default property regime, it should at the very least cater for the
needs of less sophisticated oersons.i" and should be affordable.215 Finally, the
fact that the registered domestic partnership is viewed as an alternative to
marriage would also justify the conclusion that the property regimes applicable to
domestic partnerships should not simply replicate the framework governing
matrimonial property law.216 This notwithstanding, a certain amount of cross-
pollination with matrimonial property law may be required in apposite
circumstances. In the light of these broad considerations an attempt will be
made to identify the finer policy arguments that are (or should be) foundational to
this issue.
212 See SALRC2006: 330.
213 See Cronjé and Heaton 2004: 69.
214 SALRC2006: 330.
215 SALRC2006: 320.
216 Goldblatt 2003: 621; SALRC2006: 273, 274.
532
7.2 The policy considerations that should in terms of the rubric underpin
the framework governing the proprietary consequences of the
registered domestic partnership
In dealing with the proprietary aspects of the termination of the domestic
partnership Goldblatt considers a number of the arguments mentioned above,
and concludes that in order to protect both the autonomy of domestic partners
and the plurality that exists within family law, it is necessary to ensure that the
domestic partnership does not become a carbon copy of marriage.217
Furthermore, she recommends that the domestic partnership should be
accommodated within a flexible framework that not only recognises the fact that
matrimonial property law is complex, but also takes cognisance of the fact that
"the existing law of marriage is not ideal.,,218 While these sentiments can be
supported, it must be remembered that the unregistered domestic partnership
model appears to be axiomatic to Goldblatt's conclusions, with the result that
some contextualisation of her suggestions may be required in order for them to
be applied to partnerships where the parties have indeed undertaken a "formal
public commitment" by registering the partnership. In addition, it is submitted that
this study has so far shown that an additional consideration to those mentioned
by Goldblatt must be borne in mind, namely that under the "contextualised choice
model" it should in principle be appropriate to consider the fact that the parties
have chosen not to marry whenever attempts are made to apply or extend
matrimonial property law to non-formalised relatlonshlps."? As a consequence,
while it is acknowledged that a unique system is required in order to regulate the
proprietary consequences of a domestic partnership, it is submitted that any
attempt at cross-pollination with matrimonial property law beyond the confines of
that permitted by domestic partnership legislation should bear the "contextualised
choice model" in mind. It is however important, from a policy point of view, to
reiterate that matrimonial property law should not simply be replicated in
217 Goldblatt 2003: 621.
218 Goldblatt 2003: 622.
219 See 3.3.2.2 in Chapter S.
533
registered domestic partnership legislation. As a consequence, the cross-
pollination suggested should only be enforced where absolutely necessary, and
for the remainder should only be available for extension to domestic partnerships
on application where doing so is apposite or necessary.
A final aspect that needs to be addressed is the binding effect of a registered
domestic partnership agreement on third parties. Due to the fact that third
parties may incur liability towards the registered domestic partners, it is essential
that interested parties have access to information pertaining to the partners'
property regime in the form of a public register.22o In the same way that
registration binds outsiders to an antenuptial contract between spouses.i"
registration of a partnership agreement in a public register will be essential in
order for the same to hold true for outsiders to that agreement. In this regard it is
important to note that a domestic partnership agreement that does not comply
with the formalities prescribed by the Bill is regulated by the normal principles of
the law of contract as far as inter alia entering into and variation is concerned and
is therefore binding only on the parties thereto. This consequence is of particular
importance as far as the argument in favour of making the registered domestic
partnership as informal as possible is concerned: Parties who elect not to comply
with the formalities prescribed for the agreement by the Bill should be free to do
so, but the caveat that outsiders are not bound then becomes applicable.
Nevertheless, from a policy point of view it is suggested that the Bill should still
make provision for the protection of interested parties irrespective of whether or
not the formalities for binding outsiders are complied with.
The discussion that follows will attempt to assess the validity of the Domestic
Partnerships Bill based on these policy arguments.
220 SALRC2006: 327.
221 Ex parte Kloosman et Uxor 1947 (1) SA 342 (T) at 347; Ex parte Spinazze & Another NNO 1985 (3)
SA 650 (A) at 658 (D).
534
7.2.1 The proposals in the 2003 Discussion Paper
In the proposed registered partnership legislation that appeared in Annexure 0 of
its 2003 Discussion Paper the South African Law Reform Commission
recommended that the accrual system should be the default property regime for
registered domestic partners,222 while couples who did not wish to make use of
the accrual system could enter into a so-called "pre-registration agreement" in
terms of which:
(a) community of property or community of profit and loss is made applicable to
the registered partnership;
(b) the accrual system is excluded from the registered partnership; or
(c) certain property is excluded from the accrual system.223
Both prospective partners were required to sign this agreement, after which it
was to be notarially executed, submitted to the registration officer and attached to
the registration certificate which the registration officer was in terms of clause
7(4) required to issue to the partners.224 The registration certificate would serve
as prima facie proof of the existence of the partnership, while the pre-registration
agreement would serve as prima facie proof of the property regime that governed
it.225 In order to facilitate the suggested default property regime, the proposed
legislation contained a number of provisions that explicitly incorporated a
contextualised form of the accrual system as it applies in the law of marriage into
this new framework.226 It is however interesting to note that the 2003 proposed
Bill contained no similar provisions in terms of which the alternative proprietary
regimes permitted in terms of clause 10(1) were specifically incorporated into (or
contextualised for) the proposed statute. A further noteworthy aspect is that the
2003 prospective Bill provided little if any scope for registered domestic
222 Clause 9.
223 Clause 10(1).
224 Clause10(2).
225 Clause 4(5) read with clause 10(2)(d).
226 See Clauses 11-17 and 34.
535
partnerships to deviate from the traditional matrimonial property regimes. In this
respect it therefore appeared to lose sight of the autonomy and plurality
principles identified above and of Goldblatt's227argument that the "existing law of
marriage is not ideal" particularly due to the complexity of matrimonial property
law.
7.2.2 The proposals in the 2006 Report
7.2.2.1 Introduction
After considering the viewpoints of respondents to the 2003 Discussion Paper,
the argument that the accrual system was an overly complex property regime
found favour with the Commission and in its 2006 Report the Commission
decided to do away with the accrual system as the default property regime for
registered domestic partnerships. In its stead, the Commission opted for a
proposal in terms of which
the registration of a partnership should not result in a prescribed property regime. The
registered domestic partnership would thus by default be out of community of property,
ie each partner to the relationship remains the owner of his or her property before and
after the establishment of a domestic partnership. In the event of any dispute as to the
division of property, the partners will have to approach the Court. Some property will
be acquired and subsequently used for joint purposes. It may also happen that a
registered partner contributes directly or indirectly to the acquisition, maintenance or
improvement of the separate property of the other registered partner. In the absence
of agreement between the registered partners, such joint property and separate
property should be divided by a Court with the discretion to order a fair and equitable
diivr.s.ron. 228
227
2003: 622.
228
SALRC2006: 331.
536
Despite this general proposition, the Commission proposed that the legislation
should also permit couples to enter into a so-called "registered partnership
agreement" in order to permit them to "[regulate] the consequences of their
relationship, including their proprietary rights.,,229The provisions of the 2008 Bill
can now be considered against the backdrop of the Commission's conclusions.
7.2.2.2 The provisions of the 2008 Bill
In order to give effect to their conclusions as set out above, the Commission
proposed a clause dealing with the "property regime" of registered domestic
partners that was embodied in the 2008 Bill. Clause 7 of this Bill states the
following:
(1) Except as provided in this section, there is no general community of property
between partners in a registered domestic partnership.
(2) In the event of a dispute regarding the division of property after a registered
domestic partnership has ended, section 21230 of this Act applies.
(3) Registered partners may conclude a registered domestic partnership
agreement.
(4)
According to clause 1 of the Bill a "registered partnership agreement" is "a written
agreement concluded and undersigned by prospective registered partners to
regulate the financial matters pertaining to their partnership." According to the
same clause, the concept "financial matters" includes matters relating to the
"property" or "financial resources" of either or both of the parties to the registered
229 SALRC 2006: 332.
230 The reference to "section 21" (that deals with delictual claims) is clearly erroneous. Instead, the
reference should be to the appropriate parts of chapter 3 that deal with property division after
the termination of the registered domestic partnership.
537
partnership agreement. The Bill also contains definitions of both of the latter
concepts.P'
In view of what has been said, an important question that immediately springs to
mind is to what extent the parties are entitled to regulate the "financial matters"
pertaining to their partnership. Are the parties able to deviate from the general
rule that the partnership is without community of property, and, if so, to what
extent does the definition of "financial matters" permit them to exercise such a
power? Equally importantly, does the Bill in its current form provide adequate
protection for the domestic partners themselves and for outsiders to any such
agreement? In a nutshell, it is submitted that the answers to these questions are
respectively yes and no. The rationale behind this submission will now be
explained.
7.2.2.2.1 Deviation from the default regime
The autonomy and plurality arguments must be the starting point for arguing that
registered domestic partners must be provided with the discretion to deviate from
the default property regime prescribed by the Bill. Various factors appear to
indicate that the 2008 Bill does exactly this. To begin with, with the exception of
clause 8 of the Bill in terms of which a Court is effectively permitted to override
the wishes of the parties as expressed in the registered partnership agreement
231
"'property' means any movable or immovable property and includes any present, future or
contingent right or interest in or to movable or immovable, corporeal or incorporeal property,
money, and a debt;"
'''financial resources' in relation to either or both of the domestic partners includes-
(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under
which pension, retirement or similar benefits are provided;
(b) property which, pursuant to the provisions of a discretionary trust, may become vested
in or used or applied in or towards the purposes of the partners or either of them;
(c) property, the alienation or disposal of which is wholly or partly under the control of the
partners or of either of them and which is lawfully capable of being used or applied by
or on behalf of the partners or by either of them in or towards their or his or her own
purposes; and
(d) any other benefit with a value,"
538
where "serious injustice" demands that this be done, the Bill evinces no further
intention to restrict the power of the registered partners to order the financial
consequences of their relationship as they deem fit. In addition, the nebulosity of
the definitions of "financial matters", "financial resources" and "property" (quoted
above) implies that these definitions are capable of being interpreted in such a
way as to permit a dramatic departure from the default property regime. The
conclusion then is that the partners are in principle permitted to regulate the
proprietary consequences of their relationship as they please, provided that in
doing so the agreement does not fall foul of clause 8 by resulting in "serious
injustice." The effect of this conclusion is that if A and B enter into a registered
domestic partnership they may, for example, by way of a registered partnership
agreement agree that their relationship is one with community of property, or that
it is subject to the accrual system, or that it is subject to a property system of their
own creation. In this regard the 2008 Bill appears to trump its 2003 predecessor
in terms of its willingness not to confine registered domestic partnerships to the
shackles of traditional matrimonial property law, and, in so doing, takes
cognisance of Goldblatt's232cautionary remark referred to above.
7.2.2.2.2 Deviation in principle, but deviation in practice?
The fact that the Bill permits a deviation from the default property regime in
principle is one thing, but whether the Bill does so in the most effective manner
possible is quite another. In this regard the main concern is that-contrary to its
2003 prototype-the 2008 Bill provides very little guidance as to how the
traditional matrimonial property regimes are to be contextualised for the purposes
of registered domestic partnerships. For example, although it differed from its
2008 counterpart in that it prescribed the accrual system as the default
proprietary system, the 2003 version of the Bill included specific provisions in
terms of which a nuanced version of this system (as it originally appeared in the
232 2003: 622.
539
Matrimonial Property Act of 1984)233was specifically adapted for the purposes of
domestic partnerships.r" The same can unfortunately not be said of the 2008
Bill. However, while the 2003 version of the Bill was commendable in this
respect, it is important to note that it was not completely flawless as it provided
no hint of similar contextualisation as far as the other traditional property regimes
(for example community of property) were concerned; a deficiency which-with
the exception of a provision relating to the disposal of "joint property,,235-has
regrettably also been carried over into the 2008 Bill.
The upshot of this state of affairs is that if A and B wish to deviate from clause
4(1) of the Bill, their registered partnership agreement would have to do so
without the benefit of any guiding or contextualising provisions of the Domestic
Partnerships Bill. The effect hereof would be that as A and B are not married to
one another they would not without more be able to rely on statutes such as the
Matrimonial Property Acf36 or on the common law principles applicable to
matrimonial property. This would mean that if, for example, A and B wish to
register a domestic partnership with community of property, they would have to
rely on the scant protection provided by the sole provision of the Bill that
regulates disposal of joint property between them,237and in order to secure any
further protection or to facilitate any further regulation of their proprietary affairs
they would specifically have to incorporate into their agreement the common law
and statutory provisions which are necessary for this system to function
effectively between them. It goes without saying that this would require their
agreement to be drafted by a seasoned legal professional. Moreover, it also
stands to reason that any flaws in such an agreement would expose not only the
parties themselves, but also outsiders to unnecessary potential risk; a perilous
state of affairs that would be exacerbated by the fact that their unmarried status
233 88 of 1984.
234 See clauses 11-17 and 34.
235 Clause 10.
236 88 of 1984.
237 Clause 10: uA registered domestic partner may not without the written consent of the other
registered partner sell, donate, mortgage, let, lease or otherwise dispose of joint property."
540
would leave them with little protection at common law.238 Although it could surely
be argued that clause 8 of the Bill would provide relief to parties where "serious
injustice" would occur as a result of giving effect to the agreement, further
analysis of the position of parties in the position of A and B is required in order to
determine whether this is an acceptable (much less ideal) state of affairs. This
analysis will take place on the basis of three main considerations:
(a) The ambit of clause 8 of the Bill
Clause 8 of the Bill states the following:
(L) In proceedings regarding the division of property between registered partners
under this Act, a court may consider the fact that parties have concluded a
registered domestic partnership agreement: Provided that the registered
domestic partnership agreement has been indicated on and attached to the
registration certificate.
(2l If the court, having regard to all the circumstances, is satisfied that giving effect
to a registered domestic partnership agreement would cause serious injustice, it
may set aside the registered domestic partnership agreement or parts thereof.
(3l The court may, in deciding in terms of subsection (2l whether giving effect to a
registered domestic partnership agreement would cause serious injustice, have
regard to-
(al the terms of the registered domestic partnership agreement;
(bl the time that has elapsed since the registered domestic partnership
agreement was concluded;
(cl whether the registered domestic partnership agreement was unfair or
unreasonable in the light of all the circumstances at the time it was
made;
(dl whether the registered domestic partnership agreement has become
unfair or unreasonable in the light of any changes in circumstances since
238 SeeChapter 6.
541
it was made and whether those changes were foreseen by the parties or
not;
(e) the fact that the parties wished to achieve certainty as to the status,
ownership and division of property by entering into the registered
domestic partnership agreement;
(f) the contributions of the parties to the registered domestic partnership;
and
(g) any other matter that the court considers relevant.
(4) A court may make an order in terms of this section notwithstanding that the
registered domestic partnership agreement purports to exclude the jurisdiction
of the court to make that order.
(5) A court may decide any other matter regarding a registered domestic
partnership agreement on the applicable principles of the law of contract.
Clause 8 of the Bill appears to be based on section 49 of the New South Wales
Property (Relationships) Act of 1984.239 A notable difference between this Act
and clause 8 of the Bill is that the former makes provision for a Court to "vary or
set aside" the provisions of a "domestic relationship agreement" while the South
African Bill only provides for a setting aside competency in its equivalent of the
Australian agreement. This aspect of clause 8 is commendable due to the
established principle that a South African Court is not empowered to replace an
239
Section 49 entitled "[v]ariation of terms of domestic relationship agreements" states the
following:
(1) On an application by a party to a domestic relationship for an order under Part 3, a court
may vary or set aside the provisions, or anyone or more of the provisions, of a domestic
relationship agreement (but not a termination agreement) made between the parties to
the relationship, being a domestic relationship agreement which satisfies the matters
referred to in section 47 (1) (b), (c), (d) and (e), where, in the opinion of the court, the
circumstances of the parties have so changed since the time at which the agreement
was entered into that it would lead to serious injustice if the provisions of the
agreement, or anyone or more of them, were, whether on the application for the order
under Part 3 or on any other application for any remedy or relief under any other Act or
any other law, to be enforced.
(2) A court may, pursuant to subsection (1), vary or set aside the provisions, or anyone or
more of the provisions, of a domestic relationship agreement notwithstanding any
provision of the agreement to the contrary."
542
agreement reached between the parties with "a construction of its own,,240so as
to create an agreement that differs markedly from that which was originally
intended.241 Nevertheless it is important to note that if it should become evident
that the Domestic Partnerships Bill does not provide adequate regulation of the
proprietary consequences of such a partnership, it may be necessary for the
Courts to be clothed with certain powers in order better to regulate these
consequences or in order to give proper effect to the parties' original intentions.
As a conclusion in this regard can only follow after a proper evaluation of the Bill,
it will be dealt with later. The present discussion will therefore focus on problems
created by the clause that are immediately noticeable.
The first such problem is to be found in the proviso to subsection 1, where it
becomes clear that a Court is not permitted to consider the terms of a contract
that has not "been indicated on and attached to the registration certificate." Over
and above the fact that this provision is in direct conflict with clause 7(4) of the
Bill,242it is submitted that this provision frustrates the entire purpose behind the
conclusion of a registered partnership agreement in the first place. This is
because it loses sight of a basic principle of matrimonial property law that surely
by way of analogy must be relevant in the context of registered domestic partners
(a presumption that is in fact confirmed by clause 7(4)),243 namely that at
common law a lack of compliance with a formality that is intended to give effect
to the publicity principle does not imply that such an informal antenuptial contract
240 Kerr 2002: 408.
241 Laws v Rutherford 1924 AD 261 at 264; Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) at 16 (G) - (I);
Gero vLinder 1995 (2) SA 132 (0) at 136 (A) - (E); Advtech Resourcing (Pty) Ltd t/a Communicate
Personnel v Kuhn 2008 (2) SA 375 (C) at par [41]- [43].
242 "Where no indication of the existence of a registered domestic partnership agreement has been
effected on, or no copy of such registered domestic partnership agreement has been attached
to, a registration certificate as required in terms of section 6(5) and (6) of this Act, and where no
indication of the existence of such a registered domestic partnership agreement has been made
as required in terms of section 6(8) of this Act, such agreement binds only the parties to the
agreement."
243 See the preceding note for the text. If it is true that, as will be suggested later in the main text,
that "any other matter" referred to in clause 8(5) implies any matter other than the setting aside
of the agreement in terms of clause 8(2) when a property division is at issue, then the "applicable
principles of the law of contract" must overrule the proviso to clause 8(1), especially if read with
clause 7(4).
543
is void, but simply that it cannot be enforced against outsiders to the
agreement.244 However, as it stands, clause 8(1) of the Bill will have the dubious
consequence of immediately compelling a Court to disregard a contract that-
unless it falls foul of clause 8(2)-should at least still be valid and binding inter
partes. This, furthermore, would have the added outcome that whatever property
regime was contracted on by the parties would effectively be nullified with the
result that the default property regime (namely that there is no general
community)245would automatically apply to their relationship. It is submitted that
this consequence not only runs counter to basic principles of the law of contract,
but may be blatantly unfair.
A second characteristic of clause 8 that requires some comment is the strange
dichotomy that it creates between division of property disputes between the
registered domestic partners and "any other matter.,,246 To begin with,
subsection 1 of clause 8 makes it clear that a Court is only empowered to
consider the fact that a registered domestic partnership agreement exists "in
proceedings regarding the division of property between registered partners ... "
According to subsection (2), a Court is empowered to set aside the agreement or
any part thereof if "giving effect" thereto would "cause serious injustice", and in
subsection (3) a list of factors is provided in order to ascertain whether "serious
injustice" may occur. An outflow of subsection 1 read with subsections (2) and
(3) is therefore that, as a Court may only consider the existence of an agreement
where division of property between the partners is at issue (subsection 1), the
setting aside competency as encapsulated in subsections 2 and 3 only pertains
to issues involving the division of property between the partners.
244
As Price J stated in Ex parte Kloosman et Uxor 1947 (1) SA 342 (T) at 347: "[AllI that registration
does is to give notice to the world of, and to bind creditors to give effect to, a state of affairs that
has existed since the inception of the marriage." Also see Ex Parte Spinazze and Another NNO
1983 (4) SA 751 (T) at 754 (e) - (F) and, on appeal (1985 (3) SA 650 (A)) at 658 (A) - (e) and Ex
parte Andersson 1964 (2) SA 75 (e) at 77 (B).
245
See clause 7(1).
246
See clause 8(5).
544
According to subsection (5) of clause 8 "[a] Court may decide any other matter
regarding a registered domestic partnership agreement on the applicable
principles of the law of contract." It is widely acknowledged that the "the
applicable principles of the law of contract" are founded, inter alia, upon the
notions of freedom of contract and pacta sunt servanda (contractants must be
held to their aqreementsj.i" Nevertheless, while it is true that the South African
law of contract is a firm adherent to the principle that "[t]he Court cannot make
new contracts for parties; it must hold them to bargains into which they have
deliberately entered,,,248it is also a firmly-entrenched principle of our law that the
concept of pacta sunt servanda may be trumped by the Courts if the contract or a
provision therein offends public policy and is consequently unlawful.249 In Sasfin
(Pty) Ltd V Beukes 250Smalberger JA cautioned that this power
should be exercised sparingly and only in the clearest of cases, lest uncertainty as to the
validity of contracts result from an arbitrary and indiscriminate use of the power. One
must be careful not to conclude that a contract is contrary to public policy merely
because its terms (or some of them) offend one's individual sense of propriety and
fairness.251
In South African Forestry Co Ltd v York Timbers Ltd 252Brand JA expounded the
prevailing legal position as follows:
247 SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren en Andere 1964 (4) SA 760 (A) at 767 (A);
Standard Bank of SA Ltd v Wilkinson 1993 (3) SA 822 (C) at 826 (F) - (G); Ex parte Minister of
Justice: In re Nedbank Ltd v Abstein Distributors (Pty) Ltd & Donelly v Barelays National Bank Ltd
1995 (3) SA 1 (A) at 17(H); Hefer 2004: 1; Corbett 1987: 64.
248 Laws v Rutherford 1924 AD 261 at 264; Kerr 2002: 187.
249 Eastwood v Shepstone 1902 TS 294 at 302; Magna Alloys and Research SA (Pty) Ltd v Ellis 1984
(4) SA 874 (A) at 891 (G); Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) at 7 (I) - 9 (A); Botha (now
Griessel) v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A) at 781 (I) - 783 (C); Brisley v Drotsky 2002 (4)
SA 1 (SCA) at par (91); Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) at par [8); Juglal v
Shoprite Checkers (Pty) Ltd 2004 (5) SA 248 (SCA) at par [12); SA Bank of Athens Ltd v Van Zyl
2005 (5) SA 93 (SCA) at par [14); Barkhuizen v Napier 2007 (5) SA 323 (CC) at par [12); [28) and
[29).
250 1989 (1) SA 1 (A) at 9 (A) - (B).
251 Emphasis added.
252 2005 (3) SA 323 (SCA) at par [27), referred to by Christie 2006: 17.
545
[A]lthough abstract values such as good faith, reasonableness and fairness are
fundamental to our law of contract, they do not constitute independent substantive
rules that courts can employ to intervene in contractual relationships. These abstract
values perform creative, informative and controlling functions through established rules
of the law of contract. They cannot be acted upon by the courts directly. Acceptance of
the notion that judges can refuse to enforce a contractual provision merely because it
offends their personal sense of fairness and equity will give rise to legal and commercial
uncertainty. After all, it has been said that fairness and justice, like beauty, often lie in
the eye of the beholder. In addition, it was held in [Brisley v Drotsky 2002 (4) SA 1 (SCA)]
and [Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA)] that-within the protective
limits of public policy that the courts have carefully developed, and consequent judicial
control of contractual performance and enforcement-constitutional values such as
dignity, equality and freedom require that courts approach their task of striking down or
declining to enforce contracts that parties have freely concluded, with perceptive
restrai nt.253
The conclusion to be reached is that abstract values such as good faith and
reasonableness cannot of their own accord be used to strike down the provisions
of a contract.ê'" Instead, the law of contract is generally flexible enough for
adaptations to concepts such as pacta sunt servanda to be accommodated
within existing rules without recourse to such values,255and only in cases where
such accommodation is not possible will public policy become the definitive
criterion.256 Nevertheless, a contract may only be found to offend public policy in
the clearest of cases, where the actual implementation of the contract or the term
(and not the mere possibility of implementation) will lead to "unconscionable,
immoral or illegal conduct,,,257 will result in "harm to the public that is
253 Emphasisadded.
254
Hefer 2004: 12, 13; Brand 2009: 83, 84; Bris/ey v Drotsky 2002 (4) SA 1 (SCA)at par [24]; Afrox
Hea/thcare Bpk v Strydom 2002 (6) SA21 (SCA)at par [32].
255 Hefer 2004: 13.
256 Christie2006: 16.
257
Jug/a/ v Shoprite Checkers (Pty) Ltd 2004 (5) SA248 (SCA)at par [12], referred to with approval in
SABank of Athens Ltd v Van Zy/2005 (5) SA93 (SCA)at par [14].
546
'substantially incontestable'F'" or will be "inimical to the values enshrined in our
Constitution. ,,259
Returning to the Domestic Partnerships Bill, when clause 8 is read with the
conclusion reached above in respect of subsections (1), (2) and (3), a strange
dichotomy presents itself regarding the legal principles on which a Court's setting
aside competency are based, in that the "serious injustice" criterion will be
applied in the context of issues related to property division between the partners,
while the "applicable principles of the law of contract" (that is to say the existing
common law as complemented by the criterion of public policy) will be applied to
"any other matter." Although a precise analysis of the differences between these
two criteria falls beyond the scope of this study, it must be mentioned that there
is no apparent reason for subsection (2) to deviate from the public policy
criterion. As Christie260states:
[Ijt can be said with some confidence that public policy is a sufficiently flexible and
tested concept in South Africa to achieve all the results that could be achieved by the
concept of good faith and to achieve them in a more predictable way.261
It must be mentioned that it is highly questionable whether the "serious injustice"
criterion can be viewed as a "substantive rule" that is capable of being applied
independently of a judge's "personal sense of fairness and equity.,,262 In fact the
quote from Brand JA in the South African Forestry case above points in exactly
the opposite direction.263 In addition, there is no reported South African decision
258 Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) at 9 (C) (quoted with approval in De Beer v Keyser and
Others 2002 (1) SA 827 (SCA) at par [22)); Standard Bank of South Africa Ltd v Wilkinson 1993 (3)
SA 822 (C) at 828 (A) - (B).
259 Barkhuizen v Napier 2007 (5) SA 323 (CC) at par [29) (italies added).
260 2006: 17.
261 This is not to say that the concept does not require further development by, for example,
learning from other jurisdictions and in consequence of "greater awareness and imagination on
the part of practitioners"-see Brand 2009: 87 - 89.
262 Per Brand JA in South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA)at par [27).
263 "After all, it has been said that fairness and justice, like beauty, often lie in the eye of the
beholder" (emphasis added) at par [27).
547
in which the criterion of "serious injustice" has been used in order to set aside a
contract or any term contained therein. As such, the concept is bereft of the
sufficient definition required in order to ensure certainty in its application.
Moreover, the generality of the factors listed in clause 8(3 )-particularly the
"catch-all" factor listed in paragraph (g)264_does little to allay this fear. In the
end result it would appear that the "serious injustice" criterion is precisely the
type of "abstract value" that should not of its own accord be used for the
purposes of determining whether to strike down a contract or any part thereof.
Before any solution to this problem can be suggested, it is important to note that
specific legislative codification of the principles underlying the setting aside of
unfair contracts and contractual provisions appears to be unnecessary as the
common law for the most part grants sufficient and well-established powers to
the Courts to do SO,265and where the common law is lacking, constitutional
values and norms (which were introduced into the realm of the law of contract via
the concept of public policy and today form the backbone thereof)266permit the
common law to be developed.267 By the same token, the omnipresence of the
Bill of Rights and its radiating effect on all fields of South African law explains
why an explicit statutory reference to the necessity of taking constitutional values
into account in apposite cases is equally unnecessary.ê'" Nevertheless, an
attempt by the Legislature to guide the Courts in terms of factors which may
assist them in reaching a conclusion can certainly not be objectionable, provided,
of course, that these factors are linked to the correct criterion to begin with.
Even so, there would appear to be no sound reason for distinguishing between
issues relating to property division and "any other matter" regarding such a
contract.
264
"[A]ny other matter that the court considers relevant."
265
See Christie 2006: 15 with reference to the power granted by the common law to strike down
contracts that are "unconscionable" or "oppressive."
266
Brisley v Drotsky 2002 (4) SA 1 (SCA) at par [91]; Brand 2009: 84.
267
See Christie 2006: 14; 15 and 19; Hefer 2004: 5.
268
Section 8(1) of the Constitution, 1996. For the effect of the Bill of Rights on the law of contract
see Borkhuizen v Napier 2007 (5) SA323 (CC) at par [27]- [30].
548
In conclusion, it is therefore suggested:
• That both clause 8(1) and the proviso thereto must be adapted so as to
give effect not only to the established principles of the law of contract as
far as enforceability is concerned, but also to remove the distinction
between property division and "any other matter."
• Secondly, clause 8(2) and (3) should be amended in order to refer to
"public policy" instead of "serious injustice"; and
Clause 8(5) should be incorporated into the amended clause 8(2). This
would imply that the "normal principles of the law of contract" could at any
time be relied on, for example, where a party alleges that the contract is
void for lack of consensus or where the parties wish to request the Court
to exercise its common law power to rectify an agreement that does not
reflect their true intention.
The amended clause 8 would now read:
(1) In any proceedings involving either or both registered domestic partners, a court
may consider the fact that parties have concluded a registered domestic
partnership agreement: Provided that tHe a registered domestic partnership
agreement has seen indicated on and attached to the registration certificate
that does not comply with the requirements of section 7(3)269 of this Act shall
bind only the parties thereto.
(2) A Court may decide any matter regarding a registered partnership agreement on
the applicable principles of the law of contract and, in particular, if the court,
having regard to all the circumstances, is satisfied that giving effect to a
registered domestic partnership agreement or any part thereof would €<W5e
269 The necessity for a reference to section 7 will become apparent when the need for notarial
execution and registration in the deeds registry is explained in 7.3 below.
549
serious iRjustice be in conflict with public policy, it may set aside the registered
domestic partnership agreement or parts thereof.
(3) The court may, in deciding in terms of subsection (2) whether giving effect to a
registered domestic partnership agreement or any part thereof would EaH5e
serious iRjustice be in conflict with public policy, have regard to-
(a) the terms of the registered domestic partnership agreement;
(b) the time that has elapsed since the registered domestic partnership
agreement was concluded;
(c) whether the registered domestic 19artRershil9agreemeRt has become
uRfair or uRreasoRable implementation of the terms of the registered
domestic partnership agreement would have resulted in conduct that
was unconscionable, immoral or illegal 270 or in substantially
incontestable harm to the public 271 in the light of all the circumstances
at the time it was made;
(d) whether the implementation of the terms of the registered domestic
partnership agreement would result in conduct that has become ~
or uRreasoRable unconscionable, immortal or illegal 272 or would result
in substantially incontestable harm to the public 273 in the light of any
270
Amendments based on Heher JA's judgment in Juglal v Shoprite Checkers (Pty) Ltd 2004 (5) SA
248 (SeA) at par (12): "Because the courts will conclude that contractual provisions are contrary
to public policy only when that is their clear effect (see the authorities cited in Sasfin (Pty) Ltd v
Beukes 1989 (1) SA 1 (A) at 8e - 9G) it follows that the tendency of a proposed transaction
towards such a conflict (Eastwood v Shepstone 1902 TS 294 at 302) can only be found to exist if
there is a probability that unconscionable, immoral or illegal conduct will result from the
implementation of the provisions according to their tenor. (It may be that the cumulative effect
of implementation of provisions not individually objectionable may disclose such a tendency.) If,
however, a contractual provision is capable of implementation in a manner that is against public
policy but the tenor of the provision is neutral then the offending tendency is absent. In such
event the creditor who implements the contract in a manner which is unconscionable, illegal or
immoral will find that a court refuses to give effect to his conduct but the contract itself will
stand. Much of the appellant's reliance before us on considerations of public policy suffered
from a failure to make the distinction between the contract and its implementation and the
unjustified assumption that, because its terms were open to oppressive abuse by the creditor,
they must, as a necessary consequence, be against public policy" (emphasis added).
271
Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) at 9 (C).
272
Amendments based on Heher JA's judgment in Juglal v Shoprite Checkers (Pty) Ltd 2004 (5) SA
248 (SeA) at par (12) (quoted in the preceding note but one).
273
Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) at 9 (C).
550
changes in circumstances since it was made and whether those changes
were foreseen by the parties or not;
(e) the fact that the parties wished to achieve certainty as to the status,
ownership and division of property by entering into the registered
domestic partnership agreement;
(f) the contributions of the parties to the registered domestic partnership;
and
(g) any other matter that the court considers relevant.
(4) A court may make an order in terms of this section notwithstanding that the
registered domestic partnership agreement purports to exclude the jurisdiction
of the court to make that order.
(5) {\ court R'lay decide any otf:ler R'latter regarding a registered dOR'lestic
partnership agreeR'lent on the applicaBle principles of the law of contract.
Even if clause 8 were to be amended in the manner suggested above, it is
important to note that the amended clause would merely provide for better
regulation of issues arising from registered partnership agreements. This would
however not necessarily iron out other problems pertaining to the regulation of
the proprietary consequences of registered domestic partnerships that may occur
during their existence or at their termination. This aspect will be addressed in the
paragraphs that follow.
(b) The position of "interested parties" under the Bill
(i) The registered partnership agreement
An analysis of the position of "interested parties,,274 under the Bill must
commence with a discussion of the proprietary consequences of the registered
274 According to clause 1 of the Bill '''interested party' means any party with an interest in, or who
could reasonably be expected to have an interest in-
(al the joint property of the domestic partners;
(bl the separate property of either of the domestic partners; or
(cl the partnership debt of the domestic partners."
551
domestic partnership. In this regard it has so far been seen that registered
domestic partners may in principle deviate from the default regime by entering
into a registered partnership agreement. In addition, in the policy arguments
described in 7.2 above, it was seen that in order for knowledge of the contents of
such an agreement to be imputed to such parties, the public registration of the
agreement is essential.275 Finally, as pointed out in the discussion of clause 8 of
the Bill, an agreement that does not comply with the formal registration
requirements as prescribed by the Bill should still bind the parties to the
agreement. It goes without saying that a cross-reference to the provision in
which these requirements are contained (presently clause 6 of the Bill) is
pointless unless that provision is effective in achieving the publicity goal. The
first question that therefore needs to be asked is whether clause 6 of the 2008
Bill in fact does so.
The relevant provisions (subsections (5) - (10)) of the clause in question state
the following:276
(5) The registration officer must indicate the existence of a registered domestic
partnership agreement, where applicable, on the registration certificate.
(6) The registration officer must issue the partners with a registration certificate
stating that they have registered their domestic partnership and, where
applicable, attach a certified copy of the registered domestic partnership
agreement to the registration certificate.
(7) The registration certificate issued by the registration officer is prima facie proof
of the existence of a registered domestic partnership between the partners.
(8) Each registration officer must keep a register of all registrations of domestic
partnerships conducted by him or her and indicate the existence of a registered
domestic partnership agreement, where applicable, in the register.
275
See SALRC 2006: 327. Within the context of marriage and antenuptial contracts see Ex parte
Kloosman et Uxor 1947 (1) SA 342 (T) at 347 and Ex parte Spinazze & Another NNO 1985 (3) SA
650 (A) at 658 (D).
276
Emphasis and italics added.
552
(9) The registration officer must transmit the said register to the officer in the
public service with the delegated responsibility for the population register in his
or her district of responsibility.
(10) Upon receipt of the said register the officer contemplated in subsection (9)
responsible for the population register must cause the particulars of the
registered domestic partnership concerned to be included in the population
register in accordance with the provisions of section 8(e) of the Identification
Act.277
When one considers the extract quoted above, it becomes clear that the
existence of a registered partnership agreement is required to be indicated on
the registration certificate (subsection (5)). The partners themselves are required
to be furnished with a registration certificate to which a certified copy of the
registered partnership agreement (if the parties have indeed entered into such
agreement) is attached (subsection (6)). According to subsection (8) the officer
must keep a register of all registrations which he or she has conducted "and
indicate the existence" of an agreement in such register. After doing so, the
register must be transmitted to the relevant officer in the public service, after
which "the particulars of the registered domestic partnership" are to be included
in the population register (subsection (9) and (10)).278
The difficulty that should immediately become apparent when the provisions of
clause 6 are analysed is that there is no certainty as to what is to happen with the
original registered partnership agreement as entered into by the prospective
partners. In all relevant cases, mention is made only of the need for the
"existence" of such an agreement to be indicated on the registration certificate
and for the "particulars" of the partnership to be included in the population
register. Clause 6 provides no clear indication as to whether or where the
registered partnership agreement itself will be available for public inspection.
277 The necessity for an amendment to section 8(e) of the Identification Act 68 of 1997 will be
discussed in 12.2.3 below.
278 Emphasis added.
553
This state of affairs is highly problematic for, as has been emphasised throughout
this discussion, in order for the agreement to bind third parties it is imperative for
the Bill to provide for a system in terms of which all registered partnership
agreements are registered in a central register to which interested parties have
access. This aspect will be embroidered upon in the conclusion to this
discussion."?
(ii) Other protection currently provided by the Bill
The Bill must provide for protection of interested parties over and above the mere
facilitation of the means for them to acquire knowledge of the contents of a
registration agreement. In this respect the Bill currently provides protection in
two chief forms, firstly by imposing certain duties on the parties themselves or
their estates at the termination of registered partnerships, and secondly by
requiring the Courts to ensure that the interests of such parties are protected and
vesting them with a relatively broad power to do so. In the first category, clause
24 stipulates that all interested parties are to be informed in writing when the
registered domestic partnership is terminated inter vivos or by the death of one or
both registered partners. As far as the second category is concerned, clause 25
provides as follows:
(1) A court considering an application under section 210fthis Act must have regard
to the interests of a bona fide purchaser of, or other person with an interest or
vested right in, the property concerned.
(2) A court may make any order proper for the protection of the rights of interested
parties.
The first problem that clause 25 presents is that due to its inclusion under Part V
of chapter 4 (entitled "[p]roperty division after termination of registered domestic
partnership") clause 25 only appears to apply to the termination of a registered
279
See 7.3 below.
554
domestic partnership.i'" This poses the difficulty that subsection 2 of that clause
cannot be relied upon during the existence of the partnership. The adverse
implications hereof for outsiders are obvious.
A second difficulty appears when one considers the wording of clause 25(1). In
this regard the reference to "section 21" is not only clearly incorrect (section 21
deals with delictual claims, and it is assumed that the Legislature intended a
reference to "section 22" that deals with property division) but is also, it is
submitted, unnecessarily restrictive as there is no good reason for the interests of
a bona fide purchaser or any other person with a vested right in the property in
question only to be considered at the termination of the partnership or only within
the context of property division. The reference to "section 21" should thus be
replaced with a reference to the correct provision of the Bill. In addition, a
duplicate version of clause 25 should be included in an appropriate part of the Bill
so as to make it clear that the considerations of that clause do not only apply at
the termination of a registered partnership.
(c) Protecting both the partners themselves as well as outsiders in respect of
joint property
If prospective registered domestic partners in the position of A and B in the
example in 7.2.2.2.1 above wish to register a partnership that is in community of
property, the only provision that refers to such property is clause 10 which, in
dealing with the disposal of "joint property" (defined in clause 1 as "household
goods and property owned jointly in equal or unequal shares by the domestic
partners") states that:
280 See Turffontein Estates v Mining Commissioner Johannesburg 1917 AD 419 at 431 per Innes CJ:
"Where the intention of the lawgiver as expressed in any particular clause is quite clear, then it
cannot be overriden by the words of a heading. But where the intention is doubtful, whether the
doubt arises from ambiguity in the section itself or from other considerations, then the heading
may become of importance. The weight to be given to it must necessarily vary with the
circumstances of each case." Also see President of the RSA v Hugo 1997 (4) SA 1 (CC) at par [12].
555
A registered domestic partner may not without the written consent of the other
registered partner sell, donate, mortgage, let, lease or otherwise dispose of joint
property.
While it is conceded that the aim of the Domestic Partnerships Bill is not to
duplicate marriage or matrimonial property law, it is important to note that its
failure to make provision for certain vital aspects of a community of property
cannot be accepted in view of the complexities that often surround the
administration of joint property, particularly where one of the parties is not
cooperative.i'" Therefore, although various amendments will be suggested in
the paragraphs that follow, they are not aimed at cloning the marriage in
community of property but instead are intended to give effect to vital principles in
the context of matrimonial property law, the incorporation of which is deemed to
be essential for realising the greater aim of protecting the domestic partners as
well as outsiders to their relationship.
The efficacy of clause 10 can be illustrated by the following hypothetical example
in which it is assumed that A and B register a domestic partnership and conclude
a registered partnership agreement in terms of which their partnership is in
community of property. If, during the existence of the relationship, A sells an
asset that forms part of the joint property to an outsider (Z) without obtaining B's
written consent, this would imply that an infringement of clause 10 would take
place with the probable result that the transaction between A and Z would be
void for non-compliance with a peremptory statutory provision.282 It goes without
saying that being a party to an "agreement" that is void could be highly prejudicial
281 See http://www.lawinfo.org.za/yourfamily/matrimonial.asp (accessed on 18 June 2009); Cronjé
and Heaton 2004: 105; Visser and Potgieter 1998: 88. Compare Van Wyk 198s(a): 22 and
198s(b): 61 who does not mention this as a problem and in the latter source states that "[t]he
reformed community of property seems the most suitable system for the average young couple
starting married life with few assets ... This system works fairly simple in practice and gives equal
recognition to both spouses; it thus reflects the reality of most households" (emphasis added).
282 Schierhout v Minister of Justice 1926 AD 99 at 110. It could however possibly be argued that non-
compliance with clause 10 does not lead to nullity in view of the fact that this would be
detrimental to outsiders. This possibility is discussed below.
556
to Z. To make matters worse, in its current format clause 25 would be of little
assistance to Z unless the registered partnership was being terminated,283 and
even if a duplicate of clause 25(2) were to be inserted as was suggested above,
this would necessitate a Court application by Z. Furthermore, even if Z could
somehow succeed in validating the transaction between himself and A,284B
would be adversely affected by the fact that no statutory provision would be
made for a right of recourse in order to be compensated for his or her loss.
The scenario sketched above would have a completely different outcome if
clause 10 were to include a statutory provision similar to section 15(9) of the
Matrimonial Property Acr85 that deems such a transaction to be valid provided
that certain requirements are met. It is therefore suggested that a customised
format of this provision should be inserted into clause 10 of the Bill.
In furthering the attempt to secure greater protection for the registered domestic
partners, it must be mentioned that clause 10 appears to be lacking for not being
framed broadly enough as it is silent on other types of transactions for which
consent should certainly be required.286 To this end it is suggested that the
clause in question ought to be amended so as to include transactions involving
the burdening, ceding, or pledging of joint property. In addition, clause 10 should
283 See b(ii) above.
284 This may, for example, occur if it could successfully be argued that clause 10 is not of a
peremptory nature. In Meeg Bank Ltd v Waymark 2004 (5) SA 529 (SCA) at par [15] Mpati OP (as
he then was) stated that "[w]hether a provision is peremptory or directory may very well depend
on the scope and purpose of the legislation at issue." This consideration, coupled with the fact
that one of the stated objectives of the Bill is to protect "interested parties" (see clause 2) may
lead to the conclusion that the harsh effect of voidness on "interested parties" would subvert
one of the stated objectives of the Act (see Commercial Union Assurance Co of SA Ltd v Clarke
1972 (3) SA 508 (A) at 518 (C)). This conclusion is however highly speculative and it is therefore
submitted that the safest route would be to assume that clause 10 is peremptory in nature and
that, as suggested in the main text, a contextualised form of section 15(9) of the Matrimonial
Property Act 88 of 1984 should therefore be inserted into Clause 10.
285 88 of 1984.
286 In the context of the marriage in community of property consent is required for transactions
which may be prejudicial to the other spouse's share of the joint estate-see Amalgamated
Banks of SA Bpk v De Goede 1997 (4) SA 66 (SCA) at 74 (D). Van Wyk 198s(a): 22 states that the
joint consent requirement is required regarding assets of a capital nature. It is submitted that
the same principle should apply to registered domestic partners.
557
provide a mechanism by which a registered domestic partner's power to bind the
joint property can be suspended where this is necessary for protecting the
interests of either partner. Finally, as was pointed out above, non-compliance
with clause 10 of the Bill (as it stands) would more than likely result in a
transaction performed without the written consent of both registered domestic
partners being void ab initio for contravention of a peremptory statutory provision.
While the inclusion of the consent requirement in this clause as a general rule is
undoubtedly sound, it is submitted that the failure of clause 10 to provide for
ratification to take place makes it unduly formalistic and implies that it is not in
keeping with the Law Reform Commission's stated aim of simplifying the
registered partnership model.287 It is consequently submitted that a ratification
provision similar to that contained in the Matrimonial Property Act will solve this
problem. Such a clause should however heed the fact that matrimonial property
law holds that ratification is not possible in a select category of transactions.P"
The amended clause 10 of the Bill should therefore read as follows (all
amendments and insertions in italics):
(1) A registered domestic partner may not without the written consent of the other
registered partner sell, donate, mortgage, burden, cede, pledge, let, lease or
otherwise dispose of joint property.
(2) The consent required for the purposes of subsection (1) may, except when
required for the registration of a deed in a deeds registry or for the purposes of
suretyship, also be given by way of ratification within a reasonable time after
the act concerned.
(3) On application by a registered domestic partner a Court may suspend for a
definite or indefinite period the powers granted to either of the partners to deal
with joint property under a registered partnership agreement or under any law if
287
SALRC2006: 320.
288
Ratification is not possible in the case of transactions that require registration in the deeds office
(section 15(2)(a) of the Matrimonial Property Act 88 of 1984) and where a spouse attempts to
bind him- or herself as surety (section 15(2)(h) of the same Act).
558
the Court is of the opinion that doing so is necessary to protect the interests of
either or both registered domestic partners;
(4) When a registered partner enters into a transaction with a person contrary to
the provisions of subsection (1) or (3) of this section, and
(a) that person does not know and cannot reasonably know that the
transaction is being entered into contrary to either of the said
subsections, it is deemed that the transaction is entered into with the
consent required under subsection (1);
(b) that registered partner knows or ought reasonably to know that he or
she will probably not obtain the consent required in terms of subsection
(1) or that his or her powers have been suspended under subsection (3)
and the other registered partner's share of the joint property suffers a
loss as a result of that transaction, an adjustment shall be effected in
favour of that other registered partner upon the division of the joint
property.
(5) A Court may, on application of a registered domestic partner, grant him or her
leave to conclude a transaction without the consent required under subsection
(1) if the Court is of the opinion that such consent is being withheld
unreasonably, or may dispense with such consent where the Court is of the
opinion that there is a good reason for doing so.
7.2.2.2.3 Preliminary conclusion
The default property regime as provided for in the Domestic Partnerships Bill
requires better regulation in order to protect both the registered domestic
partners themselves as well as outsiders. To this end it has been suggested that
the Court's power to consider the contents of and to set aside the registered
partnership agreement or any part thereof needs to be revised and that the
registration requirements for such agreements need to be expanded. It has also
been opined that valuable lessons can be learned from matrimonial property law
in terms of protecting the joint property of the partners.
559
7.3 Application of these findings
7.3.1 General
After considering the arguments and findings in the foregoing discussion it should
be clear that the Bill in its current form exposes both the prospective parties to a
registered partnership agreement as well as other interested parties to a
substantial risk in as far as the property regime of a registered domestic
partnership is concerned. The amendments proposed in the preceding
paragraphs should therefore be implemented. However, as mentioned in the
policy considerations in 7.2 above, further modification of the Bill will need to take
place in order to bind third parties to registered partnership agreements and to
provide better protection to the partners themselves as well as to outsiders in
terms both of the contents of such agreements as well as the amendment
thereof. In order to address these issues, the following solutions are proposed:
7.3.2 Notarial execution
In the 2003 Discussion Paper the Commission recommended that all pre-
registration agreements had to be notarially executed before being handed to the
registration officer.289 In the 2006 Report this requirement was presumably
revised for the sake of a less complex and more informal registration process.290
It is submitted that if this is indeed the case, the rationale behind discarding the
requirement of notarial attestation is not convincing. To begin with, it has been
seen that not only the parties themselves, but also outsiders potentially stand to
be bound by the contents of a registered partnership agreement.291 This alone
points to the fact that such an agreement is not comparable to an ordinary
contract which binds only the parties thereto. Consequently, as a matter not only
of policy but also of pure pragmatism, there is simply no good reason for
289 Clause 10(2)(b) and (c).
290 SALRC2006: 331.
291 Clause 7(4) of the Bill (in its original form).
560
permitting the parties to a registered domestic partnership effectively to achieve
the same results by virtue of their agreement as spouses who have entered into
an antenuptial contract could without requiring of the former group to comply with
comparable formal requirements in order to do so.
In addition, it has been seen that even if the amendments proposed in the
preceding paragraphs were to be implemented this would not sufficiently
circumvent the risks to which parties to a badly-drafted agreement could be
exposed. In this respect, if the age-old proverb that "an ounce of prevention is
better than a pound of cure" is to be believed, the question could rightly be asked
as to why remedial as opposed to pro-active action would be required in order to
protect vulnerable parties to such an agreement. These sentiments draw
attention to a paradoxical situation created by the 2008 Bill in that, in attempting
to purge the registered domestic partnership of excessive rigidity and formality in
the interests of removing the possibility that "an unsophisticated couple register a
partnership and find themselves in a property regime that they did not expect and
do not understand,,,292the Bill in its current form provides virtually no protection
for the same "unsophisticated couple" who may enter into a contract without
proper legal advice. In fact, the question can rightly be asked whether the Bill
does even a more "sophisticated" couple any favours by leaving them to their
own devices in order to regulate a vital aspect of their relationship in the almost
fatalistic hope that their partnership will successfully be able to withstand the
vicissitudes of domestic life and of legal traffic.293 Simplicity clearly has limits
beyond which it cannot be pressed. After all, as Albert Einstein is reported to
have said "everything should be made as simple as possible, but not simpler.,,294
As a notary public is responsible for the "correctness of all aspects of [a] notarial
deed,,295it is suggested that clause 7 of the Bill should be amended in order to
292 SALRC2006: 331.
293 This issue is considered in 7.3.4.2 below.
294 Shapiro and Epstein 2006: 231.
295 Christie 2008: l.S.
561
provide for notarial execution of all registered partnership agreements as a
means of protecting the parties and outsiders. The proposed amendment to this
clause will be illustrated after the paragraph that follows.
7.3.3 Registration of domestic partnership agreements and witnessing
requirement
When the position of outsiders was dealt with in 7.2.2.2.2 (b) above, it was
concluded that a central register for all registered domestic partnership
agreements was essential in order for the protection of such persons. This could
conceivably be accomplished in one of two ways, either (i) by the creation of
such a central register in the Department of Home Affairs, or (ii) by making use of
the same registration procedure provided for in the case of antenuptial contracts
in the case of marriage.
In deciding which one of these two possibilities is preferable it must be
remembered that the fact that third parties stand to be bound by the registered
partnership agreement implies that the requirement of a central registration
system is not debatable. Registration in a public registry is a sine qua non for
binding outsiders to the agreement. The question is therefore not whether such
a system is required, but rather how it should function.
While the first option (a register in the Department of Home Affairs) may succeed
to some or other extent in maintaining the "informal" character of registered
domestic partnerships, it is submitted that the arguments that were listed in
paragraph 7.3.2 where the case for notarial attestation was put forward point to
the second option (the deeds registry) as the most viable. In addition to these
arguments, the following points should be considered:
• The system of registration in the deeds registry is an established and
reliable system;
562
• By making use of an infrastructure that is already in place the deeds
registry option would not require the establishment of a new system and
would avoid the structural and administrative expenditure and resource
allocation that such a new system would otherwise require;
• The requirement of registration in the deeds registry would link up with the
requirement of notarial attestation that was suggested for registered
partnership agreements in 7.3.2 above; and
• The requirement of registration in the deeds registry would avoid
confusing the registration requirements prescribed for antenuptial
contracts with those prescribed for registered partnership agreements.
A few obvious downsides of the deeds registry requirement would be that it
would involve expenditure for the partners, and that it would formalise the
process to some extent and, as a consequence, in itself require a certain level of
"sophistication" of the partners. The first concern can for the most part be
disposed of by considering the arguments mentioned in paragraph 7.3.2 above,
with the result that the increase in formality and the minimal expenditure required
would be a fair price to pay in order for the parties to be able to achieve what
their married counterparts could by way of an antenuptial contract. Regarding
the second concern it is submitted that it cannot seriously be contended that
parties who are "sophtsticated='" enough to enter into a partnership agreement
in the first place are not also "sophisticated" enough to have the agreement
properly registered. Indeed, "unsophisticated" parties would have the default
property regime available to them, or, failing that, the unregistered partnership
model. By the same token, it must be remembered that the notarial attestation
and registration requirements are only prescribed for the agreement to be binding
on persons who are not parties to the agreement. Nothing would prevent the
domestic partners (regardless of their degree of "sophistication") from concluding
an agreement which would only be valid inter partes. The additional formalities
suggested above would therefore not overcomplicate matters for parties who
296
See SALRC 2006: 331.
563
prefer to regulate their property regime in a less formal manner, provided that
they take cognisance of the caveat that would then apply, namely that their
agreement does not bind outsiders thereto.
In an aside, while the aspect of witnesses is not directly relevant either to the
position of third parties or to the property regime of registered domestic partners,
it will be recalled that in 5.2.3.1 above it was mentioned that the witnessing
requirement is still necessary in view of the formal public commitment undertaken
by the parties and in view of the status-altering effect of the decision to conclude
a registered domestic partnership. As such it is convenient to include the
amendments suggested in this regard to the amendments suggested regarding
the registered partnership agreement. It must be noted that if clause 7 of the Bill
is amended in the manner suggested below, this will remove the necessity for
clause 6(5) - (10) of the Bill being amended.
The amended versions of clauses 6 and 7 of the Domestic Partnerships Bill
would read as follows (proposed insertions in italics):
6. Registration of domestic partnerships
(1) Subject to section 4, any two persons who are both 18 years of age or
older, may register their relationship as a domestic partnership as
provided for in this section.
(2) A registration officer must conduct the registration procedure on the
official premises designated for that purpose and in the manner
provided for in this section.
(3) The prospective partners must individually and in writing declare their
willingness to register their domestic partnership by signing the
prescribed documents in the presence of the registration officer and
two competent witnesses.
564
(4) The registration officer and the two competent witnesses must sign the
prescribed documents to certify that the declaration referred to in
subsection (3) was made voluntarily and in his or her presence.
(5)
7. Property regime
(1) Except as provided in this section, there is no general community of
property between partners in a registered domestic partnership.
(2) In the event of a dispute regarding the division of property after a
registered domestic partnership has ended, section 22 of this Act
applies.
(3) Registered partners may conclude a registered domestic partnership
agreement which must-
(a) be signed by both prospective registered partners;
(b) be attested by a notary public;
(c) be handed to the registration officer before or on the date of
registration of the registered partnership; and
(d) be registered in a deeds registry within three months of
execution or within such extended period as a court may on
application allow.
(4) Registration of a registered domestic partnership agreement in anyone
deeds registry in the manner prescribed in this section shall be effective
as registration for the whole Republic: Provided that if any transaction in
connection with which evidence of such agreement is necessary takes
place in a deeds registry other than that in which such agreement has
been registered, a copy of such agreement certified by the registrar of
the place of registration or a notary public shall be recorded and filed in
suehf'tirst-mentio.ne d deeds reg/.stry. 297
(5) Where RO iRdicatioR of the e)(istence of a registered domestic
f3artnershif3 agreemeRt has beeR effected on, or no cOf3V of sblch
297 Section 87(3) of the Deeds Registries Act 47 of 1937.
565
registered dOR'lestic l3artRershil3 agreeR'leRt has beeR attached to, a
registratioR certificate as reEfl:Jired iR terR'lS of sectioR &(S) aRd f&} of this
Act, aRd where RO iRdicatioR of the e)(isteRce of sl:Jch a registered
dOR'lestic l3artRershil3 agreeR'leRt has beeR R'lade as reEfl:Jired iR terR'lS of
sectioR &(B)of this Act, the requirements of subsection (3) of this section
have not been complied with, such agreement binds only the parties to
the agreement.
The amendment of clause 7(3) explains the necessity for the cross-reference
between this provision and clause 8(1) of the Bill as illustrated in 7.2.2.2.2 (a)
above.
7.3.4 The supervisory role of the Courts
7.3.4.1 Alteration of the property regime and division of joint property
One aspect that seems to have been overlooked in both the Bill as it appeared in
the 2003 Discussion Paper as well as in the 2008 draft Bill is the possibility that
registered domestic partners may wish to amend a particular provision in their
agreement or even to alter their property regime in toto. By virtue of the fact that
registration of the registered partnership in the deeds registry has been
suggested in the preceding discussion, it follows that any post-registration
amendment to such an agreement will also require an amendment to the
registered deed. A question that immediately comes to mind is what the position
will be where registered domestic partners attempt to amend their property
regime (as regulated by a properly-registered partnership agreement) by way of
an informal agreement that does not comply with the formalities prescribed by
the Bill. The prevailing position regarding matrimonial property law provides a
starting point for predicting the possible outcome of such a decision, as the issue
as to whether an informal post-nuptial agreement that has been entered into by
spouses amends a valid and properly-registered antenuptial contract came
566
before the Witwatersrand Local Division298 in the case of Honey v Honey in
1991.299 In casu the Court held that the second contract (which although it had
been notarially executed had not been registered in the deeds registry) was
void.300 Van Schalkwyk301correctly points out that the judgment can be criticised
on the basis that the authority relied on by Du Plessis J (section 2 of the
Matrimonial Property Act 88 of 1984) does not deal with postnuptial agreements
but regulates the position with regard to antenuptial agreements. Van Schalkwyk
does however acknowledge that nothing turns on the dubiousness of this
authority as it does not affect the outcome of the case. He also mentions that the
Court's finding that the immutability principle (in terms of which the matrimonial
property system is presumed to be inalterable so as to protect third parties)302is
an independent substantive common law rule is justified on the Court's
interpretation of the common law authority. As a result, Van Schalkwyk opines
that the Court's finding is both logical and correct.303 In consequence of the
Honey judgment the positive law dictates that such a second informal
"agreement" is null and void, with the result that the first agreement stands. This
valuable lesson should not be overlooked in domestic partnership legislation.
It is submitted that Van Schalkwyk's conclusion that section 21 (1) of the
Matrimonial Property Act creates a statutory means of overcoming the strictures
of the common law rule as it was applied in the Honey case can be used to
strengthen the argument for similar statutory regulation of the amendment of
registered partnership agreements. If however, no such legislative regulation
were to be forthcoming, registered domestic partners would be left with two
choices, namely either (i) to attempt to vary their property regime (as contained in
298 Now the South Gauteng High Court, Johannesburg-see the Renaming of High Courts Act 30 of
2008.
299 1992 (3) SA 609 (W).
300 At 614 (H) - (I).
301 1993: 218-22l.
302 See Sper/ing v Sper/ing 1975 (3) SA 707 (A) at 723 (B) - (C).
303 At 220. Cronjé and Heaton (2004(a): 179) opine that the immutability principle cannot be used
to justify the argument that the second agreement cannot at least be binding inter partes, as no
prejudice to third parties could result from an agreement that binds only the parties thereto.
567
the properly-registered domestic partnership agreement) by entering into a
second informal agreement and to take the chance that the informal agreement
will be found to be null and void; or (ii) to opt, from the outset of their relationship,
for concluding an informal registered partnership agreement that is only binding
inter partes and therefore although being capable of subsequent informal
amendment is not binding on outsiders to the agreement. It stands to reason
that neither situation is desirable, with the result that statutory intervention is
urgently required.
7.3.4.2 Extension of matrimonial property law to registered domestic
partnerships-the "contextualised choice model" revisited
The difficulties created by the 2008 Bill are unfortunately not limited to a lack of
statutory provision for the amendment of a registered partnership agreement or
to its failure to prescribe proper formalities in order for it to bind third parties.
Indeed, as seen in the discussion above, one of the biggest hazards is created
by the fact that the Domestic Partnerships Bill of 2008 provides no guidelines
regarding the contents of a registered partnership agreement, which implies that
the parties are left to their own devices regarding the proprietary consequences
of their relationship. While the process of notarial execution was suggested
above with the precise aim of ironing out many of these difficulties right from the
outset of the relationship, the preceding analysis of clauses 8, 24 and 25 of the
Bill above makes it clear that these provisions do not provide adequate protection
during the existence of the relationship as far as either the parties themselves or
outsiders are concerned. It may therefore be necessary for the partners to have
recourse to the High Court where insurmountable difficulties surface while the
partnership subsists.
Upon first contemplation of this problem the solution that immediately springs to
mind is to suggest that any lacunae created or caused by a lack of adequate
regulation of the property regime of a domestic partnership could be cured by
568
means of a process of "cross-pollination" with matrimonial property law. This
issue is, however, not as simple as it seems. This much has been pointed out
throughout this study within the context of the so-called "choice argument" and
the resultant "contextualised choice model." In this regard it may be recalled
that, on the basis of the Canadian case of Nova Scotia (Attorney General) v
Walsh, 304a distinction was drawn in Chapter 5 between claims based on
"spousal support" (need-based claims) and those which involve the "division of
matrimonial assets" (property disputes).305 While the choice not to marry could
not justify the refusal to extend the former type of claim to unmarried couples, the
model holds that the refusal to extend principles of matrimonial property law to
unmarried couples may be justifiable on the basis that they have purposefully
elected not to marry one another and hence not to "opt in" to the proprietary
consequences of marriage. On the basis of this finding it was concluded in that
Chapter that:
While section 9 of South Africa's Constitution, 1996 is more encompassing than its
Canadian counterpart as far as the grounds of unfair discrimination are concerned, it is
submitted that the opinion expressed by Gonthier J [in Walsh] will also hold true in a
South African context. Consequently, the failure of the law to permit asset distribution
(that is to say claims other than need-based claims) between life partners to take place
in the same way as for married partners would not necessarily constitute a violation of
the ri.ght to equa I·itv,306
It was further opined, in the light of Volks NO v RObinson,307 that if it is borne in
mind that the Constitutional Court was prepared-on the basis of the "choice
argument"-to hold that the refusal to extend a need-based claim to an
unmarried heterosexual cohabitant did not constitute unfair discrimination, it
would be even more difficult for a subsequent Court to hold that the refusal to
304 2002 SCC83, 32 R.F.L. (5th) 81, 221 D.L.R. (4th) 1, 211 N.S.R. (2d) 273, 102 C.R.R. (2d) 1, [2002] 4
S.C.R.325, 297 N.R. 203, 659 A.P.R. 273, REJB2002-36303, J.E. 2003-102.
305 PerGonthier J in Wa/sh at par 203.
306 See 3.3.2.2 in Chapter 5, footnotes omitted.
307 2005 (5) BCLR446 (CC).
569
extend an aspect of matrimonial property law to a cohabitant in a similar position
did in fact violate the right to equality.30B
As a result the "contextualised choice model" made the preliminary conclusion
that:
[I)f the extension sought by a life partner who has clearly chosen not to formalise his or
her relationship is based on a property dispute (division of assets), a presumption
should apply to the effect that the "choice argument" is relevant, for, as Sachs J put it
"merely choosing to cohabit [is) insufficiently indicative of an intention by cohabitants
to share and contribute to each other's assets and liabilities." In such an instance the
"choice argument" would be a highly persuasive factor in deciding to exclude the
possibility of applying matrimonial (property) law to solve the dispute; as a consequence
of which the ordinary principles of the law of obligations would determine the matter.
However, the fact that the law of obligations does not currently provide the ideal
structure for the regulation of such claims between life partners (this issue is discussed
in detail in Chapter 6) provides ample evidence of the dire need for legislative
.interventio"n In t hiIS regar d.309
It is of cardinal importance to note that these conclusions were drawn within the
context of life partnerships in the narrow sense, where the partners (i) are not
married in terms of civil, customary or religious law or (ii) have not concluded a
civil partnership in the prevailing family law system while no alternative statutory
framework exists within which they are enabled to solemnise their relationship.
However, if it were to be enacted as an Act of Parliament, the Domestic
Partnerships Bill would have a dramatic effect on this state of affairs by (at least
in principle) providing the said alternative statutory framework. However, as
seen in Chapter 3, the domestic partnership rubric requires that the Bill should-
where appropriate-be modified in accordance with the conclusions reached in
(inter alia) Part 2 of this study. The 2008 Bill provides the ideal sounding-board
308
See 3.3.1.1 in Chapter 5.
309
See 3.3.2.2 in Chapter 5, footnotes omitted.
570
for testing the preliminary conclusions reached regarding the "contextualised
choice model."
The starting point in this regard is to note-as has been explained earlier-that
the long title of the Bill as well as its preamble and stated objectives'"" leave no
doubt as to the fact that it is intended to provide the legislative substructureê'" of
the domestic partnership in South African law (and, therefore, of the domestic
partnership rubric).312 As such, the Bill should be expected, through
comprehensive and effective regulation of these partnerships, to provide a
realistic alternative to marriage. The method by which the Legislature appears to
intend to do so is illustrated in the preamble to the Bill, which notes firstly that
according to section 9(1) of the Constitution, 1996 "everyone is equal before the
law and has the right to equal protection and benefit of the law", and secondly
that there is no existing "legal recognition or protection" for domestic partners.I"
From the way in which this preamble is constructed the conclusion can be
reached that the Bill intends to regulate domestic partnerships by way of
correlating the right to equality with the recognition provided. In other words, the
right to equality is to provide the benchmark for determining the extent to which
the current lack of recognition and protection of such partnerships is to be cured
by the Bill.
Given the content of the 2008 Bill, the question that needs to be answered is
whether any discrepancy that persists between matrimonial property law and the
property regime as provided for in the Bill may constitute an infringement of the
equality clause to the extent that the Bill does not provide "equal protection and
benefit of the [matrimonial property] law." The following example illustrates a
scenario that may potentially arise if the Bill were to be enacted in its present
form:
310 Clause 2.
311 See 1 above.
312 See 5 in Chapter 3.
313 The need for a correction of the reference to "opposite-sex couples" was explained in 3.1 above.
571
Assume that X and Yenter into a registered domestic partnership. They
approach an attorney who drafts a registered partnership agreement in terms of
which the accrual system is made applicable to their domestic partnership by
means of the following provisions:
(1) At the termination of the registered domestic partnership between X and Y, the
accrual of each partner's estate is to be determined by subtracting the net value
of each partner's estate at the commencement of the partnership from the net
value of his or her estate at the termination of the partnership.
(2) The partners agree that the inventories of assets and their corresponding values
as listed in the annexures to this agreement are to be used for the purposes of
proving the net commencement value of the partners' respective estates. X's
inventory is attached as Annexure A, and y's inventory is attached as Annexure
B.
(3) At the termination of the partnership, the registered partner whose estate
shows no accrual or a smaller accrual than the estate of the other registered
partner, or his or her estate if he or she is deceased, acquires a claim against the
other registered partner, or his or her estate if he or she is deceased, for an
amount equal to half of the difference between the accrual of the respective
estates 0f tnhe regi.stere d partners. 314
No other provision pertaining to the accrual system is to be found in the
agreement. Furthermore, as notarial attestation is not required by the relevant
legislation, the agreement was never scrutinised by such a professional prior to
being signed by the parties. Shortly before X and y's relationship begins to
deteriorate, Y inherits the sum of R 500 000 from her father who died intestate.
When X and Y decide to terminate their partnership, X, inter alia relying on the
principle of pacta sunt servanda, insists that y's inheritance must form part of the
314
Example taken from clause 14(1) of the proposed registered partnership legislation as contained
in Annexure D of the SALRC's2003 Discussion Paper.
572
accrual calculation as their agreement contains no provision that excludes such
an inheritance from the calculation. Y alleges that the Domestic Partnerships
[Act] is unconstitutional to the extent that it violates section 9 of the Constitution,
1996 by not providing her with "equal protection and benefit" that section 5(1 )315
of the Matrimonial Property Acf16 provides for spouses to a marriage to which
the accrual system applies. Would Y succeed in her claim?
In attempting to answer this question it is submitted that valuable insights can be
gained from the judgment of the Constitutional Court in Van der Merwe v Road
Accident Fund and Another (Women's Legal Centre Trust as Amicus Curieeï.:"
In this case the crisp issue was whether the fact that section 18(b) of the
Matrimonial Property Act318 did not provide for a spouse married in community of
property to be compensated for patrimonial loss for bodily injuries sustained due
to the fault of the other spouse-while the same restriction did not apply to
spouses married out of community of property-constituted a violation of the right
to equality.319
One of the first important aspects of this case is that it was argued that the
impugned section in Act 88 of 1984 violated section 9(1) and 9(3) of the
Constitution by infringing a spouse married in community of property's "right to
equal protection and benefit of the law", as well as by discriminating unfairly on
the listed ground of "marital status.,,320 Dealing with the latter contention first,
Moseneke DCJ held that the distinction created by section 18(b) did not involve a
benefit that was reserved for married as opposed to unmarried couples, but
instead differentiated between married couples on the basis of their respective
315 This section states that "[a]n inheritance, a legacy or a donation which accrues to a spouse during
the subsistence of his marriage, as well as any other asset which he acquired by virtue of his
possession or former possession of such inheritance, legacy or donation, does not form part of
the accrual of his estate, except in so far as the spouses may agree otherwise in their antenuptial
contract or in so far as the testator or donor may stipulate otherwise."
316 88 of 1984.
317 2006 (4) SA 230 (CC).
318 88 of 1984.
319 Par [1] and [3].
320 Par [44].
573
matrimonial property regimes.321 For this reason this case differed from earlier
case law dealing with this listed ground (all of which had revolved around the
distinction between married versus unmarried couples) as the matter in casu
dealt with different regimes within the law of marriage.322 Without making a
decisive ruling in this regard, Moseneke DCJ expressed his reservations as to
whether the listed ground of "marital status" could be interpreted so liberally as to
include a matter of this nature for "[i]f that were so, it would imply that any
difference in proprietary consequences of marital regimes prescribed by the
common law or legislation is presumptively discriminatory and unfair unless
shown not to be.,,323
Instead, Justice Moseneke held that the case fell to be decided with reference to
section 9(1) of the Constitution, and therefore, in accordance with the test for
unfair discrimination as formulated in Harksen V Lane NO and Others,324 it had to
be determined whether "the differentiation bear[s] a rational connection to a
legitimate government purpose.,,325 The premise from which this analysis
needed to proceed was "to ensure that the [constitutional] State is bound to
function in a rational manner.,,326 According to Moseneke DCJ, it was true that
laws often treated persons differently. However
when a law elects to make differentiation between people or classes of people it will fall
foul of the constitutional standard of equality if it is shown that the differentiation does
not have a legitimate purpose or a rational relationship to the purpose advanced to
validate it. Absent the pre-condition of a rational connection the impugned law
infringes, at the outset, the right to equal protection and benefit of the law under s 9(1)
of the Constitution. This is so because the legislative scheme confers benefits or imposes
321
Par [45].
322 Par [46].
323
Par [47].
324
1998 (1) SA 300 (CC).
325
Per Goldstone J in Harksen v Lane NO and Others 1998 (1) SA 300 (CC) at par [53] as quoted by
Moseneke DCJat par [42].
326
Per Ackermann, O'Regan and Sachs JJ in Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) at par [25]
as quoted by Moseneke DCJat par [48].
574
burdens unevenly and without a rational criterion or basis. That would be an arbitrary
differentiation which neither promotes public good nor advances a legitimate public
object. In this sense, the impugned law would be inconsistent with the equality norm
that the Constitution imposes, inasmuch as it breaches the 'rational differentiation'
standard set by s 9(1) thereof.327
The distinction created by section 18(b) was, according to the Court, based on
the notion that pre-eminence had to be given to preserving the joint estate as a
cohesive unit that in turn implied that inter-spousal claims for patrimonial loss
were futile as they would be paid from and immediately fall back into the joint
estate. However, this rationale was a "relic of the common law of marriage"
which not only was outdated, arbitrary and detrimental to third parties, but could
easily be remedied by providing for any damages awarded to an injured spouse
to fall into that spouse's separate estate.328 Furthermore
by prohibiting recovery of patrimonial damages for personal injury, s 18(b) arbitrarily
prevents the fullest possible compensation for spouses who are victims of violence,
negligent driving or other wrongdoing that leads to bodily harm by their marriage
partners.329
On behalf of the Road Accident Fund it was contended that the limitation
imposed by section 18(b) was justifiable on the basis that the matrimonial
property regime that applied to any given marriage was a matter of choice to
which, once exercised, the spouses were immutably bound.33o This argument-
categorised by the Court as implying a "waiver defence" that effectively entailed
that the spouses to a marriage undertook not to challenge any laws to which their
marriage were subjected331-was disposed of by the Court on two counts:
327 Par [49] (emphasis and italics added).
328 Par [51]- [55].
329 Par [56].
330 Par [59].
331 Par [60].
575
(i) The Constitution itself, and not the "personal choice, preference,
subjective consideration or other conduct of the person affected [thereby]"
determined the constitutional validity of a law;332and
(ii) The State had not submitted any grounds upon which a legitimate purpose
for the limitation in question could be construed.ê"
In the end result the court held that section 18(b) "[failed] the rational connection
test,,334and therefore needed to be rectified by severing the words which
imposed the distinction between patrimonial and non-patrimonial loss therefrom,
and by reading words to the effect that any damages so awarded fell into the
separate estate of the injured spouse into it.335
Returning to the position of X and Y: Would Y succeed in her claim that the
Domestic Partnerships [Act] is unconstitutional to the extent that it does not
protect her in the same way as section 5(1) of the Matrimonial Property AcP36
would have done if she had been married to X? Her counsel could aver that the
broader legislative scheme differentiates between spouses and registered
domestic partners by conferring benefits on an inconsistent basis. In order to
substantiate this argument she could rely on the following dictum by Sachs J in
Minister of Home Affairs v Fourie:337
332 Par (61).
333
Par (62), (63).
334 Par (70).
335
Par (80). As a postscript it is noteworthy of mentioning that section 21 of the Judicial Matters
Amendment Act 66 of 2008 (which came into operation on 15 February 2009) has amended
section 18(b) in order to give effect to the order in the Van der Merwe case. The subsection in
question now reads: "Notwithstanding the fact that a spouse is married in community of
property-
(a)
(b) he or she may recover from the other spouse damages in respect of bodily injuries
suffered by him or her and attributable either wholly or in part to the fault of that
spouse and these damages do not fall into the joint estate but become the separate
property of the injured spouse."
336
88 of 1984.
337
2006 (1) SA 524 (CCj.
576
The law must be measured in the context of what is provided for by the legal system as
a whole. In this respect, exclusion by silence and omission is as effective in law and
practice as if effected by express language.338
While counsel for Y may concede that the Domestic Partnerships [Act] does not
exclude her from the protection, she could allege that a differentiation
nevertheless exists as section 5(1) of the Matrimonial Property Act applies by
operation of law to all spouses married out of community of property with the
accrual system unless they include a provision to the contrary in their antenuptial
contract. While married couples are therefore automatically entitled to the
protection unless specifically opting out of it, registered domestic partners such
as X and Y have to regulate this matter themselves and will only be entitled to
the protection that is explicitly contained in their registered partnership
agreement. Therefore, within the context of property regimes that are essentially
identical, the one Act allows protection by default while the other places an
onerous duty on the parties to act positively in order to secure the same. For an
Act to expect such action, so y's counsel could contend, is unreasonable and
incongruous and simply expects too much of the ordinary South African
citizen.339
Applying the test as formulated in Harksen v Lane N0340 to the position of Y
would firstly require that, in order to fall foul of the section 9(1) "equality clause",
there should be no rational connection between the differentiation and any
legitimate government purpose. The purpose behind the introduction of the
registered domestic partnership model in its current form can be gleaned from
the South African Law Reform Commission's 2006 Report where it is stated that
"[i]nstead of largely duplicating marriage, a simplified version of registered
338 Par [81] (emphasis added).
339 See Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd:
In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545 (CC) at par [24]: "the
Legislature is under a duty to pass legislation that is reasonably clear and precise, enabling
citizens and officials to understand what is expected of them."
340 1998 (1) SA 300 (CC).
577
partnerships would serve as a proper alternative to marriage, making it more
accessible to vulnerable partners and affordable to indigent people ... ,,341As far
as the property regime of a registered domestic partnership as such is
concerned, the Report states that the "complexities" of the 2003 model had been
revisited in the light of the less complicated registration procedure that was put
forward in the 2008 Bill. The Commission therefore opted for separation of
property as the default regime,342but concluded that "it should nevertheless be
open" to the registered partners to enter into a registered partnership
agreement.343 Therefore, although accessibility seems to have been the major
reason for the suggested default property regime, the autonomy of the partners
appears to have been the overriding motive for permitting a deviation therefrom.
In view of the wide array of settings within which life partnerships present
themselves, the diverging reasons for cohabitation and the vastly differing
financial arrangements which the partners may require to suit their unique
neeos.?" it appears that the autonomy argument may constitute a legitimate
government purpose. Consequently, it can be deduced that the government's
purpose behind the introduction of the model in its current form was to ensure the
autonomy of the partners. The question is, however, whether this legitimate
purpose is advanced by distinguishing between a spouse married out of
community of property with the accrual system and a registered domestic partner
in the position of Y.
Although the autonomy consideration is a powerful one, it is suggested that it
cannot be rationally connected to the lack of protection provided by the Bill in its
current form. In much the same way as the reason for protecting the joint estate
as a cohesive unit was found to have fallen away in Van der Merwe,345 it is
submitted that the justification for distinguishing between the legal protection to
which married couples and registered domestic partnerships are entitled must
341
SALRC2006: 320 (emphasis in original).
342
See clause 7(1) of the Bill.
343
SALRC2006: 332.
344
See in general Goldblatt 2003: 613 - 615; SALRC2006: 19 - 35.
345
See par [51).
578
also fall away with the enactment of the Domestic Partnerships [Act]. There can
surely be no legitimate government purpose behind denying protection to a
person who has entered into a relationship which, in the same way as marriage
does, involves both the undertaking of a formal public commitment before the
State as well as an alteration of legal status.346
In consequence it is submitted that the only way in which the autonomy argument
could be rationally connected to the provision in question would be if the [Act]
instead provided an "opt-out" provision (similar to that which applies to spouses)
by which protection similar to that conferred by section 5(1) of Act 88 of 1984
applies unless the parties have expressly agreed that it does not, or, in the
alternative, if the [Act] granted the Courts the competency to extend matrimonial
property law to registered domestic partnerships in circumstances similar to
those in which Y finds herself.
In the alternative, if a Court were somehow to conclude that section 9(1) is not
infringed, the second leg of the Harksen test would come into operation, in terms
of which it would have to be determined whether the law discriminates unfairly
against registered domestic partners.?" To this end, it must first be established
whether the differentiation takes place on a listed ground, and, more particularly,
whether the ground of "marital status" is at issue. Applying the rationale in Van
der Merwe shows that there is no clear-cut answer to this question. This is
because the position in which X and Y find themselves falls somewhere between
the distinction drawn by Moseneke DCJ between jurisprudence involving (i)
married versus unmarried couples (such as in Volks NO v Robinson)348 and (ii) a
distinction between the rights and obligations occasioned by the "different
346 Although listed within the context of a need-based claim (maintenance from a deceased estate)
and as part of the test for unfair discrimination, the fact that many of the distinctions between
marriage and unmarried cohabitants mentioned by Skweyiya J in Volks NO v Robinson 2005 (5)
BCLR446 (CC) at par [55) and [56) would fall away once the Bill is enacted could be mentioned in
further support of this contention.
347 See par (b) of the test formulated in Horksen v Lane NO 1998 (1) SA 300 (CC) at par [53).
348 2005 (5) BCLR446 (CC).
579
property regimes within marriage" (such as in Van der Merwe).349 X and y's
case therefore constitutes a "mixture" of these two categories: They are neither
married nor "unmarried" in the sense of a life partnership in the narrow sense (as
in Volks), yet their case indeed involves a distinction between the various
property regimes encountered within domestic partnerships and marriage.
Nevertheless, where y's situation differs from the situation in Van der Merwe is
that in her case the differentiation indeed involves a benefit "that attaches to
married people but is denied to unmarried people.,,35o Consequently, it can be
concluded that the differentiation takes place on "marital status" and is therefore
presumed to be unfair in accordance with section 9(5) of the Constitution.
According to the Harksen case it follows, then, to determine the impact of the
discrimination on a person in the position of y.351 In this regard, relying on the
majority judgment in Volks NO v RObinson,352 "one must consider the differences
between the two groupS.,,353Although the latter case had involved a need-based
claim and therefore differs from the matter in casu, it was decided chiefly on the
basis of the differences between marriage and unmarried life partnerships, most
of which would fall away with the enactment of the Domestic Partnerships [Act].
For example, registered domestic partners would not be free to withdraw from
their relationships at will, and a number of significant legal duties (such as a
reciprocal duty of support) would attach to such partnerships by operation of law.
Furthermore, as was suggested earlier in this study, a solid case could be
presented in favour of arguing that a consortium omnis vitae that is in all respects
identical to that created by marriage exists between registered domestic
partners.354 More particularly, as far as "the nature of the provision or power and
the purpose sought to be achieved by it" is concerned, it was seen above that the
autonomy argument simply cannot be regarded as "achieving a worthy and
important societal goal" by the legislative scheme not providing similar ex lege or
349
Par [46) (emphasis added).
350
Per Moseneke DCJat par [45).
351
See paragraph b(ii) of the test as formulated in Harksen at par [53).
352
2005 (5) BCLR446 (CC).
353
Per Skweyiya J at par [51).
354
See 6 above.
580
alternative protection to registered domestic partners who wish to make the
accrual system applicable to their marriage as it does for spouses who wish to do
the same.355
Finally, as far as the justification analysis on the basis of the "choice argument" is
concerned, one need look no further than Moseneke DCJ's comments in Van der
Merwe. In this regard it has already been seen that such a "waiver defence"
argument will not hold water as the constitutional validity of an Act is independent
of any choice exercised by the parties who are affected thereby.356 As a result,
the fact that X and Y chose to enter into a registered partnership agreement in
order to deviate from the default property regime will not change the fact that the
Domestic Partnerships [Act] fails a person in the position of Y and is therefore
unconstitutional.
In conclusion, it is submitted that the hypothetical scenario sketched above may
have important implications for the application of the preliminary conclusions
concerning the "contextualised choice model" to registered domestic
partnerships.P" As a point of departure it can be assumed that the fact that the
partners have entered into such a partnership reflects a positive choice to enter
into the same. By implication, this encompasses a positive choice on their behalf
not to marry, which, strictu sensu, would on the conclusions thus far reached in
this study "be a highly persuasive factor in deciding to exclude the possibility of
applying matrimonial (property) law to solve the dispute." The scenario explored
above however points to the fact that the application of the model needs to be
revised, particularly within the context of registered domestic partnerships.
Indeed, the preceding analysis cautions that it may be unconstitutional to use this
argument in support of such a contention. It is therefore submitted that even if
legislation that specifically regulates domestic partnerships were to be enacted,
355 Quotes per Ackermann J in National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs 2000 (2) SA 1 (CC) at par [41].
356 Par [61].
357 See the quotes taken from Chapter 5 above.
581
the "contextualised choice model" could only be applied in order to exclude the
application of matrimonial property law to property disputes if that legislation
provided an effective and well-defined alternative to matrimonial property law.
The Domestic Partnerships Bill, 2008 clearly does not achieve this goal and must
therefore be amended in order to avoid the risk of unconstitutionality.
It is of the utmost importance to note that the aim is therefore not to replicate
matrimonial property law in registered domestic partnerships legislation. Doing
so would not only be pointless, but would run counter to the policy considerations
identified in the introductory paragraphs to this discussion. Instead, what is
suggested is that the means be provided by which the protection provided by
matrimonial property law should be available by way of a Court application where
this is necessary. Such protection is therefore not enforced onto registered
domestic partnerships, but is simply available if needed.
In the result, it is submitted that the most equitable outcome will be achieved by
an amendment that takes the golden midway between outright autonomy and
sufficient legal protection. The solution must therefore be framed in such a way
as to be able to accommodate the individual requirements of the partners and the
principles of the law of obligations, and yet be robust enough in order to protect a
vulnerable partner if necessary. In order to achieve this, it is submitted that the
Courts be given the competency, on application by either or both domestic
partners, and provided that there are sound reasons for doing so, to extend any
principle of matrimonial property law in order to give effect to the original intention
expressed by the parties in their registered partnership agreement. Applying this
amendment to the scenario between X and Y above, Y would be able to
approach the High Court for an order extending the application of section 5(1) of
the Matrimonial Property ACP58 to her situation provided that this accorded with
the original intention expressed in her agreement with X. As it is clear that X and
Y intended the accrual system to apply to their partnership, the extension sought
358
Act 88 of 1984.
582
would give proper effect to their intention as expressed in their original
agreement without falling foul of the principle of pacta sunt servanda or of the
rule that a Court cannot make a contract for the parties.
A final remark that must be made is that, while the example above dealt with a
situation involving the termination of a registered domestic partnership, it is of the
utmost importance to note that an extension of matrimonial property law may
also be required during the existence of the partnership. The need for such a
power will probably be particularly necessary in the case of domestic
partnerships that are entered into with community of property, where there
literally are "two captains" of the same ship.359 For example, assume that C and
D entered into a registered domestic partnership with community of property but
that their registered partnership agreement neglected-through a bona fide
oversight or fault of their attorney-to regulate the liability for delicts committed
by one of them. In such an instance it is submitted that the same rationale as
that explained in the case of X and Y above may be used to justify an application
to Court for an extension of the principles contained in section 19 of the
Matrimonial Property Act (which as in the case of section 5 of that Act applies by
default to married couplesj"? so as to compel the "guilty" partner to include a
provision in the registered domestic partnership entitling the "innocent" partner to
a claim for adjustment at the termination of the parmershipP'"
359 Sonnekus (updated by Clark) 2008: B21.
360 Section 19 ("[Iliability for deliets committed by spouses") reads as follows: "When a spouse is
liable for the payment of damages, including damages for non-patrimonial loss, by reason of a
delict committed by him or when a contribution is recoverable from a spouse under the
Apportionment of Damages Act, 1956 (Act 34 of 1956), such damages or contribution and any
costs awarded against him are recoverable from the separate property, if any, of that spouse,
and only in so far as he has no separate property, from the joint estate: Provided that in so far as
such damages, contribution or costs have been recovered from the joint estate, an adjustment
shall, upon the division of the joint estate, be effected in favour of the other spouse or his estate,
as the case may be" (italics added).
361 With reference to this specific example, an interesting question arises as to the applicability of
clause 21(1) of the 2008 Bill which is included under Part III of the Bill that deals with the
termination of a registered domestic partnership and states that "[flor the purposes of claiming
damages in a delictual claim, partners in a registered domestic partnership are deemed to be
spouses in a legally valid marriage." The question that arises is whether the "innocent" partner
may, relying on this clause, allege that section 19 of the Matrimonial Property Act deems her to
583
The proposed amendment is included below.
7.3.4.3 Conclusion
It is imperative that the registered domestic partnership should not only provide
an alternative to marriage, but that such an alternative must be a realistic option
for prospective partners. The preceding discussion shows that although the
2008 Bill provides greater accessibility to the general public, it in fact provides
less protection to them than its 2003 predecessor, thereby creating serious
doubts as to its efficacy. Therefore while the 2008 Bill succeeds on the
autonomy and plurality counts, it may be criticised for the risk to which it exposes
domestic partners (not to mention outsiders) who elect to deviate from the default
regime.
It is submitted that, in order to prevent the abuse of this state of affairs, the High
Court should be endowed with a broad power-on application-to alter or
intervene with the property regime entered into by the parties. Such a power
must make specific provision362 for instances where mutual co-operation
be in the same position as a spouse married in community of property at any rate, thereby
entitling her to an adjustment without the need for seeking a specific extension of matrimonial
property law. Two major problems present themselves in this regard. First, the innocent spouse
would not be "claiming damages" against the other spouse, but would simply be requesting an
adjustment or amendment to the registered partnership agreement. (If anything, damages are
being claimed from her half of the joint estate and not by her.) Second, in the absence of an
express legislative power granting the Courts the power to make such an order, it is doubtful
whether the Courts could, on the basis of clause 21(1) in its current form, interfere with the
contract that exists between C and D. Nevertheless, even if the two problems just identified
could somehow be overcome, it is still submitted that the amendment proposed in the main text
would be more successful, for the simple reason that not all extensions sought by the registered
domestic partners will necessarily involve delictual claims, and that the need for the extension
sought will not necessarily only arise at the termination of the partnership.
362 It is interesting to note that neither the 2003 Discussion Paper nor the 2006 Report makes
provision for this possibility. In the case of a registered domestic partnership agreement that is
binding on outsiders, the interests of such persons demand that a formal procedure involving an
application to Court will be required. These formal requirements would obviously not apply if
the agreement was only binding inter partes. The question can rightly be asked why an
application to Court is required for a change to the parties' property regime while, as seen
below, it is possible under certain circumstances for the parties to terminate their partnership by
mutual agreement without having to approach a Court to do so. It is submitted that the answer
584
between the partners is lacking or where the formalities prescribed by clause 7
have not been complied with,363and must also be flexible enough to enable it to
be exercised regardless of the peculiarities of any property regime selected or
designed by the parties. In addition, the Court should be empowered to suspend
the powers of a registered domestic partner, to order the immediate division of
joint property or property subject to a deferred community of property (such as
the accrual system) and to replace the partners' property regime with one that
the Court deems fit. This proposal is contained in subsections (2) to (6) of the
insertion suggested below.
It is also submitted that in order to provide a counterbalance for the lack of
regulation in terms of the proprietary consequences of registered domestic
partnerships-particularly those that elect to deviate from the default property
regime-the Courts should, in appropriate circumstances, be given the discretion
to extend any principle of matrimonial property law to a registered domestic
partnership. This power is reflected in subsections (7) and (8) of the proposal
that follows.
In the final instance (as pointed out in 7.2.2.2.2 (b) above) it is also vital for a
Court to be mindful of the impact which the exercising of these broad powers
may have on interested parties. In order to ensure that this takes place
subsections (9) and (10) below enjoin the Courts to consider the interests of
other interested parties and to make any order it deems fit in order to protect the
same.
to this question can be found in the fact that in the former instance a replacement notarial deed
is required (necessitating an order of a competent Court) while in the latter instance the existing
notarial deed is simply being endorsed with a termination certificate. In order to secure the
protection of interested parties (such as creditors of the partners) in the case of such a
termination it is submitted that the parties should be required to give adequate notice to the
registrar of deeds as well as to all interested parties and that the notary public responsible for
the termination procedure should ensure that the termination agreement includes a provision
that preserves the rights of all interested parties.
363 Specific legislative provisions to this effect are unnecessary as this can be achieved by virtue of
the provisions that allow for amendments to the property regime.
S8S
(For the sake of avoiding later confusion, this insertion is listed as Clause BA.)
8A General powers of the Court
(1) Notwithstanding the provisions of section 7 the court may, subject to
such conditions as it may deem desirable, authorize postnuptial
execution of a notarial contract having the effect of a domestic
partnership agreement, if the terms thereof were agreed upon between
the intended partners before the registration of the registered
partnership, and may order the registration, within a specified period,
of any contract so executed.
(2) Notwithstanding that the registered domestic partnership agreement
purports to exclude the jurisdiction of the Court to make any order, a
Court may, on application by both registered domestic partners, if it is
satisfied that-
(a) there are sound reasons for doing so;
(b) sufficient notice has been given to all interested parties; and
(c) no other person will be prejudiced thereby;
order that the property regime as stipulated in the registered
partnership agreement shall no longer apply to that registered domestic
partnership, and authorise the partners to enter into a registered
partnership agreement to regulate the financial matters of their
partnership on conditions which the Court deems fit;
(3) The provisions of section 7(3) and (5) shall mutatis mutandis apply in
respect of an agreement entered into under subsection (2), and the
provisions of section 89(2) and (3) as well as section 97 of the Deeds
Registries Act of 1937 shall apply in respect of such an agreement.
(4) Notwithstanding that the registered domestic partnership agreement
purports to exclude the jurisdiction of the Court to make any order, a
Court may, on application by a registered domestic partner, if it is
satisfied that-
586
(a) the interests of that partner are being or will probably be
seriously prejudiced by the conduct or proposed conduct of the
other registered domestic partner;
(b) that notice has been given to the registrar of deeds concerned
in circumstances in which a registered domestic partnership
agreement that complies with section 7(3) is in existence; and
(c) that no other person will be prejudiced thereby;
order the immediate division of any joint property or accrual of the
estate of a registered domestic partnership364 in accordance with the
terms of the property regime as stipulated in the registered partnership
agreement, or on such other basis as the Court deems just;
(5)
(a) A Court making an order under subsection (4) may order that
the property regime governing the registered domestic
partnership be replaced by another property regime, as the
Court may deem just.
(b) Subject to subsection (5)(cL the provisions of section 7(3) and
(5) of this Act shall mutatis mutandis apply to a registered
domestic partnership agreement entered into in consequence
of an order granted under subsection (5)(a).
(c) Where an order is granted under subsection 5(a) in
circumstances where a registered domestic partnership
agreement that complies with section 7(3) of this Act is in
existence, the registrar shall send a copy thereof to the registrar
of deeds concerned who shall cause an appropriate reference to
the new property system to be made on the registry duplicate
of the registered domestic partnership agreement concerned
and on every copy thereof tendered to him for endorsement.365
364 It is suggested that a definition of "accrual of the estate of a registered partnership" should be
inserted into clause 1 of the Bill that reads: "means the amount by which the net value of that
estate at the termination of the registered partnership (or order for division under section 8A)
exceeds the net value of the estate at the commencement of that registered partnership."
365 Section 8(3) of the Matrimonial Property Act 88 of 1984.
587
(d) A registrar of deeds who receives notice of a new matrimonial
property system in terms of subsection (Sj(c), shall notify all
other registrars of deeds accordingly and furnish each of them
with a copy of the court order, and every registrar of deeds so
notified shall cause an appropriate reference to the new
property system to be endorsed on the copy, if any, of the
registered domestic partnership agreement concerned filed in
his registry and on every copy thereof tendered to him for
endorsement.366
(6) Notwithstanding that the registered domestic partnership agreement
purports to exclude the jurisdiction of the Court to make any order, a
Court may, on application by a registered domestic partner, suspend for
a definite or indefinite period the powers granted to either of the
partners under a registered partnership agreement or under any law if it
is of the opinion that doing so is necessary to protect the interests of
either or both registered domestic partners;
(7) Notwithstanding that the registered domestic partnership agreement
purports to exclude the jurisdiction of the Court to make any order, a
Court may, on application by both registered domestic partners at any
time during the existence of a registered domestic partnership, and
provided that
(a) there are sound reasons for doing so;
(b) sufficient notice has been given to all interested parties; and
(c) no other person will be prejudiced thereby;
grant the extension of any principle of matrimonial property law which
the Court deems necessary in order to give proper effect to the
property regime which the applicants intended to apply to the
registered domestic partnership at the time it was registered or since it
was amended in accordance with this section.
(8) In determining whether there are sound reasons for the extension
sought under subsection 7 the Court must have regard to all the
366
Section 8(4) of the Matrimonial Property Act 88 of 1984.
588
circumstances of the registered domestic partnership including, but not
limited to:
(a) The terms of a registered domestic partnership agreement, if
any;
(b) The extent to which the partners deliberately intended not to
apply the principles of matrimonial property law to their
domestic partnership;367
(c) The interests of the applicant registered domestic partners;
(d) The interests of any child of the domestic partnership.
(9) A Court considering an application under this section must have regard
to the interests of a bona fide purchaser of, or other person with an
interest or vested right in, the property concerned.
(10) A Court considering an application under this section may make any
order proper for the protection of the rights of interested parties.
The insertion of clause BA in this form will necessitate the insertion of a new
definition into clause 1 of the Bill, to wit: "'Deeds Registries Act' means the Deeds
Registries Act 47 of 1937."
7.4 Conclusion
Throughout the preceding discussion a number of modifications were suggested
to the Bill in view of the policy considerations identified above. While many of
these suggestions may create the impression of rigidity and excessive formality
as far as the registered domestic partnership agreement is concerned, it is
important to note that prospective partners are free to choose not to comply with
the same, with the result that the normal principles of the law of contract regulate
their agreement and its variation, and that outsiders are not bound thereto. The
aim of the amendments suggested above is therefore to ensure that better
367
It is submitted that it will be acceptable-in view of the "contextualised choice model" to take
this choice into account as merely one of the factors.
589
protection is not necessarily enforced on the parties or on outsiders, but rather
that it is available if required.
8. THE LEGAL CONSEQUENCES OF REGISTERED DOMESTIC
PARTNERSHIPS
Only three comments need be made in this regard. The first is that, as seen in 6
above, it is clear that the act of registering a domestic partnership creates a
consortium omnis vitae that is identical to that created by marriage (or civil
partnership) between such partners. In order to obviate any uncertainty in this
regard, it is submitted that this consequence should be expressly listed as a legal
consequence of a registered domestic partnership.
A second observation is that the Bill is silent as far as the liability of registered
domestic partners for household necessaries is concerned. While the 2003
Discussion Paper made specific provision for the regulation of this matter,368the
2008 Bill contains only a definition of "household goods" in section 1, with no
reference whatsoever being made to necessaries of the joint household or as to
the liability of the parties in respect of the same.
In this respect it is useful, once again, to compare the registered domestic
partnership with marriage. Here it becomes evident that both of these institutions
impose ex lege support obligations and, as seen above, create a consortium
omnis vitae between the parties thereto. This implies that the requirements for
such a duty to exist in the case of a marriage, namely a valid marriage and a joint
368
See clause 8(2) - (4) in Annexure D:
"(2) The registered partners are jointly liable for debts incurred for household expenses.
(3) Each registered partner may enforce the joint responsibility established in this section
against the other registered partner through legal proceedings in a court of law.
(4) A party to whom debts are owed by either or both registered partners relating to
household expenses incurred may enforce the joint liability against either or both
partners through legal proceedings in a court of law."
590
household,369can easily be transplanted into the registered domestic partnership
setting. On this premise the fact that the law of marriage holds that liability
regarding household necessaries is not dependent on the property regime
selected by the spouses'"? implies that the same principle should apply in the
case of a registered domestic partnership. In consequence, the conclusion can
be reached that the Bill should reflect the fact that registered domestic partners
should, as in the case of their married counterparts, be jointly and severally liable
to third parties for debts incurred in respect of household necessaries.
Although it is true that the obligation in respect of household necessaries in the
case of marriage at times coincides with the reciprocal duty of support, such
overlapping is not always preclss.?" Many authors nevertheless elect to include
the discussion of this obligation under the concept "reciprocal duty of support"
due to the close relationship between these two concepts.372 In deciding where
to include this obligation in the Domestic Partnerships Bill it is therefore
submitted that it can be grouped under the provisions of the Bill that will (if
amended as suggested above) deal with the duty of support and consortium.
In the light of the preceding comments it is submitted that clause 9 should be
expanded to read as follows:
9. Duty of support and consortium omnis vitae
(1) Registered domestic partners owe each other a duty of support in
accordance with their respective means and financial needs.
(2) A registered domestic partnership creates a consortium omnis vitae
between the domestic partners that is, subject to this Act, in all respects
comparable to that created by marriage.
369 Du Preez v Cohen Bros 1904 TS 157 at 160; Excell v Douglas 1924 CPD472 at 476, 477.
370 See sections 17(5) and 23(5) of the Matrimonial Property Act 88 of 1984.
371 Cronjé and Heaton 2004: 54; Sinclair 1996: 456.
372 Hahlo 1985: 137; Cronjé and Heaton 2004: 54; Sinclair 1996: 445 et seq.
591
(3) Regardless of the property regime that applies to a registered domestic
partnership, both registered domestic partners are jointly and severally
liable to third parties for all debts incurred by either of them in respect of
necessaries for their joint household.
Finally, the need for an amendment to clause 10 ("[I]imitation on disposal of joint
property") of the Bill has already been explained in 7.2.2.2.2 above.
9. THE TERMINATION OF THE REGISTERED DOMESTIC PARTNERSHIP
AND MATTERS RELATED THERETO
9.1 Introduction
While the act of entering into a registered domestic partnership occasions an
alteration of status and a number of important patrimonial consequences, the
dissolution of such a partnership in principle terminates many of the same. The
domestic partnership rubric should consequently require a considerable amount
of energy to be devoted to this topic. In the paragraphs that follow the efficacy of
the 2008 Bill will be assessed in compliance with this mandate.
9.2 Circumstances leadingto termination
According to clause 12(1) of the 2008 Bill, a registered domestic partnership can
be terminated in three ways, namely by the death of either or both partners, by
mutual agreement or by Court order.
9.2.1 Termination by mutual agreement
In its 2003 Discussion Paper the South African Law Reform Commission
provided for registered domestic partners to terminate their partnership by
592
entering into a termination agreement before a notary public that complied with a
number of formal requirements.V" If the partners elected to terminate their
partnership by mutual agreement, they had no option but to enter into such an
agreement.374 The agreement was required to be filed with the registration
officer in the area in which the partners were ordinarily resident.375
In an attempt to align the termination procedure with the less complicated
registration procedure proposed in its 2006 Report, the Commission decided to
reduce the requirements for termination to two major ones, namely (i) that "the
termination of the partnership by agreement must be done voluntarily and in
writing before a registration officer," and that such an officer "must issue a
termination certificate and ensure publication of the termination."376 This informal
option would however only be available where no minor children were involved,
as the Commission felt that it would be in the best interests of such children to
require the partnership that existed between their parents to be terminated by an
order of Court.377 These proposals were for the most part included in clauses 12
through 14 of the 2008 BilI.378A number of important aspects of the termination
373
According to clause 30(2) "The mutual agreement must-
(a) state that it is entered into voluntarily by both registered partners;
(b) declare that the registered partners have come to a mutual agreement to terminate the
partnership;
(c) set out the following information:
(i) any conditions of the termination;
(ii) the division of accrued or joint property;
(iii) arrangements regarding the family home;
(iv) settlement of pension and other similar claims; and
(d)
374 Clause 30(1).
375 Clause 30(2)(d).
376 SALRC2006: 344.
377 SALRC2006: 344.
378 These clauses state the following:
"12. Termination of registered domestic partnership
(1) A registered domestic partnership terminates upon-
(a) the death of one or both registered domestic partners;
(b) agreement as contemplated in section 14;or
(c) a court order as contemplated in section 15.
(2) A death certificate, or a termination certificate issued in terms of this Act, or a
termination order made by the court in terms of this Act, is prima facie proof
that such a registered domestic partnership has ended.
593
procedure as it appears in the 2008 Bill will be discussed in the paragraphs that
follow.
13. Registration of a termination agreement
(1) A registration officer must conduct the termination procedure on the official
premises used for that purpose and in the manner provided for in this section.
(2) Registered domestic partners who intend to terminate their domestic
partnership must present the registration officer with a certified copy of the
registration certificate as proof that a registered domestic partnership exists
between them.
(3) Registered domestic partners must individually and in writing declare their
desire to terminate the registered domestic partnership by signing the
prescribed documents in the presence of a registration officer.
(4) The registration officer must sign the prescribed documents to certify that the
declaration referred to in subsection (3) was made voluntarily and in his or her
presence.
(5) The registration officer must issue the registered domestic partners with a
certificate stating that their domestic partnership has been terminated and
make a notification of the existence of a termination agreement, where
applicable, on the certificate.
(6) Each registration officer must keep a register of all registered domestic
partnerships terminated by him or her and indicate the existence of a
termination agreement, where applicable, in the register.
(7) The registration officer must transmit the register contemplated in subsection
(6) and the documents concerned to the officer in the public service with the
delegated responsibility for the population register in his or her district of
responsibility.
(8) Upon receipt of the register contemplated in subsection (6) the officer with the
delegated responsibility for the population register as contemplated in
subsection (7) must cause the particulars of the terminated domestic
partnership to be included in the population register in accordance with the
provisions of section 8(e) of the Identification Act.
14. Termination agreement
(1) Registered domestic partners who want to terminate their registered domestic
partnership may conclude a termination agreement to regulate the financial
consequences of the termination of their registered domestic partnership.
(2) A termination agreement must be in writing, signed by both registered
domestic partners and must declare that it is entered into voluntarily by both
partners.
(3) A termination agreement may provide for-
(a) the division of joint and separate property;
(b) the payment of maintenance to the other registered domestic
partner;
(c) arrangements regarding the family home; and
(d) any other matter relevant to the financial consequences of the
termination of the registered domestic partnership."
594
9.2.1.1 Discretion to enter into a "termination agreement"
As was pointed out above, the version of the Bill that appeared in the Discussion
Paper of 2003 insisted upon the entering into of a written mutual agreement
whenever the parties opted to terminate the agreement without going to Court.
On the other hand, the 2008 Bill allows the parties to enter into such an
agreement if they wish to do SO.379 In the discussion that follows a number of
reasons will be set out as to why this approach cannot be supported as there are
good reasons for insisting upon the conclusion of a termination agreement under
certain circumstances where a registered partnership is terminated out of Court.
What this state of affairs also highlights is that, in its current form, the heading to
clause 13 "[r]egistration of a termination agreement" is incorrect as not only is the
existence of such an agreement not an absolute requirement, but the clause in
question also makes no mention of such an agreement being "registered", but
only refers to the need for the "existence" and the "particulars" thereof to be
included in the applicable registers.38o It is submitted that the heading should
therefore be amended to read "Termination procedure" instead.
9.2.1.2 The formalities pertaining to the termination of a registered
domestic partnership
This aspect of the procedure requires urgent attention, particularly in view of the
amendments proposed earlier in this Chapter in respect of the registered
partnership agreement. In order to explain this contention, it is necessary to bear
in mind that it was suggested in 7 above that notarial attestation as well as
registration in the deeds registry of all registered partnership agreements would
be non-negotiable requisites in order for such agreements to be binding on
outsiders. Many reasons were proffered in support of these requirements,
including the need for better protection of the parties themselves and for all other
379 See the use of the words "where applicable" in clause 13(5) and (6) and the word "may" in clause
14(1).
380 See note 378 above.
595
interested parties. In addition, it was also pointed out that it would be ludicrous-
as would indeed be the case if the Bill were not amended as suggested-for the
law to permit registered domestic partners essentially to achieve the same
results by virtue of their agreement as the parties to a marriage could in an
antenuptial contract without subjecting both of these agreements to similar formal
requirements in order to do so.
It is submitted that many of the same arguments referred to above explain why it
is crucial for the principles pertaining to the termination of a registered domestic
partnership to be revisited. The first factor to consider is that partners who opt
for the mutual agreement termination procedure will not have the benefit of being
protected by the High Court as spouses to a divorce would be. This would inter
alia entail that no judicial scrutiny of a termination agreement would take place
leading to the obvious risk that one of the parties (usually the "weaker" or more
vulnerable one) could contract to his or her detriment. While a measure of
autonomy (and risk) may be condoned where no duly registered domestic
partnership agreement is in existence, it is submitted that the same cannot hold
true in the event of a formal registered contract. (In the former context an
aggrieved party would still be able to rely on the normal principles of the law of
contract to have the contract or any part thereof invalidated on the grounds of
public policy, et cetera.)381
Furthermore, it appears as if the doubt that persisted regarding the publicity
requirement for the registered partnership agreement has been carried over into
the prospective termination procedure, as neither clauses 13 nor 14 of the Bill
make any mention of a central register for such agreements. Indeed, as was
pointed out in the preceding paragraph, all that the Bill requires is for the
registration officer to indicate the "existence" of such an agreement in his or her
381 See for example Baart v Malan 1990 (2) SA 862 (E) where a provision in a settlement agreement
(which, incidentally, was incorporated into the divorce decree) in terms of which the applicant
was "deprive[d] of any benefit to her arising from her professional employment" (at 869 (E) - (F))
was-on application two years later-deleted on the grounds that it violated public policy.
596
register382 and for the "particulars" of the terminated partnership to be included in
the population register.383 The Bill also makes no reference whatsoever as to
what the effect of termination will be on any registered partnership agreement
that may have been entered into at the commencement of the partnership. A
further motivation in support of procedural reform is that it is crucial for the
termination procedure to be aligned with the requirements proposed for the
registered domestic partnership agreement above, as the latter amendments
would be of little value if the termination procedure was not synchronised with
them. This would require, inter alia, that where a registered domestic partnership
agreement binds outsiders due to it being registered in the deeds registry, that
partners must give timeous notice to all interested parties as well as to the
registrar of deeds of the imminent termination of their agreement.384 Finally, over
and above the requirement of adequate notice, it is also crucial for the
termination procedure to protect the interests of creditors and other interested
parties. To this end, it is strongly recommended that the termination agreement
must be required to contain a provision that preserves the rights of the parties'
creditors. As a result it is suggested that:
In the absence of judicial scrutiny, the requirement of notarial attestation
and adequate notice is essential in order to protect the interests of the
parties involved as well as interested parties;
As was suggested in the case of the commencement of a registered
domestic partnership, the requirement of witnesses for the termination
procedure should also be reintroduced;
The registration officer must specifically be required to file all termination
agreements; and
o Where the partners entered into a registered partnership agreement which
was registered in a deeds registry, the registration officer must be required
to transmit a copy of the termination certificate to the deeds registry in
382 Clause 13(5) and (6) as set out in note 378 above.
383 Clause 13(8) as set out in note 378 above.
384 This would presumably require notice in the Government Gazette and in local newspapers.
597
order for it to be endorsed on that registered domestic partnership
agreement.
(As a matter purely of convenience, it would be recommended that clauses 13
and 14 of the Bill be switched around, as the procedure for termination should
logically follow the stipulations pertaining to the compulsory agreement. In order
to avoid confusion the original order is however retained.)
The embodiment of the amendments suggested above can be illustrated as
follows (all amendments in italics):
12. Termination of registered domestic partnership
(1) A registered domestic partnership terminates upon-
(a) the death of one or both registered domestic partners;
(b) agreement as contemplated in sections 13 and 14;385 or
(c) a court order as contemplated in section 15.
(2) A death certificate, or a termination certificate issued in terms of this
Act, or a termination order made by the court in terms of this Act, is
prima facie proof that such a registered domestic partnership has
ended.
13. Regi5tratieR ef a terFRiRatieR agreeFReRtTermination procedure
(1) A registration officer may not commence with the termination
procedure unless he is satisfied that the requirements of section 14(2)
have been complied with.
(2) A registration officer must conduct the termination procedure on the
official premises used for that purpose and in the manner provided for
in this section.
(3) Registered domestic partners who intend to terminate their domestic
partnership must present the registration officer with a certified copy of
385
Although not discussed above, it is clear that this clause must be amended to refer to both of
these sections.
598
the registration certificate as proof that a registered domestic
partnership exists between them.
(4) Registered domestic partners must individually and in writing declare
their desire to terminate the registered domestic partnership by signing
the prescribed documents in the presence of a registration officer and
two competent witnesses.
(5) The registration officer and the two competent witnesses must sign the
prescribed documents to certify that the declaration referred to in
subsection (4) was made voluntarily and in his or her presence.
(6) The registration officer must issue the registered domestic partners
with a certificate stating that their domestic partnership has been
terminated and make a notification of the existence of the termination
agreement on the certificate.
(7) Each registration officer must keep a register of all registered domestic
partnerships terminated by him or her and indicate the existence of the
termination agreement in the register.
(8) Each registration officer must file all termination agreements that
regulate the termination of any registered domestic partnership that is
terminated by him or her.
(9) The registration officer must transmit the register contemplated in
subsection (7) and the documents concerned to the officer in the public
service with the delegated responsibility for the population register in
his or her district of responsibility.
(10) Upon receipt of the register contemplated in subsection (7) the officer
with the delegated responsibility for the population register as
contemplated in subsection (9) must cause the particulars of the
terminated domestic partnership to be included in the population
register in accordance with the provisions of section 8(e) of the
Identification Act.386
(11) Where, at any time during the existence of their domestic partnership,
the registered domestic partners entered into a registered partnership
386 Section 38(e) of this Act should be amended in the manner suggested in 12.2.3 below.
599
agreement that was registered in the deeds registry as prescribed in
section 7, the registration officer must transmit a certified copy of the
termination certificate to the registrar of deeds concerned in order for it
to be endorsed on the registry duplicate of the domestic partnership
agreement and on every copy thereof tendered to him or her for
endorsement.
(12) Upon receipt of the termination certificate contemplated in subsection
(10) the registrar of deeds must cause that certificate to be endorsed on
the registered partnership agreement.
(13) A registrar of deeds who receives a termination certificate contemplated
in subsection (11), shall notify all other registrars of deeds accordingly
and furnish each of them with a copy of the certificate, and every
registrar of deeds so notified shall cause an appropriate reference to the
termination certificate to be endorsed on the copy, if any, of the
domestic partnership agreement concerned filed in his or her registry
and on every copy thereof tendered to him or her for endorsement. 387
14. Terminationagreement
(1) Registered domestic partners who wish to terminate their
registered domestic partnership in accordance with section
12(l){b) may conclude a termination agreement to regulate the
financial consequences of the termination of their registered
domestic partnership: Provided that where the registered
domestic partners entered into a registered domestic partnership
agreement that was registered in a deeds registry at any time
during the existence of their partnership, the conclusion of an
agreement that complies with the requirements set out in
subsections (2) and (3) is an absolute requirement.
387
Section 8(4) of the Matrimonial Property Act 88 of 1984.
600
(2) A termination agreement contemplated in the proviso to
subsection (1) must-
(a) be in writing;
(b) declare that it is entered into voluntarily by both partners;
(c) be signed by both registered domestic partners;
(d) be attested by a notary public;
(e) contain a provision preserving the rights of interested
parties;
(f) be handed in to the registration officer responsible for
conducting the termination procedure in accordance with
section 13 of this Act before or on the date of termination;
and
(g) be filed by the registration officer contemplated in
paragraph (e) above.
(3) The termination agreement contemplated in subsection (2) may
not be executed by the notary public concerned unless sufficient
notice has been given to the registrar of deeds concerned and to
all interested parties.
(4) A termination agreement may provide for-
(a) the division of joint and separate property;
(b) the payment of maintenance to the other registered
domestic partner;
(c) arrangements regarding the family home; and
(d) any other matter relevant to the financial consequences of
the termination of the registered domestic partnership.
601
9.2.1.3 Responsibility to notify interested parties of termination
It is submitted that clause 24 of the Bill should in principle be retained, but that
the reference to "the surviving partner" in subsection (2) thereof should be
deleted:
(1) When a registered domestic partnership is terminated, both registered partners
are liable to give written notice of the termination to interested parties.
(2) When one or both registered domestic partners die, the surviving registereel
partner or the executor of the estate of either registered domestic partner as
the case may be, is liable to give written notice of the termination of the
registered domestic partnership to interested parties.
9.2.1.4 Conclusion
While the 2008 Bill's move towards a more informal termination procedure is
commendable, it is submitted, as was the case with the registered partnership
agreement, that certain formalities simply cannot be dispensed with, particularly
where outsiders are affected by the process. The amendments proposed above
are therefore vital for ensuring that the termination procedure for a registered
domestic partnership functions smoothly and provides better protection for all
involved. For those who may argue that the procedure is overly formalistic, it
must be remembered that the formal requirements are not compulsory: As was
also pointed out in the discussion of the registered partnership agreement,
nothing will prevent the partners from entering into a termination agreement that
does not comply with the formalities prescribed. The important consequence of
such an agreement would however be that only the parties thereto would be
bound thereby. As a result, it is submitted that the formal requirements proposed
above would not intrude unreasonably on the goal of simplification.
602
9.2.1.5 A further benefit: The Deeds Registries Act 47 of 1937
A final-and highly relevant-beneficial "spin-off' of the amendments to the
registration procedures proposed for both registered partnership and termination
agreements presents itself in the context of the Deeds Registries Act.388
It will be recalled that in 4.2.3 it was mentioned that the calibration phase of the
domestic partnership rubric requires the amendment of a significant number of
Acts that currently provide for life partners in the narrow sense in order to be
aligned with the "legislative substructure" that would be created by the enactment
of the (modified) Domestic Partnerships Bill. Furthermore, it was also mentioned
that this phase of the rubric is not restricted to aligning legislation that already
provides for unmarried life partners with the Domestic Partnerships Bill, but that it
may also involve the converse situation namely where it becomes clear that an
Act that does not (yet) provide for persons other than married spouses also
needs to provide for domestic partners. The Deeds Registries Act is one of
these Acts.
While the precise scope of the amendments required in order for this Act to
provide for domestic partnerships falls outside the scope of this study, it will
suffice to state that this Act will in future have to provide for such partnerships.
For example, it is to be expected that many registered domestic partners may
wish to purchase or dispose of immovable property. Section 17(1) of the Act
currently provides as follows:
From the commencement of the Deeds Registries Amendment Act, 1987, immovable
property, real rights in immovable property and notarial bonds which would upon
transfer, cession or registration thereof form part of a joint estate shall be registered in
the name of the husband and the wife, unless that transfer, cession or registration takes
388 47 of 1937.
603
place only in the name of a partnership, and the husband or wife is involved therein only
in the capacity of partner in that partnership.3a9
It is self-evident that this provision will have to be amended in order to provide for
domestic partnerships. There are also other provisions that require similar
amendment. 390
A further important point to take note of is that it is possible for registered
domestic partners to deviate from the default property regime by entering into a
domestic partnership agreement.391 Due to the principle that the autonomy of
domestic partners must as far as possible be respected, it was seen above392
that it is possible for the parties literally to construct a unique tailor-made property
regime that will regulate their partnership. The nub of this issue is that, unlike in
the case of marriage where there are certain crystallised, well-known and well-
regulated property regimes, registered domestic partners can create their own
property regimes that are simply not capable of such precise classification.
Therefore, if an Act requires a spouse to disclose the matrimonial property
regime that applies to his or marriage, it is a matter of relative ease to do so due
to the precise parameters involved. This neat categorisation also allows an
outsider to the relationship to attach immediate significance to the information so
provided. On the other hand, disclosing the precise nature and ascertaining the
immediate implications of the property regime that governs a registered domestic
partnership will not always be as simple. Section 17(2) of the Deeds Registries
Act provides the following example:
Every deed executed or attested by a registrar, or attested by a notary public and
required to be registered in a deeds registry, and made by or on behalf of or in favour of
any person, shall-
389
Emphasis added.
390
For example, see the remainder of section 17 and sections 14; 21; 25; 45; 45bis; 67; 92 as well as
the definition of "owner" in section 102.
391
See clause 7 of the Bill.
392 See 7.2 above.
604
(a) state the full name and marital status of the person concerned;
(b) where the marriage concerned is governed by the law in force in the Republic or
any part thereof, state whether the marriage was contracted in or out of
community of property or whether the matrimonial property system is governed
by customary law in terms of the Recognition of Customary Marriages Act,
1998;
(c) where the person concerned is married in community of property, state the full
name of his spouse; and
(d) where the marriage concerned is governed by the law of any other country,
state that the marriage is governed by the law of that country.393
Considering the point made above, the emphasised portions of this extract
illustrate why it may be difficult for the specific information required by this
section to be supplied and or ascertained. For this reason it is submitted that the
requirement of registering a registered partnership agreement or termination
agreement in a deeds registry would be a salutary development as it would
contribute towards the accessibility of the information required in the extract
above and as a result would facilitate the functioning of the Deeds Registries Act
whenever registered domestic partnerships are at issue.
9.2.2 Termination by order of Court
9.2.2.1 Circumstances in which a Court order is required
According to clause 15(1) of the Bill registered domestic partners do not have the
option of mutual termination available to them where they "have minor children
from the registered domestic partnership." This requirement was originally
inserted in the 2003 Discussion Paper "in order to protect vulnerable parties,,394
and is in line with the pre-eminence given to the best interests of the child as
embodied in section 28 of the Constitution, 1996 and the Children's Act 38 of
393 Emphasis added.
394 SALRC 2003: 283.
60S
2005 and is therefore to be supported. It will however be seen below that a
Court application should not only be prescribed by the Bill in the event of children
being involved.
9.2.2.2 The welfare of minor children
This aspect is regulated by clause 16 of the Bill which states the following:
(1) A court may not order the termination of a registered domestic partnership
unless the court is satisfied that the provisions made or contemplated with
regard to the welfare of any minor child or dependent child of the registered
domestic partnership are in the best interests of such child.
(2) In order to determine that the circumstances set out in subsection (1) exist, the
court may order that an investigation be instituted and for that purposes the
provisions of section 4 of the Mediation in Certain Divorce Matters Act apply,
with such changes as may be required by the context.
(3) Before making the termination order, the court may consider the report and
recommendations referred to in section 4(1) of the Mediation in Certain Divorce
Matters Act.
(4) In order to determine that the circumstances set out in subsection (1) exist, the
court may order any person to appear before it and may order either or both
the registered domestic partners to pay the costs of an investigation and
appearance.
(5) A court granting an order to terminate a registered domestic partnership may,
in regard to-
(a) the maintenance and education of a dependent child of the registered
domestic partnership; or
(b) the custody or guardianship of, or access to, a minor child of the
registered domestic partnership, make any order which it deems fit in
the best interest of such minor child.
606
(6) Unless otherwise ordered by a court, the rights of and obligations towards
children of a registered domestic partner under any other law are not affected
by the termination of the registered domestic partnership.
(7) For the purposes of this section, the court may appoint a legal practitioner to
represent a child at the proceedings and may order either or both the registered
partners to pay the costs of the representation.
The clause is generally speaking correct in as far as it is aligned with the gist of
the procedures that apply in respect of children at the termination of a marriage
by either divorce (section 6 of the Divorce Act 70 of 1979) or annulment (section
39 of the Children's Act 38 of 2005).395 A number of problematic aspects
pertaining to this clause nevertheless need to be highlighted. These are:
(i) The use of the word "may" in subsection (3) leads to the conclusion that a
Court has the discretion as to whether or not the Family Advocate's report
and recommendations are to be considered. The granting of a discretion
as to whether or not to take cognisance of such a report is not in keeping
with the well-entrenched principle at divorce and annulment proceedings
in terms of which a Court is compelled to consider but not necessarily to
follow the report and recornrnendations.ê'" It is submitted that the Bill
should not deviate from this principle.
(ii) The references in subsection (5) to "custody" and "access" are incorrect
as they do not reflect the terminology (respectively "care" and "contact")
introduced by section 2 of the Children's Act in 2007.397
(iii) Although the Bill provides for an order for "custody", "guardianship" or
"maintenance" to be granted, it does not provide for the rescission,
395 Section 39 in effect re-enacts section 6 and 7 of the now-repealed Children's Status Act 82 of
1987-see Heaton 2007: 3-4l.
396 Section 6(1)(b) of the Divorce Act 70 of 1979; Visser and Potgieter 1998: 165; Bosman and Van
Zy11997: 4.2.
397
Section 2 of the Act reads as follows: "In addition to the meaning assigned to the terms 'custody'
and 'access' in any law, and the common law, the terms 'custody' and 'access' in any law must be
construed to also mean 'care' and 'contact' as defined in this Act."
607
suspension or variation of such an order.398 This aspect requires urgent
attention, and it is submitted that an equivalent of section 8(1 )399 of the
Divorce Act 70 of 1979 should be inserted in order to remedy this defect.
(iv) The reference to "minor" throughout this clause (as well as clause 15 for
that rnatterj"? is redundant as a child is any person under the age of 18
years''?' and the age of majority has recently been reduced from 21 years
to 18 years.402 The erstwhile position in terms of which a person who was
between the ages of 18 and 21 was still a minor no longer forms part of
our law.
The problems identified above make it clear that clause 16 of the Bill ought to be
amended. In determining the form which such amendment should take, it is
important to note that the best interests of the child are of paramount concern
with the result that neither the autonomy of the parties nor the fact that a
registered domestic partnership is intended to be an alternative to marriage
(thereby justifying a departure from principles applicable to matrimonial law) have
a role to play. When this is borne in mind it becomes clear that there is no
398
Strangely enough, this aspect was also overlooked in the 2003 Discussion Paper (see clause 32 of
Annexure D).
399
Subsections (1) and (2) (italics added) read as follows:
"(1) A maintenance order or an order in regard to the custody or guardianship of, or access
to, a child, made in terms of this Act, may at any time be rescinded or varied or, in the
case of a maintenance order or an order with regard to access to a child, be suspended
by a court if the court finds that there is sufficient reason therefor: Provided that if an
enquiry is instituted by the Family Advocate in terms of section 4 (1) (b) or (2) (b) of the
Mediation in Certain Divorce Matters Act, 1987, such an order with regard to the
custody or guardianship of, or access to, a child shall not be rescinded or varied or, in
the case of an order with regard to access to a child, not be suspended before the report
and recommendations referred to in the said section 4 (1) have been considered by the
court.
(2) A court other than the court which made an order referred to in subsection (1) may
rescind, vary or suspend such order if the parties are domiciled in the area of jurisdiction
of such first-mentioned court or the applicant is domiciled in the area of jurisdiction of
such first-mentioned court and the respondent consents to the jurisdiction of that
court."
400
Clause 15(1) should be amended to read: "Registered domestic partners who have fI'Iffief
children from the registered domestic partnership, and who intend to terminate the registered
domestic partnership must apply to the court for a termination order."
401
Section 1 definition of "child" in the Children's Act 38 of 2005.
402
Section 17 of the Children's Act 38 of 2005.
608
reason for the Bill to deviate from the tried and tested principles relating to
divorce and annulment as embodied in the Divorce Acr03 and (of late) the
Children's Act.404 In fact, consistency between all three pieces of legislation will
ensure that the law adopts a uniform approach in respect of all children involved
in the dissolution of their parents' relationships, regardless of their form or
structure.
Nevertheless, it is suggested that one important deviation from the provisions of
the Divorce Act of 1979 must be recommended. This deviation relates to the
problem identified above regarding the fact that clause 16 of the Bill currently
makes no provision for the variation of maintenance and related orders, requiring
an insertion of provisions that are the equivalent of section 8(1) and (2)405of the
Divorce Act.406 It is suggested that while the wording of section 8 must for the
most part be transplanted verbatim into the amended clause 16, the fact that the
latter provision is relevant only to maintenance orders pertaining to children must
be expressed clearly. This is because the position as to whether section 8(1) of
the Divorce Act permits the variation of a maintenance order regarding a
divorced spouse is somewhat unclear as there is authority for the view that
section 8(1) only applies to the variation of maintenance orders pertaining to
children: In Botha v Botha407 it was held that the appropriate forum for the
variation of a maintenance order that was duly granted by the High Court at the
time of divorce is the Maintenance Court, "from which an appeal or review would
lie to [the High Court].,,408 In order to obviate this uncertainty, it is suggested that
403 70 of 1979.
404 38 of 2005. Although section 39 of this Act was only enacted on 1 July 2007, the fact that it
embodies sections 6 and 7 of the Children's Status Act 82 of 1987 testifies to the durability of the
principles contained therein.
405 See note 399 above for the wording.
406 70 of 1979.
407 2005 (5) SA 228 (W).
408 Par [10]. In this case the amount of an inter-spousal maintenance order granted in terms of
section 7 of the Divorce Act 70 of 1979 had been reduced two years later by the Maintenance
Court. Barely a year later the applicant applied to the High Court for an order limiting the
duration of the order to a period of five years as from the first payment. The Court held, inter
alia, that section 8 of the Divorce Act did not empower it to grant the order sought as it was not
609
the amended version of clause 16 should specifically refer to a maintenance
order "in respect of a child."
There is another reason for insisting that clause 16 must expressly state that it is
limited to orders in respect of children. This is because, even if a future Court
were to decline to follow the judgment in Botha v Botha (and hence to hold that
section 8(1) of the Divorce Act also permits the variation of maintenance orders
between the erstwhile spouses) an informal maintenance agreement between
the spouses could still not be varied in terms of section 8(1) for, as Van
applicable to inter-spousal maintenance but only applied to the variation of orders pertaining to
children-see par [9] and [10]. This approach has been criticised-see Van Schalkwyk 2007: 426,
427 who opines that such a limited interpretation of section 8(1) is incorrect, and that the correct
approach would have been for the Court to find that it had no jurisdiction to hear the matter at
all on the basis that the Maintenance Court's variation in the interim implied that the original
order had been terminated (at 427). Van Schalkwyk's conclusion regarding the jurisdiction issue
is supported, but for a different reason, as it is submitted that the Court's interpretation of
section 8(1) may have been correct. This conclusion is based on the following reasoning: (i) It can
be accepted that Van Schalkwyk is correct in stating that at common law only the Court granting
the order has the power to vary the same, unless a statute specifically empowers another Court
to do so, and, moreover, that the Maintenance Court is empowered to vary a High Court
maintenance order, while the High Court is not permitted to do likewise. (ii) However, on the
basis of the decision in Cohen v Cohen 2003 (3) SA 337 (SCA), "[t]he principle is clear: the existing
Supreme or High Court order ceases to be of force and effect, but only insofar as the order of the
maintenance court expressly or by necessary implication replaces such order" (emphasis added).
This clearly implies that the mere variation of the amount of the High Court's original order does
not mean that the entire order ceases to be of force and effect. Therefore, in principle, it
appears as if the High Court would still have the jurisdiction to vary that portion of its order that
was still intact (cfVan Schalkwyk 2007: 428), provided that a statute did not curtail its common
law power to do so. (iii) It is submitted that a literal reading of the provision indicates that the
Court in Botha interpreted section 8(1) correctly. The first indication appears from the fact that
"a child" is the only subject referred to throughout the provision; a notion which is reinforced by
the comma after the words "access to" in the sentence "[a] maintenance order or an order in
regard to the custody or guardianship of, or access to, a child, made in terms of this Act."
Furthermore, if maintenance orders other than those relating to children were intended, it is
submitted that the words "in terms of this Act" would have been included after the words
"maintenance order" in the sentence in question (i.e. "[a] maintenance order under this Act or an
order in regard to ..."). (iv) In consequence of this interpretation, it is submitted that section 8(1)
does in fact curtail the common law power of the High Court to vary the order made at divorce.
This does not, however, mean that the High Court has no role whatsoever to play in inter-spousal
maintenance proceedings, but simply entails-as Willis J indicated in Botha-that the
Maintenance Court is the correct forum to approach for a variation of the order granted at
divorce, from which an appeal or review lies to the High Court (see section 25 of the
Maintenance Act 99 of 1998). It is therefore submitted that Van Schalkwyk is correct in
concluding that the High Court did not have jurisdiction to hear the matter, but it is submitted
that the Court in Bathe's interpretation of section 8(1) is in fact the causa for this lack of
jurisdiction.
610
Schalkwyk409 states, the wording "maintenance order" specifically refers to an
order of Court. However this does not mean
dat 'n onderhoudsooreenkoms wat nie in 'n hofbevelopgeneem is, sonder regsgevolg is
nie. Dit kan soos enige ander kontrak privaatregtelik afgedwing word ... Ook sal só 'n
ooreenkoms nie ingevolge die bepalings van artikel 8 van die Wet op Egskeiding gewysig
kan word nie, omdat daar nie 'n onderhoudsbevel ingevolge die wet bestaan nie.
Furthermore, in the case of inter-spousal maintenance within the context of
divorce proceedings, section 7 of the Divorce Act requires such an order to be
granted at the time of the proceedings by the Court that grants the order of
divorce, with the result that such an order cannot be sought thereatter."? This
state of affairs is particularly pertinent in the case of domestic partnerships, for,
as will be seen below, it will be suggested that the Bill should not require an inter-
partner maintenance order to be granted at the time of the termination order, but
instead should permit an application for such an order to be made within a
certain time period after the termination of the partnership.?" Therefore, if the
Domestic Partnerships Bill merely contained a cross-reference to section 8(1) of
the Divorce Act, the reference in the latter section to "an order ... made under
this Act may create the impression that a maintenance order between the
partners would, as in the case of divorce, also have to be granted at the time of
the termination order and could never be granted thereafter. However, expressly
limiting the application of clause 16 to children would mean that the fact that only
a maintenance order could be varied in terms of the amended clause could never
pose any difficulty as far as children are concerned. This is because the Bill's
insistence that the partners are compelled to approach a Court from the outset of
the termination proceedings precisely because there are children involved
409 1990: 69, 70.
410 Schutte v Schutte 1986 (1) SA 872 (A) at 882 (D) - (F); Sempapalele v Sempapalele 2001 (2) SA
306 (0) at 312 (D) - (E); Van Schalkwyk 1990: 69; Hahlo and Sinclair 1980: 43.
411 See clause 23 of the Bill as discussed in 9.3.4 below.
611
implies that there will always be a maintenance order which is capable of
subsequent amendment.
To conclude: In order to address the problems identified above as well as to
ensure the greatest possible consistency between the Divorce Act, the Children's
Act and the Domestic Partnerships Bill, it is suggested that clause 16 should be
remodelled as follows:
(1) Unless otherwise ordered by a Court, the rights of and obligations towards
children of a registered domestic partner under any other law are not affected
by the termination of the registered domestic partnership.412
(2) No registered domestic partnership may be terminated until the relevant court
has inquired into and considered the safeguarding of the rights and interests of a
child of that partnership.413
(3) Section 6 of the Divorce Act and section 4 of the Mediation in Certain Divorce
Matters Act apply, with the necessary changes required by the context, in
respect of such a child as if the proceedings in question were proceedings in a
divorce action and the termination of the registered domestic partnership were
the granting of a decree ofdivorce.414
(4) A maintenance order in respect of a child 415or an order in regard to the care or
guardianship of, or contact with, a child, made in terms of this Act, may at any
time be rescinded or varied or, in the case of a maintenance order or an order
with regard to contact with a child, be suspended by a court if the court finds
that there is sufficient reason therefor: Provided that if an enquiry is instituted
412
This provision was originally listed as subsection (6) of clause 16. It is recommended that it
should be retained in order to reinforce the notion that the termination of a registered domestic
partnership does not have retroactive effect and therefore has no effect on the rights and
obligations towards such a child. Provisions with similar effect are included in section 39 of the
Children's Act 38 of 2005 due to the fact that the annulment of a voidable marriage generally has
retrospective effect-see Heaton 2007: 3-4l.
413
Based on section 39(2) of the Children's Act 38 of 2005.
414
Based on section 39(3) of the Children's Act 38 of 2005.
415
As seen in the main text above, the emphasised words are intentionally added to the otherwise
almost verbatim insertion of section 8(1) of the Divorce Act 70 of 1979 (see note 399 above for
the original wording). The inserted provision also updates the original wording of section 8(1) as
far as the terms "care" and "contact" are concerned.
612
by the Family Advocate in terms of section 4(1)(b) or (2)(b) of the Mediation in
Certain Divorce Matters Act, such an order with regard to the care or
guardianship of, or contact with, a child shall not be rescinded or varied or, in
the case of an order with regard to contact with a child, not be suspended before
the report and recommendations referred to in the said section 4(1) have been
considered by the court.
(5) A court other than the court which made an order referred to in subsection (4)
may rescind, vary or suspend such order if the parties are domiciled in the area
of jurisdiction of such first-mentioned court or the applicant is domiciled in the
area of jurisdiction of such first-mentioned court and the respondent consents to
the jurisdiction of that court.
(6) A reference in any law-
(a) to a maintenance order or an order relating to the custody or
guardianship of, or access to, a child in terms of the Divorce Act must be
construed as a reference also to a maintenance order or an order
relating to the custody or guardianship of, or access to, a child in terms
of that Act as applied by subsection (3);
(b) to the rescission, suspension or variation of such an order in terms of the
Divorce Act must be construed as a reference also to the rescission,
suspension or variation of such an order in terms of that Act as applied
by subsection (4).416
The cross-references to the Divorce Act in the amended form of clause 16 would
also require a definition of "Divorce Acf' to be inserted into section 1 of the
Domestic Partnerships Bill to read "means the Divorce Act, 1979 (Act 70 of
1979)."
The need for clause 17 of the Bill ("[c]hildren of registered partners of opposite
sex") to be reconsidered will be explained in 12.2.4 below.
416 Section 39(5) of Act 38 of 2005 (italics added).
613
9.2.2.3 Termination of registered domestic partnership by Court order
where a partner refuses to cooperate
A final question that arises with reference to the termination of a registered
domestic partnership by order of Court is whether this option is available to
childless registered domestic partners.
As a point of departure, it is clear that the mutual termination option is available
to childless domestic partners, while a Court order is required the moment any
children are involved. In fact, reading clause 12 with clause 15 implies that the
mutual termination procedure is not merely available to childless partners but in
reality is actually prescribed for them. In this respect it is submitted that the 2008
Bill contains a vital shortcoming-it is silent as to the process that is to be
followed where one of the partners simply refuses to cooperate with the
termination process. This situation could obviously occur irrespective of whether
there are any children involved. The problem is that even the Court procedure
that is prescribed for partners who have children appears to be predicated on the
assumption that the parties both desire to terminate their partnership. As a
result, while a domestic partner who is involved in a partnership into which
children were born must approach the Court for an order terminating the
partnership, the Bill-by not prescribing any means for a Court to assess whether
the partners' circumstances are such that an order of termination should be
granted and empowering the Court to make such an order accordingly-does not
cater for the situation where one of the parties refuses to cooperate in the
termination process. To summarise, the current position created by the Bill
implies:
(i) That a registered domestic partner involved in a childless partnership has
no way of approaching the Court to terminate his or her partnership where
the cooperation of the other partner cannot be secured; and
614
(ii) That although a Court order is prescribed where children are involved, the
Bill neither empowers a Court to grant a termination order in the absence
of mutual agreement between the parties nor provides the grounds upon
which the Court can assess whether or not to do so.
This possibility was foreseen in the Bill proposed in the 2003 Discussion Paper,
and was specifically referred to in the 2006 Report in the following terms:
In order to protect vulnerable partners, a termination agreement had to comply with
prescribed formalities (clause 30 [in Annexure 0 to the 2003 Discussion Paper]).
Registered partners had to apply for a Court order to terminate the partnership where
they had children or where they could not come to an agreement to terminate the
partnership or as to the division of the joint property (clause 31 [of the same
document]). The Court would make a termination order if it was satisfied that the
registered partnership had reached a state of disintegration and there was no
reasonable prospect ofthe restoration of the relationship (clause 33 ).417
Despite specifically referring to this approach, the 2006 Report strangely enough
took the matter no further, with the ostensible result that this lacuna was also
carried over into the 2008 Bill.
Another cause for concern is that the 2008 Bill provides no scope for a Court to
consider (nor to incorporate into its final order) any agreement between the
registered domestic partners which is the equivalent of a consent paper or deed
of settlement between spouses involved in divorce proceedings. In fact, the only
reference to any type of agreement is found in clause 18 in terms of which the
Court is empowered to make a maintenance order "in the absence of a
maintenance agreement." The trouble is, however, that the Court is not given the
power to consider such an agreement to begin with. The granting of such a
power is essential because not all partnerships will involve a dispute between the
417 SALRC2006: 341 (paragraphs 6.6.4 and 6.6.5 combined).
615
partners as to property division, maintenance etcetera. This oversight in the
2008 Bill has important implications for partners with children as the Bill-while
forcing them to obtain a Court order due to the fact that children are involved-
does not currently envision the situation where no dispute is involved and the
partners simply wish to enter into a "settlement agreement" which can be
incorporated into the order of Court.
It is submitted that clauses 31 and 33 as proposed in Annexure 0 of the 2003
Discussion Paper contain important principles without which domestic
partnerships legislation will simply not be able to function effectively and which
can be used in order to cure the Bill of the ailments identified above. It is
therefore essential for clause 15 of the Bill to be expanded in order to provide for
a Court application where one of the partners refuses to co-operate in the
termination procedure, and to provide for a Court to consider a "settlement
agreement" entered into between the partners. Furthermore, although it is a
known fact that a Court is not bound by such an agreement between the parties
to divorce proceedinqs.f" this should expressly be confirmed in the domestic
partnership context in order to protect a vulnerable partner. To this end the Court
should be vested with a wide discretion to deviate from the agreement reached
between the partners so as to grant an order that is just and equitabte.t" Clause
15 should therefore be modified as follows:
418
See Van Schalkwyk 1990: 72, 72 and the authorities cited. Where children are involved, the
Court is duty-bound to determine whether the agreement between the divorcing spouses is in
the best interests of the children-see Rowe v Rowe 1997 (4) SA 160 (SCA) at 167 (C).
419
According to Bonthuys (2001: 208, 209) the South African Courts have tended to accept that
divorce settlement agreements are contracted voluntarily, with the result that the weaker
bargaining position in which women often find themselves in relation to their husbands is not
taken into account when property is divided. Women are also far more likely than men to forgo
economic wealth in order to secure an order for custody (now "care") of their children (at 209,
210). In order to address this state of affairs, she proposes inter alia that: "[C]ourts should
integrate the interests of children with the division of property on divorce, and construct
paradigms of property division which take their interests into account. Secondly, systems of
property division and spousal maintenance should be re-integrated with women's child-care
labour during and after marriage." It is submitted that the wide powers which are granted to a
Court under clause 22 of the Bill (to which, as will be seen in the main text it is suggested that the
amended clause 15 should cross-refer) will empower a Court to consider such factors.
616
15. Termination by Court order
(1) The registered partners or a registered partner must apply to the court for an
order to terminate the registered partnership if-
(a) the registered partners have minor children; and/or
(b) the registered partners cannot come to an agreement regarding the-
(i) termination of the registered partnership; or
(ii) division of property upon termination of the registered
partners hito.420
(2) An application to terminate a registered partnership is made to the court in
accordance with the provisions of the Supreme Court Act, 1959 (Act No. 59 of
1959).421
(3) A Court may grant an order to terminate a registered partnership in accordance
with subsection (1) if it is satisfied that the registered partnership has reached
such a state of disintegration that there is no reasonable prospect of the
restoration of the relationship between the partners. 422
(4) If it appears to the court that there is a reasonable possibility that the partners
may become reconciled through counselling, treatment or reflection, the court
may postpone the proceedings in order that the partners may attempt a
reconciliation.423
(5) A court granting an order to terminate a registered partnership may make an
order with regard to the division of property of the registered partners or the
provision of maintenance by one partner to the other424 in accordance with a
written agreement between such partners if it deems it just and equitable. 425
(6) Where there is no written agreement about the division of the property of the
registered partners or if the court is not satisfied that the division of property
420 Clause 31(1) of Annexure D in the 2003 Discussion Paper.
421 Clause 31(2) of Annexure D in the 2003 Discussion Paper.
422 Based on clause 33(1) of Annexure D in the 2003 Discussion Paper which in turn is based on
section 4(1) of the Divorce Act 70 of 1979.
423 Based on section 4(3) of the Divorce Act 70 of 1979. It is submitted that, while this possibility
may rarely present itself in practice, the Court should still be permitted to make such an order
where necessary.
424 The specific reference to maintenance is recommended in order to remedy the problem referred
to in the main text regarding clause 18(1) of the 2008 Bill.
425 Based on clause 33(2) of Annexure D in the 2003 Discussion Paper.
617
agreed to by the registered partners is just and equitable, the court may make
an order to divide the property in a manner which it deems just and equitable, in
accordance with section 22(2) - (5) of this Act.426
9.2.2.4 Extension of matrimonial property law by Court order
In 7.3.4.2 above it was argued that the Courts should be given the discretion, on
application, to grant the extension of any principle of matrimonial property law in
order to give effect to the originally-intended property regime selected by the
parties. This argument was based on the need to re-evaluate the application of
the so-called "contextualised choice model" in view of the Bill's failure to provide
an effective and well-defined alternative to matrimonial property law.427 It was
also explained that such a power should be available both during the existence of
and at the termination of the registered domestic partnership. In fact, bearing the
dynamics of human relationships in mind, it is likely that the need for an
extension of matrimonial property law to registered domestic partnerships will
arise more often in the case of the termination of such relationships than during
their existence. In addition, such a need may be particularly necessary in a
partnership to which the accrual system is made applicable due to the fact that its
results only become visible at the termination of the union as it is in effect "a
deferred community of gains.,,428 Be that as it may, the insertion of a provision
425
Based on clause 33(3) of Annexure D in the 2003 Discussion Paper. See note 419 for the need for
a cross-reference to clause 22 of the Bill. The 2003 version of the Bill included a final provision
(clause 33(4)) which read "[a) court granting an order to terminate a registered partnership may
make an order with regard to the division of the joint property of the registered partners in
accordance with a pre-registration agreement between the partners if it is satisfied that such
agreement is valid." It is submitted that this provision is unnecessary as the cross-reference to
section 22(2) - (5) that is proposed in subsection (6) already empowers the Court to consider the
provisions of such an agreement.
427
It will be recalled that within the context of property disputes, the gist of the "contextualised
choice model" is that it may be fair for a Court to refuse to extend matrimonial property law to
unmarried couples who have chosen not to marry one another. However, it was pointed out in
7.3.4.2 that the application of this aspect of the model could only apply where domestic
partnership legislation provided an effective and well-defined alternative to matrimonial property
law. As the 2008 Bill does not do so, the strict application of this argument should be relaxed by
providing a Court with the power to grant an extension in meritorious cases.
428
Hahlo 1985: 304.
618
into clause 15 that is substantially similar to that proposed for clause 8A429 above
is strongly recommended. As a consequence, subsections (7) and (8) should be
added to the proposed amended form of clause 15 in the preceding paragraph:
(7) A Court may, on application by either or both registered domestic partners at
the termination of a registered domestic partnership, and provided that
(a) there are sound reasons for doing so; and
(b) that no other person will be prejudiced thereby;
grant the extension of any principle of matrimonial property law which the Court
deems necessary in order to give proper effect to the property regime which was
intended to apply to the registered domestic partnership at the time it was
registered or since it was amended in accordance with section BA.
(B) In determining whether there are sound reasons for the extension sought under
subsection 7 the Court must have regard to all the circumstances of the
registered domestic partnership including, but not limited to:
(a) The terms of a registered domestic partnership agreement, if any;
(b) The extent to which the partners deliberately intended not to apply the
principles of matrimonial property law to their domestic partnership; 430
(c) The interests of the applicant registered domestic partner or partners;
(d) The interests of any child of the domestic partnership.
9.3 Consequences of termination
9.3.1 Inter-partner maintenance beyond termination of the partnership
Post-termination maintenance is regulated by clause 18 of the Bill, which states
the following:431
429 See 7.3.4.3 ante.
430 It is submitted that it will be acceptable-in view of the revised "contextualised choice model"-
to take this account as merely one of the factors.
431 Italics added.
619
Maintenance after termination
(1) In the absence of a maintenance agreement, a court may, after termination of a
registered domestic partnership as provided for in section l2(1)(b) and (c), upon
application, make an order which is just and equitable in respect of the payment
of maintenance by one registered domestic partner to the other for any
specified period or until the registered partner in whose favour the order is
given-
(a) dies;
(b) marries under the Marriage Act;
(c) marries under the Recognition of Customary Marriages Act;
(c) enters into a civil union; or
(d) enters into a registered domestic partnership.
(2) When deciding whether to order the payment of maintenance and the amount
and nature of such maintenance, the court must have regard to-
(a) the respective contributions of each partner to the registered domestic
partnership;
(b) the existing and prospective means of each of the registered domestic
partners;
(c) the respective earning capacities, future financial needs and obligations
of each of the registered partners;
(d) the age of the registered partners;
(e) the duration of the registered domestic partnership;
(f) the standard of living of the registered domestic partners prior to the
termination of the registered domestic partnership; and
(g) any other factor which in the opinion of the court should be taken into
account.
The first observation that needs to be made regarding this clause is the problem
created by the words "[i]n the absence of a maintenance agreement" in
subsection (1). For purposes of illustrating the difficulty created by this provision,
it is useful to compare section 7(1) of the Divorce Act of 1979 which states that:
620
A court granting a decree of divorce may in accordance with a written agreement
between the parties make an order with regard to the division of the assets of the
parties or the payment of maintenance by the one party to the other.
It is settled law that the use of the word "may" in section 7(1) entitles the Court
hearing a divorce matter to exercise its discretion as to whether or not to
incorporate the "written agreement" or part thereof into its final order.432 When
one compares this position to the extract from clause 18(1), the problem
becomes evident that under the latter provision a Court may only make an order
under clause 18 where there is no maintenance agreement between the parties.
Put differently, clause 18(1) dictates that the moment an agreement between the
parties is placed before the Court, the Court has no discretion but to follow it; a
situation that would be nothing short of preposterous.
While it is true that expecting the Courts to scrutinise all written arrangements
may considerably impair the contractual autonomy of the parties thereto,433it is
submitted that the trend in post-1994 South African legislation,434 coupled with
the dire need for the protection of vulnerable partners435(possibly even more so
in the context of novel and untested domestic partnerships legislation) may justify
this intrusion. It is therefore submitted that subsection (1) should be expanded
so as not only to overcome the limitation identified in the preceding paragraph,
but also-as was also proposed in the context of clause 15-to vest the Court
with a wide discretion to deviate from the agreement reached between the
partners so as to grant an order that it deems to be just and equitable. Provided
432 See Van Schalkwyk 1990: 72, 73 and the authorities cited.
433 See Van Schalkwyk 1990: 73.
434 See section 7(6) and (7)(b) of the Recognition of Customary Marriages Act 120 of 1998 which
requires a man who wishes to enter into a second or further customary marriage to conclude a
written contract to govern the matrimonial property system of his marriages which must be
submitted to a Court for approval. Subsection (7) empowers the Court to permit further
amendments to the contract, to impose any conditions or to "refuse the application if in its
opinion the interests of any of the parties involved would not be sufficiently safeguarded by
means of the proposed contract."
435 See in general Bonthuys 2001: 192 et seq.
621
that the agreement satisfies this condition, the contractual freedom enjoyed by
the parties to such an agreement will remain unfettered.436
A second observation pertaining to subsection (1) of clause 18 is that it imposes
a greater restriction in terms of the duration of a maintenance order granted by
the Court itself (as opposed to an order merely confirming the written agreement)
than that imposed by section 7(2) of the Divorce Act. This is because the
Divorce Act only empowers a Court to grant an order "until the death or
remarriage of the party in whose favour the order is granted," while clause 18
makes specific provision for civil unions and for registered domestic
partnershlps.?" Clause 18 is commendable in this regard, as it correctly reflects
the recent evolution of South African family law. In fact, while a significant
portion of this Chapter will be devoted towards improving the 2008 Bill by aligning
it with established legislation,438 it is suggested that this time around a well-
entrenched statute such as the Divorce Act should in fact be amended in
accordance with clause 18.439
436
Parties to an agreement can therefore agree, for example, that the maintenance obligation will
endure beyond the death or remarriage of either of the parties thereto, or that it is subject to a
dum casta et sola vixerit provision (that is, that the maintenance obligation will cease if the
indebted party should lead an unchaste life-see Van Schalkwyk 1990: 74). According to Cronjé
and Heaton (2004: 153) a dum casta clause is today "usually limited to living with another person
in a life partnership outside marriage" with the result, it is submitted, that entering into an
unregistered life partnership will henceforth also bring an end to such maintenance. Such a
provision must, however, be specifically included in the agreement (Van Schalkwyk 1990: 75).
Whatever the parties decide to include in their agreement, it is of the utmost importance for
them to ensure that the boundaries of their agreement are clearly-demarcated. For example, in
the recent case of Odgers v De Gersigny 2007 (2) SA 305 (SCA) the Supreme Court of Appeal held
that the duty of the liable party to maintain the party who is entitled to claim maintenance
continues beyond the remarriage of the latter if the consent paper does not expressly state that
it terminates upon such an occurrence. The parties will therefore be held to the terms of their
agreement, which cannot be overridden by implied terms that contradict their intention as
expressed in the agreement (in casu the appellant had contended that in terms of the common
law it was implicit that a maintenance obligation fell away upon the remarriage of the party who
is entitled to claim maintenance)-see par [4) and [10).
437
See subsection (l)(c) and (d).
438
See 12 below.
439
It is suggested that the words "or entering into a civil partnership in accordance with the Civil
Union Act, 2006 (Act 17 of 2006) or registered domestic partnership in accordance with the
Domestic Partnership (Act] ..." should be inserted after the word "re-marriage" in section 7(2) of
the Divorce Act 70 of 1979. A secondary beneficial effect of this amendment is that it will also
622
It appears, by way of analogous case law regarding section 7(2) of the Divorce
Act,440 that the Court will not be empowered to grant an order for maintenance
that operates beyond the death of the liable partner.?"
A further observation regarding the ambit of the Court's discretion in terms of
subsection (1) is that it is noticeable that no reference is made to a Court's
restriction regarding an unregistered domestic partnership. This presumably
implies that a Court could include such a limitation if it deemed doing so to be
"just and equitable.,,442 If such a restriction were not imposed by the Court, the
fact that the party who is entitled to claim maintenance enters into an
unregistered domestic partnership would not constitute a "marriage" for the
purposes of clause 18(1) and therefore could not terminate a maintenance order
granted by the Court.443 Nevertheless, the fact that the party who is entitled to
claim maintenance is being maintained by someone else may be taken into
account in terms of reducing the amount payable according to the original order
or perhaps cancelling it outriqht.?"
Regarding the factors to be considered when a Court is required to decide
"whether" to make an order and what the "amount and nature" thereof should be,
clause 18 does not differ markedly from section 7(2) of the Divorce Act. The only
difference is that the parties' "conduct in so far as it may be relevant to the break-
down of the [relationship]" is not listed as a separate factor in the former
indirectly "update" the Recognition of Customary Marriages Act 120 of 1998 (section 8(4) of
which contains a direct cross-reference to section 7 of the Divorce Act of 1979).
440 70 of 1979.
441 Hodges v Coubrough NO 1991 (3) SA 58 (0), dictum at 66 (C) - (G) (dealing with the distinction
between the specificity of maintenance obligations imposed on a deceased estate ex contractu
versus the generality of those imposed by statute) referred to with approval in Odgers v De
Gersigny 2007 (2) SA 305 (SCA) at par [9]. Compare Cronjé and Heaton 2004: 155, 156 who opine
that the principle that an action for loss of support lies against a person who negligently killed an
ex-spouse who was liable for maintenance (Santam Bpk v Henery 1999 (3) SA 421 (SCA)) should
imply that the deceased estate can still be liable for maintenance under an order granted in
terms of section 7(2) of the Divorce Act.
442 Hahlo and Sinclair 1980: 44.
443 Hahlo and Sinclair 1980: 44.
444 Hahlo and Sinclair 1980: 44.
623
provision. As no degree of (mis)conduct is specified,445 it is submitted that
nothing hinges on this omission as the conduct of the partners could in any event
be taken into account as "any other factor which in the opinion of the Court
should be taken into account.r''"
In conclusion, two submissions regarding amendment are made:
(i) It is submitted (i) that the words "or, if the court is not satisfied that the
maintenance agreement entered into between the registered partners is
just and equitable in the light of the factors listed in subsection (2) of this
section," be inserted into subsection (1) of clause 18 after the words "In
the absence of a maintenance aqreernent;"?" and
(ii) Section 7(2) of the Divorce Act 70 of 1979 should be amended to restrict
the Court's power to grant an order for maintenance beyond the time at
which the party who is entitled to claim maintenance enters into a civil
partnership or a registered domestic partnership with someone else.448
9.3.2 Maintenance of a surviving registered domestic partner and intestate
succession
It is submitted that no drastic amendments are required to these clauses (19 and
20)449of the BilI.450 Nevertheless, for the purposes of certainty, it is suggested
445
For example, section 9 of the Divorce Act 70 of 1979 which specifically requires "substantial
misconduct" (emphasis added) to be considered.
446
Subsection 2(g).
447
Where a written agreement has been entered into the parties would be free subsequently to
have that agreement varied or set aside by application to the Maintenance Court in accordance
with the provisions of the Maintenance Act 99 of 1998.
448
See note 439 where the precise wording of this amendment is proposed.
449
These clauses respectively state:
"19. Maintenance after death
For purposes of this Act, a reference to 'spouse' in the Maintenance of Surviving Spouses Act
must be construed to include a registered domestic partner.
20. Intestate succession
For purposes of this Act, a reference to 'spouse' in the Intestate Succession Act must be
construed to include a registered domestic partner."
624
that the reference to "spouse" in clause 19 should be expanded to refer to
"spouse and survivor" so as to reflect the terminology employed by the
Maintenance of Surviving Spouses Act 27 of 1990.
450 Although it is perhaps only of academic interest at this stage, mention may be made of a recent
attempt to amend the Intestate Succession Act 81 of 1987. In this regard, the original version of
the Judicial Matters Amendment Bill [B48-2008) that appeared on 18 June 2008 attempted,
amongst many other things, to amend section 1 of Act 81 of 1987 in order formally to align it
with the Constitutional Court's finding in the case of Gory v Kolver NO 2007 (4) SA 97 (CC)
(discussed in 3.4.1 in Chapter 5 above). Of particular importance was the proposed insertion of
an additional subsection to section 10f the 1987 Act (in the form of a subsection (8)) which was
to read as follows:
"(8) (a) The provisions of this section relating to a partner in a permanent same-sex life
partnership in which the partners have undertaken reciprocal duties of support are,
subject to paragraph (b), deemed to have come into operation on 27 April 1994 and
only apply in respect of such partners if the court is satisfied that the partners in
question were not able to formalise their partnership as contemplated in the Civil Union
Act, 2006 (Act No. 17 of 2006).
(b) The provisions of paragraph (a) shall not affect any transfer of ownership that has
taken place pursuant to the distribution of the residue of any estate, unless it is
established that, when such transfer was effected, the transferee was on notice that the
property in question was subject to a legal challenge on the grounds of an entitlement
to benefit from an intestate estate."
This proposal was met with strong reservations by the Law Society of South Africa who expressed
the opinion that subsection (8) was "legally untenable, absurd, repugnant to the rule of law and
[that it) opened the legislation to constitutional challenge" (see Whittle 2008: 19). These
sentiments appear to have been accepted in the latter half of 2008 as the Portfolio Committee
Amendments to the Bill rejected this proposal in toto in the second version of the Bill (Bill A
[B48A-2008)). Nevertheless, three important lessons can be learnt from this particular situation:
First, it is submitted that the introduction of subsection (8)(a) would have been blatantly
unconstitutional as it would not provide for heterosexual life partners to avail themselves of a
right to intestate inheritance by proffering reasons why they could not marry or formalise their
relationships by way of a civil partnership under the Civil Union Act 17 of 2006. Second,
subsection (8) clearly loses sight of the fact that, in terms of the "contextualised choice model" a
claim for intestate succession is a need-based claim (see 3.4.1.2 in Chapter 5 above), with the
result that the choice (or lack thereof) of formalising a relationship (whether it be heterosexual
or homosexual in nature) is irrelevant as long as the surviving partner can prove that a reciprocal
duty of support existed while the relationship existed. Finally, the entire exercise of amending
legislation such as the Intestate Succession Act so as to align the same with pre-Civil Union Act
judicial pronouncements would be unnecessary if the Domestic Partnerships Bill were enacted
along with the amendments suggested throughout this study in accordance with the rubric. This
development would serve to streamline the entire process regarding the law of intestate
succession by providing for both registered and unregistered domestic partners to inherit
intestate in appropriate circumstances and would correctly reflect the relevance and status of
the so-called "contextualised choice model" in contemporary South African family law. It can
therefore be concluded that the proposed amendments to Act 81 of 1987 were rightly rejected.
625
On the other hand it is submitted that the Maintenance of Surviving Spouses
Act51 may need to be amended in order to be aligned with the possibility that a
"survivor" may not only remarry but may conceivably also enter into a registered
domestic partnership which-as in the case of remarriage-should also
terminate the maintenance obligation imposed on the deceased estate. It is
therefore submitted that section 2(1) of the Act should be amended in order to
reflect this possibility:
If a marriage is dissolved by death after the commencement of this Act the survivor shall
have a claim against the estate of the deceased spouse for the provision of his
reasonable maintenance needs until his death or remarriage or until entering into a
registered domestic partnership in so far as he is not able to provide therefor from his
own means and earnings.
In order further to facilitate this amendment, a definition of "registered domestic
partnership" ought to be included in section 1 of the Act to mean "a registered
domestic partnership entered into in accordance with the provisions of the
Domestic Partnerships Act ..."
No amendment to the Intestate Succession Act 452 appears to be required.
9.3.3 Delictual claims
Clause 21 of the Bill states the following:
21. Delictual claims
(1) For the purpose of claiming damages in a delictual claim, partners in a
registered domestic partnership are deemed to be spouses in a legally valid
marriage.
451 27 of 1990.
452 81 of 1987.
626
(2) A partner in a registered domestic partnership is not excluded from instituting a
delictual claim for damages based on the wrongful death of the other partner
merely on the ground that the partners have not been legally married.
(3) A partner in a registered domestic partnership is a dependant for purposes of
the Compensation for Occupational Injuries and Diseases Act.
This clause was cloned from a provision that appeared in the 2003 Discussion
Paper.453 The only real difference that appears in the 2008 Bill is that it is
included under that part of the Bill (Part Ill) that deals with the termination of
domestic partnerships as such.454
Regarding this clause, it is not immediately apparent why the Legislature saw the
need for enacting both subsections (1) and (2). This is because these sections
overlap to such an extent that subsection (2) appears to be redundant: The fact
that a registered domestic partner is deemed to be a spouse according to
subsection (1) of necessity implies that this entitles him or her to institute a claim
based on the wrongful death of his or her partner.455 Secondly, it is also not clear
why the Legislature included a claim for occupational injury or death under the
heading delictual liability, as the latter form of liability is of a statutory as opposed
to purely delictual nature. Furthermore, in terms of the latter claim there is no
apparent reason for distinguishing between registered and unregistered domestic
partners (there is no similar provision in chapter 4 of the Bill). Such a distinction
is irrational and fails to take cognisance of the fact that this Act has catered for
life partners in the narrow sense since 1998,456 and, moreover, that only
providing for registered domestic partners would drastically reduce the protection
453 See clause 21 of Annexure D in the 2003 Discussion Paper.
454
This fact poses specific problems in relation to the recognition of consortium omnis vitae
between registered domestic partners-see 6.3.2.3 above.
455
Subsection (1) would also permit a registered domestic partner to institute claims based on the
infringement of consortium omnis vitae, such as adultery, harbouring or enticement.
456
The definition of "dependent" was amended by the Compensation for Occupational Injuries and
Diseases Amendment Act 61 of 1997 that came into operation on 1 March 1998.
627
provided by the Act.457 This state of affairs highlights the necessity of amending
the Compensation for Occupational Injuries and Diseases Act so as to allow both
a registered and an unregistered domestic partner to qualify as a "dependant of
an employee", for, if this were to occur, the necessity for retaining clause 21(3)
would fall away altogether. This amendment will be dealt with in 12 below.458 In
the light of these comments it is proposed that the clause dealing with delictual
liability should simply state that:
For the purpose of claiming damages in a delictual claim, partners in a registered
domestic partnership are deemed to be spouses in a legally valid marriage.
As alluded to in the introductory paragraph, there is no reason why a provision of
this nature should only appear under that part of the chapter dealing with the
termination of a registered domestic partnership. Indeed, it is submitted that the
fact that partners are deemed to be spouses in this context should instead be
regarded as an automatic legal consequence of entering into a registered
domestic partnership. For this reason it is suggested that the provision should be
shifted to Part II of chapter 3 and inserted as clause 11A of the Bill.
9.3.4 Time limits for applications by registered domestic partners
Before the clause dealing with property division (clause 22) is discussed, a few
remarks must be made regarding clause 23 of the Bill which attempts to
prescribe a time limit within which a registered domestic partner may institute
457
In its 2003 Discussion Poper the South African Law Reform Commission appears to have
appreciated the need for permitting unregistered partners to qualify as dependants for the
purposes of inter alia Act 130 of 1993 as it included a footnote reference to this Act when it
stated that: "Besides the consequences provided for in the Bill, additional consequential
amendments would have to be made so as to include the definitions of these relationships in
other relevant legislation" (see SALRC2003: 305).
458
In 12.2.3 "[t]he insertion of the words 'domestic partnership' as well as the insertion of a
definition of that term which should read 'domestic partnership' means a registered or
unregistered domestic partnership in accordance with the Domestic Partnership Act ..." will be
proposed.
628
proceedings against his or her erstwhile partner. The provision in question
(clause 23) states that:
(1) Except as otherwise provided for by this section, an application to a court for an
order under section 21 of this Act must be made within two years after the
termination of the registered domestic partnership.
(2) A court may, at any time after the expiration of the period referred to in
subsection (I), grant leave to an applicant to apply to the court for an order
under section 21 of this Act, if the court is satisfied, having regard to such
matters as it considers relevant, that greater hardship would be caused to that
applicant if the leave was not granted than would be caused to the respondent
if the leave was granted.459
It must be mentioned, from the outset, that the origin and scope of this provision
are bewildering to say the least. To begin with, no similar clause is to be found in
Annexure D of the 2003 Discussion Paper. The first time a clause of such a
nature appears on the legislative scene with respect to registered domestic
partnerships is in the Commission's 2006 Report in which, without any
explanation, one finds a clause that applies a time limit of two years not to a
claim under any specific provision of the proposed legislation, but to "an
application to a court for an order under this Chapter.,,46o This provision was
carried over into the first Civil Union Bill that appeared on 31 August 2006,461
clause 35 of which deviated from its predecessor's cross-reference to "this
Chapter" by instead referring to "clause 34" (the provision dealing with a claim for
property division).462 Following this development, the Domestic Partnerships Bill,
459 Emphasisadded.
460 SeeSALRC2006: 361.
461 [926-2006].
462 Clause35(1) states that: "Except as otherwise provided by this section, an application to a court
for an order under section 34 ["Property division"] must be made not later than two yearsafter
the termination of the registered domestic partnership." A mistake however appears to have
slipped into subsection (2) of clause 35: "(2) A court may, at any time after the expiration of the
period referred to in subsection (1), grant leave to an applicant to apply to the court for an order
under section 33, where the court is satisfied, having regard to such matters as it considers
629
2008 appeared which, as can be seen from the extract above, once again
differed from its immediate predecessor in terms of its applicability by cross-
referring to "section 21" (which in fact has nothing to do with property division but
instead deals with delictual claims).
This brief analysis shows that, in as far as time limits are concerned, the
proposed registered domestic partnership legislation that has appeared in recent
years has vacillated from imposing no time limit whatsoever, to a time limit
imposed on all claims under that specific chapter of the Bill (therefore including
claims for maintenance, intestate succession, delictual liability, property division
and, oddly enough, even applying the time limit to cases where children are
involved), to claims regarding property division only, and finally-and most
unexpectedly-to delictual claims as such. In the light hereof it need hardly be
said that ascertaining the precise ambit of the intended time limit is a matter of no
small conjecture; a fact that is compounded by the Law Reform Commission's
silence on the matter.
It is only when the Commission's proposal regarding the unregistered domestic
partnership is considered, that some clue as to the origin of clause 23 is to be
found. In this regard the Commission makes a reference to the New South
Wales Property (Relationships) Act of 1984's definition of "contribution" following
which a provision similar to clause 23 appears, once again without any further
explanation.f'" The only conclusion, therefore, is that the Commission decided
to model what was to become clause 23 of the 2008 Bill (and its earlier
equivalents) on the Australian example. Proceeding from this postulation, the
correctness of clause 23 can now be assessed.
relevant, that greater hardship would be caused to that applicant if the leave were not granted
than would be caused to the respondent if the leave were granted" (emphasis added). Clause 33
refers to delictual claims and the reference thereto is clearly incorrect. The discrepancy between
these two subsections may have led to the incorrect reference in the 2008 Bill.
463
SALRC2006: 416, 417.
630
Part 3 of the New South Wales Property (Relationships) Act 1984 is entitled
"[p]roceedings for financial adjustment" and it permits claims to be instituted for
both maintenance and/or for the adjustment of the property interests of either or
both parties to a "domestic relationship.r'?" Furthermore, according to section
18(1) of the Act, an application under Part 3 must be made within two years of
the termination of the domestic relationship, unless leave is granted for an
extension of this period.465 Of great significance for the purposes of this study is
that the time limit applies "to an order under this Part" with the result that it
applies to both maintenance and/or property adjustment claims. A further matter
of significance is that the Act does not require a claim for maintenance and
property readjustment to be instituted sirnultaneously.t'" Nevertheless, if a claim
is instituted for maintenance, the Court is empowered, in deciding "whether" to
make such an order and, if so, what the quantum thereof will be, to consider "any
order made or proposed to be made under section 20 with respect to the
property of the parties to the relationship.,,467 In the end result it is therefore clear
(i) that the time limit does not only apply to property division applications, and (ii)
that an interrelationship exists between an order for maintenance and any order
regarding property division.
An important difference that exists between the position in New South Wales and
that proposed under chapter 3 of the South African Bill is that the former does not
subscribe to the registered partnership model. Therefore, contrary to the position
464 Section 14(1). It will be recalled that section 5(1) of the Act defines a "domestic relationship" as
including both "de facto" (conjugal) as well as "close personal" (non-conjugal) relationships-see
3.2 above.
465 According to subsection (2) of section 18, a Court may grant leave for an application after the
expiry of the two-year period "where the court is satisfied, having regard to such matters as it
considers relevant, that greater hardship would be caused to the applicant if that leave were not
granted than would be caused to the respondent if that leave were granted." The only exception
to this provision is where, in terms of section 27(1)(bJ, a claim for rehabilitative maintenance has
been granted as a result of the applicant's earning capacity being adversely affected by the
circumstances of the relationship.
466 Section 14(2): "An application referred to in subsection (1) may be made whether or not any
other application for any remedy or relief is or may be made under this Act or any other Act or
any other law."
467 Section 27(2)(d).
631
that will obtain if chapter 3 of the South African Bill comes into operation, the
Australian Act does not provide for the registration of the domestic relationship,
and hence for the necessity for the relationship as such to be terminated by a
Court order in apposite circumstances. Instead, by adhering to the so-called
"judicial discretion" or ex post facto model, the Act provides the means by which
the applicant can approach the Court for an order which-provided the Court is
satisfied that the relationship meets certain requirements-regulates the financial
consequences of the termination of the relationshtp.f'" This important distinction
between these Acts needs to be borne in mind.
To return to the position in South Africa, a comparison of the inconsistent cross-
references in the prospective legislation contained in the 2006 Report, the first
Civil Union Bill and the 2008 Bill reveals that it can be accepted that the overall
intention of the Legislature is to apply the time clause to property division as
such. Therefore, the reference in clause 23 to "section 21" is clearly incorrect, as
is the reference in the 2006 Report to "an order under this Chapter."
It will be recalled that the Domestic Partnerships Bill only insists on an application
to Court for the termination of the partnership where the registered domestic
partners have children. Therefore, where childless domestic partners wish to
terminate their partnership an application to Court is unnecessary, and the
parties are permitted to regulate aspects such as maintenance or property
division by way of a written agreement between themselves.r'" The position
therefore differs from the case of a marriage in which case a High Court order is
an absolute prerequisite in order to terminate the marriage while both spouses
are alive, regardless of whether or not there are children involved. Therefore,
within the context of the proposed South African registered partnership model
that permits a certain degree of informality and is intended specifically to cater for
vulnerable parties, it prima facie appears to be fair not to require an application to
468
See SALRC2006: 367.
469
See 9.2.2 above where amendments to this position are proposed.
632
be brought immediately after the termination of the partnership provided (i) that
no children are involved, and (ii) that a time limit of some kind is imposed in the
interests of legal certainty. Such an option would, however, also have to take
cognisance of the fact that a written agreement may have been entered into
between the parties prior to the application sought, with the result that the Court
considering the application will have to be empowered to disregard the terms of
such an agreement where it would be just and equitable to do so. In addition, the
comparison with Australian law shows that the additional period of time granted
for such an application should not only be limited to claims regarding property
division, but should also apply to a claim for inter-partner maintenance under
clause 18 of the Bill. Finally, the fact that both clauses 18 and 22 of the Bill do
not limit the Court's discretion but permit it to consider all other relevant factors470
will facilitate the interrelationship between such claims. In other words, the wide
discretion permitted in both of these clauses will permit a Court, in considering a
claim for property division under clause 22, to consider the fact that a
maintenance award has or will be made under clause 18.471
It is consequently submitted that clause 23 of the Bill should be amended to read:
(1) Except as otherwise provided for by this section, an application to a court for an
order under sections 18 and/or 22 of this Act must be made within two years
after the termination of the registered domestic partnership.
(2) A court may, at any time after the expiration of the period referred to in
subsection (I), grant leave to an applicant to apply to the court for an order
under sections 18 and/or 22 of this Act, if the court is satisfied, having regard to
such matters as it considers relevant, that greater hardship would be caused to
that applicant if the leave was not granted than would be caused to the
respondent if the leave was granted.
470
See clauses 18(2)(g) and 22(4)(f).
471
Also see the discussion of Beaumont v Beaumont 1987 (1) SA 967 (A) in 9.3.5.3 below.
633
9.3.5 Property division
Clause 22 of the Bill states the following:
(1) In the event of a dispute regarding the division of property after a registered
domestic partnership has terminated, one or both of the registered domestic
partners may apply to court for an order to divide their joint property or
separate property, as the court may deem fit.
(2) Upon an application for the division of joint property, a court must order the
division of that property which it regards just and equitable with due regard to
all relevant factors.
(3) Upon an application for the division of separate property or part of the separate
property, a court may order that the separate property or part thereof of the
other registered domestic partner as the court regard just and equitable, be
transferred to the applicant.
(4) A court considering an order contemplated in subsections (2) and (3) must take
into account-
(a) the existing means and obligations of the registered domestic partners;
(b) any donation made by one registered domestic partner to the other
during the subsistence of the registered domestic partnership;
(c) the circumstances of the registered domestic partnership;
(d) the vested rights of interested parties in the joint and separate property
of the registered domestic partners;
(e) the existence and terms of a registered domestic partnerships
agreement, if any between the registered domestic partners; and
(f) any other relevant factors.
(5) A court granting an order contemplated in subsection (3) must be satisfied that
it is just and equitable to do so by reason of the fact that the registered
domestic partner in whose favour the order is granted, made direct or indirect
contributions to the maintenance or increase of the separate property or part of
the separate property of the other registered domestic partner during the
existence of the registered domestic partnership.
634
9.3.5.1 Aligning clause 22 with clause 18 as well as with the time limit
imposed by clause 23
In view of the conclusions reached in 9.3.1, the first recommendation that needs
to be made is that clause 22 should be aligned with clause 18 of the Bill and
should provide for an application to be brought to a Court to overrule an
agreement that has been entered into between the parties if the Court deems it
just and equitable to do so. This can be achieved by combining subsections (1)
and (2) of the original clause:
(1) In the event of a dispute regarding the division of property after a registered
domestic partnership has terminated, or, if the court is not satisfied that an
agreement entered into between the registered partners in consequence of the
termination of a registered domestic partnership other than in circumstances
envisioned in section 15472 is just and equitable as far as the division of property
is concerned in the light of the factors listed in subsection (3) of this section, a
Court may, upon application by one or both of the registered domestic partners,
may apply to court for an order the division of to divide their joint property or
separate property, as the court may deem fit.
9.3.5.2 The quantum and merit processes
In respect of the Court's competence to order the division of joint or separate
property, it is submitted that valuable guidelines can be obtained from section 7
of the Divorce Act of 1979. The latter Act permits a redistribution of assets
between spouses to certain marriages that were entered into with complete
472
This provision envisions a situation where the property has not already been divided as per a
Court order obtained under section 15 but where, for example, an informal agreement was
entered into containing a division which one of the partners alleges not to be just and equitable.
635
separation of property.473 In this regard, section 7(4) requires such a
redistribution to be just and equitable in view of the fact that a spouse contributed
either directly or indirectly to the maintenance or increase of the other spouse's
estate.474While the requirement of a contribution is purely a question of fact, the
just and equitable requirement "involves the exercise of a purely discretionary
judgment in equity."475 Once a Court is satisfied that these conjoined criteria
have been satisfied, section 7(5) lists a number of factors (which are substantially
similar to those listed in clause 22(4)) which must assist the Court in determining
the quantum of such a redistribution.
Subsection (4) of the current version of clause 22 of the Domestic Partnerships
Bill states the following:
(4) A court considering an order contemplated in subsections (2) and (3) must take
into account-
(a)
If this subsection were to be enacted in this form, it would create a subtle, but
nonetheless significant discrepancy between the redistribution processes
prescribed by the Divorce Act and the Domestic Partnerships [Act] as far as
separate property is concerned in that in the former Act the factors are
specifically used to determine the quantum of the redistribution, while in the latter
case these factors will be part of the test to determine whether the redistribution
is just and equitable. In effect, the Domestic Partnerships [Act] will therefore
conflate the quantum and merit assessments and thereby depart from the
established principle regarding re-distributing separate property in terms of which
473
According to section 7(3) of the Divorce Act 70 of 1979, these marriages are (i) marriages
concluded out of community of property and out of community of profit and loss without the
accrual system that were entered into before 1 November 1984; or (ii) marriages between black
persons that were concluded before 2 December 1988 in terms of section 22(6) of the Black
Administration Act 38 of 1927. In addition it is also required that the parties (irrespective of
whether they form part of category (i) or (ii)) must not have been able to enter into a deed of
settlement regarding the division of their assets.
474
Beaumont v Beaumont 1987 (1) SA967 (A) at 988 (I).
475
Beaumont v Beaumont 1987 (1) SA967 (A) at 988 (I) - 989 (A).
636
the second "jurisdictional precondition'Y" (the purely discretionary "just and
equitable" requirement) must be evaluated with reference to the first precondition
(the factual contribution criterion), and thereafter the listed factors are considered
to determine the quantum. It is submitted that there is no reason for doing so.
The second possibility, namely the competence to redistribute joint property,
obviously requires a different approach due to the fact that there is no separate
estate towards which the applicant partner is capable of contributing. In this
regard, therefore, it appears to make sense to consider the factors enumerated in
subsection (4)(a) - (f) for the purposes of determining whether the division sought
is just and equitable.
In order to align the approach under clause 22 with the approach in the law of
divorce, it is submitted that subsection (4) should be amended as follows:
(4) A court considering whether to grant an order contemplated in subsection (2)
and determining the assets or part thereof to be transferred under subsection (3)
must take into account-
(a)
9.3.5.3 The application of the redistribution competency: Guidance from
the (divorce) Courts
In exercising their power to redistribute the separate property of the partners to a
registered domestic partnership under the Domestic Partnerships Bill the Courts
will be exercising this power outside the realm of marriage for the very first time.
Even more significantly, the Courts will be moving into completely unchartered
territory as far as the competence to redistribute joint property is concerned. It is
submitted, nevertheless, that valuable lessons can be learned in both instances
476 Beaumont v Beaumont 1987 (1) SA 967 (A) at 988 (H) - (J); confirmed by Buttner v Buttner 2006
(3) SA 23 (SeA) at par [22).
637
from the way in which the redistribution competency has been exercised by the
South African Courts within the context of the law of divorce.
As far as the redistribution of separate property is concerned, the case of
Beaumont v Beeumonï'" provides an appropriate first port of call. Over and
above the significance of the Court's finding regarding the nature of the
"contribution" required for the purposes of the redistribution ,478this case provides
authority for the view that neither the so-called "one-third starting point" (in terms
of which the guideline applies that one third of the assets should be allocated to
the spouse with fewer assets) nor any other similar "judicial glosses" which may
fetter the Court's discretion have any place in our law.479 In addition, the Court in
Beaumont confirmed the fact that an interrelationship exists between an order for
post-divorce spousal maintenance and an order for the redistribution of assets,
so that the former order can be taken into account as "any other factor" when
considering the quantum of the latter."? This finding is of particular significance
for the purposes of this study as, although no similar direct cross-reference is
found in the Bill (in the sense that the maintenance provision does not refer by
name to the provision dealing with property division) it lends credence to the
assertion in 9.3.4 above that such an interrelationship can be considered by
virtue of the "any other factor" provisions that appear in both clauses. With
reference to the so-called "clean-break principle" Botha JA expressed his support
for the Courts to grant divorce orders that are geared towards "[achieving] a
complete termination of the financial dependence of the one party on the other, if
the circumstances permit.,,481 Finally, the Court in Beaumont confirmed that a
"conservative approach will be adopted in assessing a party's misconduct as a
477 1987 (1) SA 967 (A).
478 It has become settled law that the "ordinary duties of 'looking after the home' and 'caring for the
family'" will qualify as such (at 997 (F) - (G)) and Katz v Katz 1989 (3) SA 1 (A) at 15 (D) - (I)) and
that such a contribution must be of a positive nature-see Kritzinger v Kritzinger 1989 (1) SA 67
(A) at 88 (D) - 89 (H).
479 At 991 (A) - (H), confirmed by Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SeA) at par [22).
480 At 991 (I) - 992 (F).
481 At 993 (A) - (B). This approach has been referred to with approval in subsequent case law such
as Katz v Katz 1989 (3) SA 1 (A) at 11 (C) - (D) and Meyers v Marcus and Another 2004 (5) SA 315
(C) at 326 (A).
638
relevant factor" and that there should be a "conspicuous disparity" between the
conduct of the spouses before a Court should consider the same.482 This finding
should also be applied in the context of property division in registered domestic
partnerships, where the aim of such division is similarly not punitive.
A second set of highly relevant lessons can be taken from Bezuidenhout v
Bezuidenhout,483 a case in which the Trial Court had, on the basis of English
jurisprudence, held that in assessing the quantum of a redistribution order, the
point of departure should be for a Court to attempt to share the sum-total of the
spouses' combined estates equally unless there was a good reason for not doing
SO.484 This approach did not find favour with the Supreme Court of Appeal.
Writing for a unanimous Court, Brand JA held that the imposition of a starting
point such as the one suggested by the Court a quo would contradict the
approach in Beaumont and would place an untenable restraint on the "wide
discretion" granted by section 7(3).485 Moreover, Justice Brand cautioned that
the approach in English law did not sit well with the redistribution competency
granted to the South African Courts:
[IJt is a well-known fact that our common law provides for marriages in community of
property as the norm while the English system does not. The result is that, unlike in
England, a marriage can in our law be concluded out of community of property only if
the parties consciously elect to do so in terms of an antenuptial agreement executed
before a notary public. Of course we know that these contracts often led to great
inequity and unfairness, particularly towards wives who performed their traditional role.
This, after all, was the raison d'être for the enactment of s 7(3). Nevertheless, its
formulation reflects a deliberate choice on the part of the Legislature to limit the courts'
discretion in interfering with the contractual election-good or bad-made by the
parties when they entered into their marriage. For instance, the section applies only to
482 At 994 (E) - (J); confirmed by Buttner v Buttner 2006 (3) SA 23 (SCA) at par (30).
483 2005 (2) SA 187 (SCA).
484 At par (25).
485 Par (22) and (23).
639
marriages that were entered into prior to the commencement of the Matrimonial
Property Act 88 of 1984 on the basis of an antenuptial contract. With regard to
marriages entered into subsequently, in terms of an antenuptial contract, the section
finds no application at all. (They are governed by ch 1 of the Matrimonial Property Act
88 of 1984.) Women whose marriages were entered into later and with the exclusion of
the accrual system may therefore be in the same disadvantaged position as before.
Some suggest that the Legislature was too conservative and the reasons for its choice
difficult to understand ... One can sympathise with these views. The fact remains,
however, that the Courts cannot go further than the Legislature allows them to go and
that the Legislature does not allow them to treat all marriages upon divorce as if they
were .In communit.y 0f property and W.ithout an antenup tilaI contract. 486
It is important to note that the Bezuidenhout case held that a 50:50 division
cannot be the "starting point or general guide."487 This does not however mean
that an equal division cannot be made when on the facts it is clear that the
parties made a conscious choice to regard themselves as "partners" so that their
respective contributions were deemed by them to be of equal value. In Buttner v
Buttner 488the Supreme Court of Appeal held that in such a case "fairness
demands that effect be given, on divorce, to the principle of equal sharing which
the parties consciously applied throughout their married life.,,489To summarise, a
combined reading of Beaumont, Bezuidenhout and Buttner shows that while
there is no "general guide" or "starting point", the Court may, in exercising the
wide judicial discretion granted to it under section 7(3), find that the principle of
fairness demands a 50:50 sharing on the facts of the matter at hand.
It is submitted, within the context of property redistribution in terms of the
Domestic Partnerships Bill, that at least two valuable lessons can be taken from
this statement. The first, that pertains to the redistribution of separate property
486
Par [21] (emphasis and italics added).
487
Par [22] (emphasis added).
488
2006 (3) SA 23 (SeA).
489 Par [25].
640
under subsections (3), (4) and (5), is that the dictum quoted above is equally
applicable to registered domestic partnerships with the result that no 50:50
starting point should be applied in attempting to redistribute such property. The
second, and probably most valuable lesson of all, pertains to the division of the
joint property of the registered domestic partners. In this regard it is submitted
that the same dictum quoted above would be just as applicable regarding the
division of such property. This is because even though it is tempting to suggest
that by virtue of the facts (i) that the Domestic Partnerships Bill imposes the
opposite proprietary "norm" to that of a marriage thus leading to the assumption
that the approach in English law could far more readily be accommodated within
the realm of the registered domestic partnership than in the case of a marriage,
and (ii) that the issue at hand involves the division of joint as opposed to
separate property thereby justifying the inference that the parties intended to
share in that property on an equal basis, these considerations would do little to
change the fact that-as is the case with section 7(3) of the Divorce Act-the
Legislature has deliberately elected not to fetter the Court's discretion in dividing
the property."? (In fact, it may be argued that in dividing joint property the Court
enjoys an even wider discretion than in dividing separate property as the
contribution criterion need not be satisfied with the result that the division is made
on the basis of a "[pure] discretionary judgment in equity" without any
precondition needing to be satistieo.ï'?'
9.3.5.4 Deferral of claims
Clause 22 makes no provision for the satisfaction of an order granted by the
Court to be deferred. This is an oversight which must be remedied; particularly in
view of the fact that the possibility of deferral is provided for in the case of the
490 As a consequence, it would appear in the light of decisions such as Bezuidenhout (at par [17] -
[18]) and Buttner (at par [20]) that this wide discretion will imply that a misdirection by the Court
of first instance would be a prerequisite for such a discretion to be interfered with on appeal.
491 Per Botha JA in Beaumont v Beaumont 1987 (1) SA 967 (A) at 988 (I) - 989 (A).
641
unregistered domestic partnership.492 The following insertion is consequently
recommended:
(6) A court granting an order contemplated in subsection (3) may, on application by
the registered domestic partner against whom the order is granted, order that
satisfaction of the order be deferred on such conditions, including conditions
relating to the furnishing of security, the payment of interest, the payment of
instalments, and the delivery or transfer of specified assets, as the court regards
just and equitable.
9.3.5.5 A note on the constitutionality of the redistribution competency
A final remark under this topic concerns the possible unconstitutionality that
might be created (or in fact perpetuated) by the granting of a power to divide
property such as that contained in clause 22.
Over the years, various authors have opined that limiting the discretion of a Court
to grant a redistribution order according to the date on which a marriage was
concluded493 may be unconstitutional.v" In this regard Heaton495 opines that
contemporary antenuptial contracts often exclude the accrual system, and,
moreover, that such exclusion often occurs at the instance of the spouse whose
estate is more likely to flourish during the course of the marriage. As a
lP
consequence, the purpose behind the introduction of the judicial power to
redistribute-namely to benefit those to whom the accrual system was not
available prior to 1 November 1984-is frustrated.t'" According to Heaton:497
492
See clause 32(6).
493
See note 473 for a summary of the restrictions imposed by section 7(3) of the Divorce Act 70 of
1979.
494
See for example Visser and Potgieter 1998: 185.
495
2005: 3C26.
496
Also see Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SCA) where Brand JA remarked that
female spouses to post-1984 marriages with complete separation of property "may therefore be
in the same disadvantaged position as before" (at par (21)).
497
2005: 3C26.
642
Viewed in this light, it seems that the differentiation between the two groups purely on
the ground of their wedding date infringes the guarantee of equality before and equal
protection and benefit of the law.
Furthermore, Sinclair and Heaton submit that:498
If the purpose of the adjustive discretion is to avoid injustice, and that was the
justification adduced for its introduction into our legal system, then the date of one's
marriage and the range of the available choices should not constrain the power of the
court. It has to be recognized that the premise of adjustive judicial power is to avoid
grossly inequitable discrepancies in the financial position of the parties on divorce. Such
discrepancies do not depend solely or even fundamentally on the nature of the
matrimonial property system. All that can be said is that some systems, notably
complete separation of property, are more likely than others to produce injustice. If this
is so, then, at the very least, whenever complete separation of property applies, the
court should be able to intervene.
Within the context of the proposed domestic partnership legislation, the South
African Law Reform Commission acknowledges a related cautionary remark
made by Van Schalkwyk to the effect that a deviation from the approach to the
redistribution of assets as contained in the Divorce Act "might be discriminatory"
and that "a general'Ojudicial discretion should be applicable under all
circurnstances.r''" It is a pity that the Commission did not express itself on this
opinion for, should the Domestic Partnerships Bill be enacted, the argument that
section 7(3) of the Divorce Act unfairly discriminates will undoubtedly receive
added impetus. Indeed, it is submitted that the argument of unconstitutionality
would be strengthened by virtue of the facts not only that a Court would be
permitted to order a property division irrespective of the date on which the
partnership was entered into, but also that the Bill would permit this discretion to
498
Sinclair and Heaton 1996: 147 (emphasis added).
499 SALRC2006: 412.
643
be exercised irrespective of the parties' property regime, with the result that it
would exceed the minimum standard proposed by Sinclair and Heaton in the
emphasised portion of the extract quoted above.
Although this argument falls beyond the scope of this study, it is suggested that
Van Schalkwyk's submission to the Commission regarding a general judicial
discretion is to be supported. As far as the opponents of such a discretion are
concerned, their argument that it would lead to legal uncertainty are easily
thwarted by Heaton's counter-contentions that the barrage of litigation initially
predicted in 1984 has never occurred and that a minimal amount of uncertainty is
preferable to unwavering rigidity. SOD The same holds true for the argument that
the introduction of a judicial discretion to redistribute would interfere with the
contractual autonomy of the spouses for, as Sinclair and Heaton'''" point out, this
argument did not prevent the Legislature from interfering with the same in 1984
and again in 1988. As was the case regarding maintenance claims, it is
therefore submitted that the Divorce Act may benefit from cross-pollination with
the proposed domestic partnerships legislation, and the concomitant insertion of
a broader power to divide assets irrespective of property regime or date of
marriage as currently provided for in clause 22 of the 2008 Bill is therefore
proposed.
9.3.5.6 The amended version of clause 22
(1) In the event of a dispute regarding the division of property after a registered
domestic partnership has terminated, or, if the court is not satisfied that an
agreement entered into between the registered partners in consequence of the
termination of a registered domestic partnership other than in circumstances
500
Also see Sinclair and Heaton 1996: 143 et seq.
501
1996: 146.
644
envisioned in section 15502 is just and equitable as far as the division of property
is concerned in the light of the factors listed in subsection (3) of this section, a
Court may, upon application by one or both of the registered domestic partners,
may apply to EOlJrtfor an order the division of to EliviEletheir joint property or
separate property, as the court may deem fit.
(2) Upon an application for the division of joint property, a court must order the
division of that property which it regards just and equitable with due regard to
all relevant factors.
(3) Upon an application for the division of separate property or part of the separate
property, a court may order that the separate property or part thereof of the
other registered domestic partner as the court regard just and equitable, be
transferred to the applicant.
(4) A court considering whether to grant an order contemplated in subsection (2)
and determining the assets or part thereof to be transferred under subsection (3)
must take into account-
(a) the existing means and obligations of the registered domestic partners;
(b) any donation made by one registered domestic partner to the other
during the subsistence of the registered domestic partnership;
(c) the circumstances of the registered domestic partnership;
(d) the vested rights of interested parties in the joint and separate property
of the registered domestic partners;
(e) the existence and terms of a registered domestic partnerships
agreement, if any between the registered domestic partners; and
(f) any other relevant factors.
(5) A court granting an order contemplated in subsection (3) must be satisfied that
it is just and equitable to do so by reason of the fact that the registered
domestic partner in whose favour the order is granted, made direct or indirect
contributions to the maintenance or increase of the separate property or part of
502 This provision envisions a situation where the property has not already been divided as per a
Court order obtained under section 15 but where, for example, an informal agreement was
entered into containing a division which one of the partners alleges not to be just and equitable.
645
the separate property of the other registered domestic partner during the
existence of the registered domestic partnership.
(6) A court granting an order contemplated in subsection (3) may, on application by
the registered domestic partner against whom the order is granted, order that
satisfaction of the order be deferred on such conditions, including conditions
relating to the furnishing of security, the payment of interest, the payment of
instalments, and the delivery or transfer of specified assets, as the court regards
just and equitable.
9.4 Conversion of a registered domestic partnership into a marriage and
vice versa?
One final aspect that needs to be addressed within the context of the registered
domestic partnership is whether the Bill should provide for the conversion or
transformation of a registered domestic partnership into a marriage and vice
versa.
Regarding the possibility of converting a marriage into a registered domestic
partnership, the South African Law Reform Commission opined in 2003 that,
although a jurisdiction such as the Netherlands permits such an option, "this
element of the Dutch model may be criticised for the fact that it is susceptible to
abuse" as the parties may attempt to avoid the more arduous route of divorce.503
The Commission however had no qualms regarding the conversion of a
registered partnership into a marriage. This notwithstanding, while clause 4(5) of
the legislation proposed in the 2003 Discussion Paper suggested that "partners
in a registered partnership may at any time marry each other or enter into a civil
union with each other,,,504both the 2006 Report and the first Civil Union Bill of
2006 are silent on this issue.
503 SALRC2003: 269, reiterated in SALRC2006: 323.
504 SALRC2003: 272 and 273.
646
Although Dutch law and the various options available to Dutch couples regarding
the formalisation of their relationships will be dealt with comprehensively in
Chapter 8, it suffices for now to say that the Dutch Burgerlijk Wetboek currently
provides its citizens with three such possibilities namely civil marriage,
geregistreerd partnerschap (registered partnership) and the cohabitation
contract.P" Barring certain differences in respect of the adoption of children and
the presumption of paternity, all of the consequences of a civil marriage
(including the patrimonial consequencesj'''" apply to a registered partnership. 50?
Until 1 March 2009 Dutch law permitted a marriage to be converted into a
registered partnership (article 1: 77a) and vice versa, but since the repeal of this
provision only the conversion of a registered partnership into a marriage is
currently permitted (article 1: 80g).508 Conversion takes place by the relatively
simple procedure of entering into an akte van omzetting (deed of conversion)
before a state official that is entered into the marriage register. It is submitted
that the fact that, in contrast with Dutch law, the patrimonial consequences of a
marriage and a registered domestic partnership in South Africa stand to follow
diametrically opposite points of departure (the former is by default in community
of property while the opposite is true in the case of the latter) justifies not
permitting such an option in South African law, at least not until the Legislature
has had sufficient opportunity to consider the impact of domestic partnership
legislation and the more comprehensive formal requirements for entering into the
same and for binding outsiders advocated earlier in this Chapter. It is further
submitted that, should the Legislature indeed decide to permit registered partners
to marry one another, the involvement of a notary public in terms similar to those
suggested for entering into a termination agreement (clause 14(1) - (3), as
amended) should at the very least be prescribed in order for such a conversion to
take place.
505 See 3 in Chapter 8 below.
506 Article 1: 80b.
507 Van der Burght 2000: 84.
508 http://wetten.overheid.nl/BWBR0002656/Boek1/TiteI5/ Afdel ing5A/gel digheidsdatum 05-10-
2009 (accessed on 5 October 2009).
647
9.5 Conclusion
In the preceding discussion various aspects pertaining to the termination of the
registered domestic partnership have been considered. These have included the
suggestion that the circumstances under which Court intervention to terminate
the partnership should be re-assessed, that principles of matrimonial property
law should be extended where apposite and that the principles pertaining to
property division and post-termination maintenance should be streamlined. It is
submitted that these modifications are aligned with the approach mandated by a
robust and effective domestic partnership rubric.
10. MISCELLANEOUS AMENDMENTS TO MARRIAGE AND CIVIL
PARTNERSHIP LEGISLATION THAT WILL BE NECESSITATED BY
THE ADVENT OF THE REGISTERED DOMESTIC PARTNERSHIP IN
SOUTHAFRICA
Mention has been made of the need for the amendment to section 7(2) of the
Divorce Act 70 of 1979 in order for it to take cognisance of the fact that an
erstwhile spouse may enter into a registered domestic partnership under the
Domestic Partnerships Bill and the resultant effect hereof on a maintenance
order granted by the Courts.SOg A number of amendments to other Acts will also
be necessitated by the coming into operation of registered domestic partnership
legislation. Now that the legal nature of such partnerships has been explained, it
is appropriate to consider these amendments.
10.1 Interaction with marriage and civil partnership legislation
The amendments now suggested are based on the fact that a registered
domestic partnership is a status-altering relationship in which absolute
509 See 9.3.1 above.
648
monogamy is required and which creates a consortium omnis vitae that is
identical to that created by marriage. As such, it has been seen that clause 4 of
the Bill does not permit a prospective registered domestic partner to be either (i)
married in terms of the Marriage Act 25 of 1961; the Recognition of Customary
Marriages Act 120 of 1998 or the Civil Union Act 17 of 2006 or (ii) to be a party to
a civil partnership concluded in terms of the Civil Union Act 17 of 2006. As a
corollary hereof, it is suggested that these pieces of legislation should in turn
reflect the fact that a marriage or civil partnership may not be entered into while a
party to such marriage or civil partnership is already involved in a registered
domestic partnership. Before the amendments are suggested, it must first be
mentioned that a draft Marriage Amendment Bill appeared in 2009,510clause 13
of which intends-it is submitted correctly-to insert the following provision into
the Marriage Act 25 of 1961:
12A Requirements for solemnization of marriage
(1) A person may only be a spouse in one marriage at any given time.
(2) A foreigner who intends to marry a South African citizen or permanent
resident must-
(a) in the prescribed manner, notify; and
(b) submit to, a letter issued by the relevant authorities in his or
her country of birth as proof of no lawful impediment, the
Director-General 30 days prior to the date of the intended
marriage.
(3) A person in a marriage under this Act may not conclude a civil union
under the Civil Union Act or a marriage under the Recognition of
Customary Marriages Act.
(4) The provisions of subsection (3) shall not apply to a man and a woman
married under the Recognition of Customary Marriages Act who are
510 Government Gazette No. 31864 of 13 February 2009.
649
neither spouses in any other subsisting customary marriage with any
other person.
(5) A prospective spouse who has previously been-
(a) registered as a civil union partner under the Civil Union Act;
(b) married under the Recognition of Customary Marriages Act; or
(c) married under this Act, must present a certified copy of the
divorce order or death certificate of the former civil union
partner or spouse, as the case may be, to the marriage officer as
proof that the previous civil union or marriage has been
terminated.
(6) No marriage officer shall proceed with the solemnization of the
marriage unless in possession of the relevant documentation referred to
in subsection (5).
In the light hereof it is submitted that:
(i) Section 12A of the proposed amendment to the Marriage Act of 1961511
should be enacted as a matter of priority. The enactment of domestic
partnership legislation would however necessitate an amendment to
clause 13 of the Marriage Amendment Bill, 2009 in order to provide for
registered domestic partnerships. The amended clause 13 and the
resultant section 12A of the Marriage Act should therefore read:
12A Requirements for solemnization of marriage
(1) A person may only be a spouse in one marriage at any given time.
(2) A foreigner who intends to marry a South African citizen or permanent
resident must-
(a) in the prescribed manner, notify; and
511 Act 25 of 1961.
650
(b) submit to, a letter issued by the relevant authorities in his or
her country of birth as proof of no lawful impediment, the
Director-General 30 days prior to the date of the intended
marriage.
(3) A person in a marriage under this Act may not conclude a civil union
under the Civil Union Act or a marriage under the Recognition of
Customary Marriages Act or a registered domestic partnership under the
Domestic Partnerships Act.
(4) The provisions of subsection (3) shall not apply to a man and a woman
married under the Recognition of Customary Marriages Act who are
neither spouses in any other subsisting customary marriage with any
other person.
(5) A prospective spouse who has previously been-
(a) registered as a civil union partner under the Civil Union Act;
(b) married under the Recognition of Customary Marriages Act; ef
(c) registered as a domestic partner under the Domestic
Partnerships Act; or
(d) married under this Act, must present a certified copy of the
divorce order, termination certificate or death certificate of the
former civil union partner or spouse, as the case may be, to the
marriage officer as proof that the previous civil union, ef
marriage or registered domestic partnership has been
terminated.
(6) No marriage officer shall proceed with the solemnization of the
marriage unless in possession of the relevant documentation referred to
in subsection (5).
In addition, a definition of "Domestic Partnerships [Act]' should be inserted
into section 1 of the Marriage Act, to read "means the Domestic
Partnerships Act ..."
651
(ii) Section 8 of the Civil Union Act 17 of 2006 should be amended in a similar
vein, to wit:
8 Requirements for solemnisation and registration of civil union
(1) A person may only be a spouse or partner in one marriage or civil
partnership, as the case may be, at any given time.
(2) A person in a civil union may not conclude a marriage under the
Marriage Act or the Customary Marriages Act and may not enter into a
registered domestic partnership under the Domestic Partnerships Act.
(3) A person who is married under the Marriage Act or the Customary
Marriages Act or who is a party to a registered domestic partnership
under the Domestic Partnerships Act may not register a civil union.
(4) A prospective civil union partner who has previously been-
(a) married under the Marriage Act or Customary Marriages Act;
(b) registered as a spouse in a marriage or a partner in a civil
partnership under this Act; or
(c) registered as a domestic partner under the Domestic
Partnerships Act,
must present a certified copy of the divorce order, termination
certificate or death certificate of the former spouse or partner, as the
case may be, to the marriage officer as proof that the previous marriage
or civil union has been terminated.
(5) The marriage officer may not proceed with the solemnisation and
registration of the civil union unless in possession of the relevant
documentation referred to in subsection (4).
(6)
In addition, a definition of "Domestic Partnerships [Act]' must be inserted
into section 1 of the Civil Union Act, to read "means the Domestic
Partnerships Act ..."
652
(iii) The Recognition of Customary Marriages Act 120 of 1998 should be
amended by the insertion of subsection (2A) into section 3 thereof:
No spouse in a customary marriage shall be competent to enter into a
registered domestic partnership under the Domestic Partnerships Act ... during
the subsistence of such customary marriage.
It must be noted that these amendments are predicated on the assumption that
the Civil Union Acf12 will be retained despite the enactment of domestic
partnership legislation (in Chapter 8 it will be suggested that the Civil Union Act is
superfluous and that it should be repealed). Nevertheless, until this occurs, the
abovementioned amendments are crucial for the alignment of domestic
partnerships legislation with the subsisting law of marriage and civil partnership.
10.2 The Wills Act 7 of 1953
This Act is another example of a piece of legislation that should be amended in
view of the status-altering nature and consortium omnis viate attached to the
registered domestic partnership. In its 2003 Discussion Paper, the South African
Law Reform Commission included a provision in its proposed registered
domestic partnership legislation that aimed to have the same legal effect as
section 28 of the Wills Act of 1953 which states that:
If any person dies within three months after his marriage was dissolved by a divorce or
annulment by a competent court and that person executed a will before the date of
such dissolution, that will shall be implemented in the same manner as it would have
been implemented if his previous spouse had died before the date of the dissolution
concerned, unless it appears from the will that the testator intended to benefit his
previous spouse notwithstanding the dissolution of his marriage.
512 17 of 2006.
653
It is submitted that, instead of inserting a similar provision into the Domestic
Partnerships Bill, section 28 of the Wills Act should simply be amended by
inserting references to the termination of registered domestic partnerships where
appropriate, coupled with the insertion of a definition of "registered domestic
partnership" as meaning "a domestic partnership registered according to the
Domestic Partnerships Act ... " into section 1 of the Act. The amended section
28 should read as follows:
28 Effect of divorce or annulment of marriage or termination of registered
domestic partnership on will
If any person dies within three months after his marriage was dissolved by a divorce or
annulment by a competent court or his registered domestic partnership was terminated
in accordance with section 12 of the Domestic Partnerships Act and that person
executed a will before the date of such dissolution, that will shall be implemented in the
same manner as it would have been implemented if his previous spouse or registered
domestic partner had died before the date of the dissolution or termination concerned,
unless it appears from the will that the testator intended to benefit his previous spouse
or registered domestic partner notwithstanding the dissolution of his marriage or
termination of his registered domestic portnersnio?"
10.3 Conclusion
It goes without saying that other pieces of legislation that do not currently provide
for relationships other than marriage will need to be amended if and when
domestic partnership legislation is enacted. The Acts mentioned above serve
merely as examples, as a much broader analysis of South African legislation is
necessary in this regard.514
513
Gender neutral references would obviously be preferred to the continued references to "his" in
the Act. This aspect deserves legislative attention.
514
This process must be differentiated from the calibration of the Bill with legislation that already
provides some form of recognition for non-marital unions that will be conducted in 12 below.
654
11. THE UNREGISTERED DOMESTIC PARTNERSHIP
11.1 Introduction
The scope and ambit of the chapter of the Domestic Partnerships Bill that deals
with unregistered partnerships (chapter 4) and the interplay that exists between
the registered and unregistered domestic partnership were dealt with earlier in
this Chapter.f" In the discussion that follows, the specific provisions of the Bill
that deal with the requirements for and consequences of the recognition of the
unregistered domestic partnership will be discussed.
11.2 Part I of chapter 4: "Property division after termination of
unregistered domestic partnership"
11.2.1 Clause 26 of the Bill
Clause 26 of the Bill bears the title "[c]ourt application" and states that:
(1) One or both unregistered domestic partners may, after the unregistered
domestic partnership has ended through death or separation, apply to a court
for a maintenance order, an intestate succession order or a property division
order.
(2) When deciding on an application for an order under section 26 of this Act, a
court must have regard to all the circumstances of the relationship, including
the following matters as may be relevant in a particular case:
(a) the duration and nature of the relationship;
(b) the nature and extent of common residence;
(c) the degree of financial dependence or interdependence, and any
arrangements for financial support, between the unregistered domestic
partners;
SIS See 1 and 5 above.
655
(d) the ownership, use and acquisition of property;
(e) the degree of mutual commitment to a shared life;
(f) the care and support of children of the unregistered domestic
partnership;
(g) the performance of household duties;
(h) the reputation and public aspects of the relationship; and
(i) the relationship status of the unregistered domestic partners with third
parties.
(3) A finding in respect of any of the matters mentioned in subsection (2), or in
respect of any combination of them, is not essential before a court may make an
order under this Act, and regard may be had to further matters and weight to
be attached to such matters as may seem appropriate in the circumstances of
the case.
(4) A court may not make an order under this Act regarding a relationship of a
person who, at the time of that relationship, was also a spouse in a civil
marriage or a partner in a civil union or a registered domestic partnership with a
third party.
(5) A court may only make an order under this Act regarding a relationship where at
least one of the parties to the relationship is a South African citizen or a
permanent resident.
According to the South African Law Reform Commission:
In accordance with the Commission's recommendation to provide for the fair and
equitable conclusion to the financial consequences of the termination of an
unregistered partnership through a Court procedure, provision must be made to
establish which relationships deserve such protection. For this purpose the Commission
proposes a procedure whereby a Court determines after the end of the relationship
whether the conduct of the parties during the relationship points to an implied
agreement to incur rights and obligations. Where partners have neither married nor
registered their partnership in order to create and obtain legal rights and obligations,
656
the intention of mutual commitment must be inferred from the circumstances of their
eohab·rtati.on. 516
Briefly stated, chapter 4 of the Bill ostensibly envisions the situation whereby, at
the termination of a relationship, either or both persons can apply to a competent
Court, which, on the basis of a list of factors, will determine whether the
relationship qualifies for the protection provided by the Bill. Once this evaluation
has been completed, the merits of the claim itself (such as a claim for property
division or maintenance) will be assessed with a view to making a final order.?"
The procedure therefore in theory comprises two separate enquiries, both of
which should be answered in the affirmative, namely (i) the assessment as to
whether the relationship in which the applicant was involved satisfies a threshold
criterion for recognition, and (ii) if so, the assessment of the merits of the
particular claim sought.
The trouble with clause 26 of the Bill is that it does not convey this message.
Upon reading subsection (2), the first problem that one encounters is the wording
"[w]hen deciding an application under section 26 of this Act." It will be noted that
"section 26" is actually a reference to this very provision (i.e. clause 26). This
immediately causes confusion, as in reality no application is in fact being made in
terms of section 26. Instead, section 26 is merely intended to provide the
threshold criterion, which if satisfied, will then enable the Court to enter into the
second enquiry in terms of which the merits of the claim petitioning the Court to
grant any specific relief under the subsequent provision(s) of the Bill are to be
assessed. In its current form clause 26 does not convey this intention. Instead,
subsection (2) contains no reference to any form of threshold criterion which is
intended to be satisfied with recourse to the factors listed therein. On the
contrary, in its current form clause 26 creates the impression that the factors
listed in subsection (2) are prescribed over and above the factors listed in any
516 SALRC2006: 387 (emphasis added).
517 SALRC2006: 393.
657
other subsequent provision. In other words, it appears as if the factors in
subsection (2) must be considered in conjunction with any factors which may be
prescribed in any subsequent section for the purposes of the particular relief
sought. This state of affairs is both procedurally and jurisprudentially unsound.
The solution to this problem appears to be quite straightforward, at least in
theory: Subsection (2) must contain a direct reference to a threshold criterion and
must clearly state that the factors listed in that subsection are to be considered
as indicators for the purposes of determining whether that criterion is satisfied.
Having said this, the difficult part is to identify a suitable criterion. In this regard a
number of possibilities come to mind. For example, the South African Law
Reform Commission states that the decisive criterion should be whether the
parties "have lived as a couple" from which, once satisfied, it can be assumed
"that there was a mutual commitrnent.Y'" Further options in terms of a threshold
criterion may conceivably include those considered in Chapter 4 for the purposes
of life partnerships, namely permanence, monogamy and interdependence.
Regardless of which of these options is selected, it can be accepted that the list
of indicia to be considered in order to determine whether the threshold criterion
has been satisfied should not constitute a numerus clausus and that no one
indicium should be indispensable. This would imply, for example, that no
minimum duration should be prescribed and that uninterrupted cohabitation
should not be an absolute requirement for recognition. The duration of the
relationship and the extent of cohabitation ought nevertheless to be considered in
terms of determining whether the threshold criterion has been satisfied.519
11.2.2 Identifying the correct threshold criterion
In its current form, clause 26(2) of the Bill compels a Court, when deciding any
application, to consider "all the circumstances of the relationship" as well as a
518
SALRC 2006: 393.
519
See SALRC 2006: 392, 393.
658
number of other matters where they are relevant. The difficulty, however, is that
no indication is provided as to what the point of this exercise is, because, as
stated above, no threshold criterion is prescribed. As seen in the introductory
paragraph, such a criterion is a vital requirement for the purposes of establishing
whether any given relationship is prima facie entitled to the protection provided
by the remainder of the Bill.
It is submitted that the South African Law Reform Commission's proposal in this
regard-namely that the parties must "have lived as a couple" in such a way as
to permit a Court to "[accept] that there was a mutual commitment"52o-is
unsuitable as it is simply too vague: What precisely does "[living] as a couple"
mean and to what exactly are the parties required to have "[mutually] committed"
themselves? In addition, the very notion of a "mutual commitment" is susceptible
to undue emphasis being placed on the sexual fidelity of the parties or,
moreover, may drastically undermine the position of vulnerable (usually female)
partners in what Goldblatt describes as "easy-come, easy-go" relationships which
may have existed for a significant period of time.521 Finally, although the criterion
that the parties must "live together as a couple" is favoured by, for example, the
New Zealand Property (Relationships) Act 1976,522it is submitted that the "living
together" requirement over-accentuates the requirement of cohabitation,523 and
520 SALRC2006: 393.
521 See Goldblatt 2003: 613: "This usually, (but not exclusively) occurs among young people. Often
the women would like the relationship to become more stable or lead to marriage but they do
not have major expectations that the men will see it their way. The women often squirrel away
money and then hide their purchases such as cutlery and crockery. This approach to
cohabitation can exist in relationships of long duration and even where the couple has children
together. A number of domestic workers said that they no longer cohabit as men use them to
get free accommodation, food and money. One woman interviewee, a domestic worker,
described her arrangement as follows: 'We are only keeping each other company. There is not
much in the relationship'."
522 Section 2D. Also see section 4 of the New South Wales Property (Relationships) Act 1984.
523 In Queensland the Discrimination Law Amendment Act 2002 (No. 74, 2002) has inserted an
amended definition of "de facto partner" in a number of statutes (such as the Anti-Discrimination
Act 1991). This amended definition expressly states that mere cohabitation is not sufficient to
conclude that the parties are "living together as a couple on a genuine domestic basis"-see
section 4B of the amended 1991 Act.
659
that the "couple" requirement may be unsuitable in a South African context to the
extent that it implies rnonoqamy.F"
Although not tasked with drafting proposed legislation as such,525it is useful to
compare the eligibility criteria recently recommended by the Law Commission of
England and Wales for cohabitants to qualify for financial relief at the termination
of their relationships. The thrust of the Commission's conclusion is that
cohabitants are persons who are neither married nor are civil partners and "are
living as a couple in a joint household."526 The fact that either person is already
married, involved in a civil partnership or cohabitating with an outsider is
irrelevant, but if sexual activity between the parties is capable of prosecution on
the basis of age or due to the fact that they are relatives, this would preclude
them from approaching a Court for relief under the proposed framework.52?
Although a "checklist" of factors in order to assist in determining whether the
baseline criteria have been met is not prescribed, the Commission provides a list
of "six signposts" which a Court may consider in cases of doubt.528 The duration
of the relationship is irrelevant where children have been born into it, while in
childless relationships a minimum duration of anything between two and five
years has been proposed.529 Depending on the period of duration that is finally
chosen, the Commission recommends that the minimum period should also
apply in cases where children have not been born of both parties (such as in the
case of step- or foster children), provided that that minimum is not longer than
two years. If a longer period were chosen, the Commission recommends that the
Courts be vested with the power to dispense with the duration requirement where
524
See for example Van Schalkwyk's submission in SALRC 2006: 383 as well as the discussion in
5.2.2.1 above, and in 2.1.2.2 in Chapter 4.
525 EWLC2007: 48.
526
EWLC2007: 48.
527 EWLC2007: 63.
528
EWLC 2007: 50. These are: The existence of a joint household (this is in fact an express
requirement for recognition and not merely a "signpost" -see EWLC 2006: 50 at note 21); the
stability of the relationship; the financial arrangements between the parties; the responsibility
for children; the existence of a sexual relationship between the parties; and the extent of public
recognition or acknowledgment thereof.
529 EWLC2007: 57.
660
doing so would be "in the interests of justice."s3o In all cases cohabitation is
essential; and, moreover, must be continuous.F"
Comparing the English proposals with their South African equivalent warrants the
following observations:
(i) The English threshold criterion, namely that the parties have lived together
as a couple is unsuitable in a South African context for the same reasons
as mentioned in respect of the New Zealand Property (Relationships) Act,
1976;
(ii) The English approach towards concurrent relationships differs from that
proposed in clause 26(4) of the South African Bill. The latter proposals do
however correctly reflect the South African Law Reform Commission's
general opposition towards polygamous relationships that do not square
with the condition of monogamy in terms of formalised civil as opposed to
customary relationships;s32
(iii) The English restrictions based on consanguinity and affinity do not appear
in chapter 4 of the South African Bill, with the result that-as seen earlier
in this Chapter-the latter document appears to sanction so-called "care
partnerships." In order for this intention to be conveyed correctly (and
appropriately), it is submitted that clause 26(4) should restrict the ambit of
such partnerships. This aspect has been addressed in 3.2 above; and
(iv) The Domestic Partnerships Bill's lack of a minimum duration requirement
avoids the at times tenuous differentiation in English law between
530 EWLC2007: 59.
531 EWLC2007: 53; 60.
532 See Van Schalkwyk's comments regarding polygamy in the context of customary relationships
(SALRC2006: 383).
661
childless couples and relationships where children are involved.533 This
correctly reflects the fact that the best interests of children are the
paramount consideration and that the existence or otherwise of children in
domestic partnerships should not have a direct bearing on the recognition
of such partnerships inter partes. In addition, the absence of a minimum
duration requirement in the 2008 Bill removes the necessity for a technical
analysis of whether or not the currency of the relationship was ever
interrupted. The South African approach is consequently supported.
This brief comparison shows that despite the lack of an explicit and clearly-
defined threshold criterion, the gist of clause 26 of the Bill allows for a
contextualised and pluralistic approach to South African conditions that is in
keeping with the demands of the domestic partnership rubric, with the result that
a substantial deviation from the approach suggested in England and Wales can
in principle be upheld.
Returning to the attempt to identify a threshold criterion for the South African Bill,
the parameters or criteria of permanence, monogamy and dependence referred
to in Chapter 4 of this study must be evaluated. In this regard the following
remarks are apposite:
• The issue of a so-called "polygamous" unregistered domestic partnership
has been dealt with earlier in this Chapter and need not be revisited at this
point.534
• The criterion of dependence, while theoretically sound, should be
approached with caution. As seen in Chapter 4 a flexible approach was
recommended to this criterion on the basis of "whether an applicant's
lifestyle was 'substantially enhanced' by reason of his or her relationship
533 See EWLC2007: 51- 59.
534 See 5.2.2.1 above.
662
with the other partner.,,535While it cannot be doubted that such a flexible
approach is apposite within the context of unregistered domestic
partnerships, the flexibility of this criterion implies that its reliability as a
sole threshold criterion is questionable. For example, if one considers the
facts in the case of Bezuidenhout NO v ABSA Versekeringsmaatskappy
Bpk 536where no intimate relationship existed between the partners?" and
where the one had maintained the other "almost like a child" due to the
fact that the latter "had no-one to care for her, had no other place to live,
and had no other means of support,,,538there could be no doubt that the
dependent partner would satisfy the criterion of "dependence." However,
if the tables were turned, the elevation of the criterion of dependence to a
threshold criterion would imply that the maintaining partner would be hard-
pressed to prove that an unregistered domestic partnership existed due to
the fact that there was certainly no question of "co-opera[tion] in the
meeting of expenses.,,539 Furthermore, it is doubtful whether the
maintaining partner's lifestyle was "substantially enhanced by reason of
[her] relationship with the other partner.,,540 It is submitted that this
example illustrates why interdependence should not be the sole criterion
but, as was the case with criteria such as cohabitation and mutual
commitment, should nevertheless be relevant for the purpose of
establishing whether any given relationship qualifies for the protection
provided by the Bill.
It is submitted, then, that the only truly reliable threshold criterion that can
be used as a litmus test is whether the relationship is (or was) of a
permanent nature. This criterion is not only an objective question of fact,
535 SALRC2006: 14.
536
Unreported judgment of the Transvaal Provincial Division (now North Gauteng High Court,
Pretoria), case no 40688/2008 delivered on 26 February 2008. The facts of the case are
described in more detail in 3.4.2 of Chapter s.
537 Par (7.2).
538 Par [7.3).
539 SALRC2006: 14.
540
Per SALRC2006: 14 (see the discussion in 2.1.2.2 in Chapter 4).
663
but there is also ample case law in which the permanence (or otherwise)
of the relationship has been regarded as decisive for the purpose of
determining whether it is to be protected.?" (In fact, the preamble to the
Bill also specifically mentions that cognisance is taken of the fact that
"there is no legal recognition or protection for ... couples in permanent
domestic partnerships".)542 In contrast with criteria such as dependence,
cohabitation or mutual commitment, the criterion of permanence is simply
indispensable. It follows, therefore, that it should be the sine qua non for
the recognition of any given relationship under chapter 4 of the Bill.
Proceeding from this conclusion, the next issue is to decide how this threshold
criterion should be accommodated within clause 26 of the Bill. In this regard it is
submitted-as mentioned above-that clause 26 of the Bill should unequivocally
convey the message that it aims to provide the framework within which the first or
preliminary enquiry in the process is to be assessed, namely whether the
relationship is prima facie worthy of protection under the Bill. In order for this to
be achieved, the threshold criterion (i.e. permanence) should simply be linked to
that which is being ascertained, namely whether the relationship qualifies as an
unregistered domestic partnership for the purposes of the Bil1.543In addition, as
seen above, the reference to "section 26" of the Bill needs to be removed so as
to reinforce the notion that an application is being made for relief granted under
the remainder of the Bill. Consequently, it submitted that clause 26(2) should be
amended as follows:
541
See for example National Coalition for Gay and Lesbian Equality v Minister af Home Affairs 2000
(2) SA 1 (CC) at par [86] and [88]; Ripoll-Dausa v Middleton and Others 2005 (3) SA 141 (C) at 154
(C) - (D); Gory v Kolver NO and Others 2006 (5) SA 145 (T). Also see Wood-Bodley 2008(b): 259-
266 and 273: "It is essential to the recognition of a same-sex conjugal relationship to establish
that the parties regarded their relationship as permanent." In proposing the definition of a
domestic partnership as "a permanent, intimate life partnership between two adults" Goldblatt
(2003: 624) also appears to view the requirement of permanence as being essential. (As far as
her insistence on the requirements of monogamy and intimacy are concerned, it has been seen
that these requirements cannot be essential-see 2.1.2.2 in Chapter 4 as well as the main text
above.)
542
Preamble to the draft Domestic Partnerships BiI/, 2008 (emphasis added).
543
See for example section 4(2) of the New South Wales Property (Relationships) Act 1984 where
the list of indicators is geared towards determining whether a "de facto relationship" exists
between the parties (italics added).
664
(2) When deciding an application for an order under section 29 of this Act this
Chapter, a court must, in ascertaining whether the relationship qualifies as a
permanent unregistered domestic partnership for the purposes of this Chapter,
have regard to all the circumstances of the relationship, including the following
matters as may be relevant in a particular case:
(a)
As a final recommendation, it is submitted that in order to avoid confusion, the
heading to Part I of chapter 4 should be amended to read "Application procedure"
instead of "Property division after termination of unregistered domestic
partnership." This is recommended, quite simply, because an order for property
division is not the only order for which an application can be brought under the
Bill, and also because Part III of chapter 4 already bears this title.
11.2.3 The indicators listed in clause 26(2)
With the exception of a direct reference to intimacy, subsection (2)(a) - (i) of the
Bill recasts section 4(2) of the New South Wales Property (Relationships) Act of
1984 and section 20 of the New Zealand Property (Relationships) Act, 1976.544
It also reflects at least five of the "six signposts" mentioned by the Law
Commission of England and Wales.545 It is submitted that the non-exhaustive list
of indicators provided in subsection (2) correctly reflects the domestic partnership
rubric's need for a flexible and nuanced approach that entitles a Court to exercise
an unfettered discretion in determining whether a relationship qualifies for the
protection provided by the Bill. It is however important to reiterate that such a
wide discretion is meaningless unless the indicia are linked to a suitable
threshold criterion.
544
These factors are also substantially similar to those listed in Queensland's Discrimination Law
Amendment Act 2002 (No. 74, 2002) in order to ascertain "whether 2 persons are living together
as a couple on a genuine domestic basis" and hence qualify as de facto partners for the purpose
of a number of statutes such as the Anti-Discrimination Act 1991 (see section 13 of the 2002 Act).
545 See note 528 above.
665
11.2.4 Formal requirements
In 2003 Goldblatt546 opined that no formal requirements should be prescribed in
order for a non-formalised domestic partnership to enjoy legal recognition:
Such formalities are unrealistic in South Africa where many people are illiterate, have
little knowledge of the law and no easy access to it. There is also the issue of unequal
power relations between men and women, which means that women may not be able
to insist on registration. This is because women, rather than men, are likely to want to
use the law to protect their interests within the partnership. Men generally benefit
from the lack of legal coverage and may well create obstacles to registration. While this
may demonstrate unwillingness on the part of men to accept proposed legal
consequences of domestic partnerships, this should not prevent women from obtaining
legal protection.
The fact that chapter 4 of the Bill does not prescribe any formalities for the
recognition of an unregistered domestic partnership is supported, not only for the
reasons mentioned by Goldblatt, but also for the purposes of facilitating the
interplay between the registered and unregistered domestic partnership
throughout the Bill.54?
11.2.5 Prohibited degrees of affinity and consanguinity and so-called "care
partners"
It will be recalled that it was proposed in 3.2 that clause 26 should be amended in
order to recognise non-conjugal "care partnerships" as the only exception to the
rule that unregistered domestic partnerships may not be constituted by
relationships between persons who would be prevented from marrying one
546 2003: 624.
547
It has however been suggested that the Bill should be amended in order to protect partnerships
that have not been registered due to bona fide error or oversight-see 5.2.1.1 above.
666
another on the basis of affinity or consanguinity. To this end it was proposed that
subsections (6)548 and (7)549 be inserted into the clause in question.
11.2.6 Calibration with other legislation
In 5.2.2.1 above the necessity for providing for the possibility of conflict between
the provisions of any potential legislation governing the recognition of purely
religious marriages and a claim under chapter 4 of the Bill was discussed. This
provision is inserted into clause 26 as subsection (8).
It will also be recalled that the final facet of the domestic partnership rubric
mandates the calibration of the modified Bill (as the legislative substructure of the
domestic partnership in South Africa) with attendant legislation impacting on such
partnerships in existing or prospective legislation. This facet of the rubric will be
discussed in the next paragraph of this Chapter. For now it will suffice to say that
certain of these pieces of legislation are problematic in the sense that while they
specifically refer to life or domestic partnerships, they prescribe no criteria for
establishing whether or not such a partnership exists for the purposes of that
specific Act. In this regard it is submitted that a cross-reference to [section] 26 of
the Domestic Partnerships [Act] may provide a solution to this problem. While
further detail regarding this issue will be provided in 12.1 and 12.2.5 below, it is
suggested for now that a subsection 9 that provides for such a cross-reference
should be inserted into clause 26 of the Bill.
548 "[A] Court may not make an order under this Chapter regarding a relationship between two
persons who would be prohibited by law from concluding a marriage on the basis of
consanguinity or affinity, unless that relationship is a non-conjugal relationship in terms of which
one person provided the other with domestic support and/or personal care."
549 "[A] Court may not make an order under this Chapter regarding a relationship between two
persons where one of them provided the other with domestic support and/or personal care:
(a) for fee or reward, or
(b) on behalf of another person or an organisation (including a government or
government agency, a body corporate or a charitable or benevolent
organisation)."
667
11.2.7 Conclusion: The recommended amended version of clause 26
(1) One or both unregistered domestic partners may, after the unregistered
domestic partnership has ended through death or separation, apply to a court
for a maintenance order, an intestate succession order or a property division
order.
(2) When deciding an application for an order under this Chapter, a court must, in
ascertaining whether the relationship qualifies as a permanent unregistered
domestic partnership for the purposes of this Chapter, have regard to all the
circumstances of the relationship, including the following matters as may be
relevant in a particular case:
(a) the duration and nature of the relationship;
(b) the nature and extent of common residence;
(c) the degree of financial dependence or interdependence, and any
arrangements for financial support, between the unregistered domestic
partners;
(d) the ownership, use and acquisition of property;
(e) the degree of mutual commitment to a shared life;
(f) the care and support of children of the unregistered domestic
partnership;
(g) the performance of household duties;
(h) the reputation and public aspects of the relationship; and
(i) the relationship status of the unregistered domestic partners with third
parties.
(3) A finding in respect of any of the matters mentioned in subsection (2), or in
respect of any combination of them, is not essential before a court may make an
order under this Act, and regard may be had to further matters and weight to
be attached to such matters as may seem appropriate in the circumstances of
the case.
(4) A court may not make an order under this Act regarding a relationship of a
person who, at the time of that relationship, was also a spouse in a civil
668
marriage or a partner in a civil tlflkffipartnership or a registered domestic
partnership with a third party.
(5) A court may only make an order under this Act regarding a relationship where at
least one of the parties to the relationship is a South African citizen or a
permanent resident.
(6) {A] Court may not make an order under this Chapter regarding a relationship
between two persons who would be prohibited by law from concluding a
marriage on the basis of consanguinity or affinity, unless that relationship is a
non-conjugal relationship in terms of which one person provided the other with
domestic support and/or personal care.
(7) {A] Court may not make an order under this Chapter regarding a relationship
between two persons where one of them provided the other with domestic
support and/or personal care:
(a) for fee or reward, or
(b) on behalf of another person or an organisation (including a government
or government agency, a body corporate or a charitable or benevolent
organisation).
(8) In the event of a conflict between the provisions of this Chapter and a provision
in any Act that has been promulgated with the specific purpose of recognising
the validity at requirements for; regulation, proprietary consequences and
termination of; or status and capacity of spouses to any marriage that has been
concluded in accordance with a system of religious law subject to specified
procedures, the provisions of that Act shall prevail in respect of a claim instituted
by such a spouse.550
(9) [This subsection will be the cross-referencing provision dealt with in 12.1 and
12.2.5 below].
550 See 5.2.2.1 above.
669
11.3 Part II of chapter 4: "Maintenance after termination of an
unregistered domestic partnership"
11.3.1 Introduction
The position regarding post-termination maintenance of unregistered domestic
partners stands to be regulated by clauses 27 - 30 of the Bill. The general
principle is contained in clause 27 which states that such partners "are not liable
to maintain one another and neither partner is entitled to claim maintenance from
the other, except as provided for in this ACt.,,551This clause was, according to
the South African Law Reform Commission, included as a consequence of the
fact that the creation of an ex lege duty of support (such as the one attached to
marriage by the common law and the one proposed in the Bill for registered
domestic partners) was impossible in view of the decision to opt for a judicial
discretion (ex post facto) model as opposed to one in which de facto recognition
was provided during the existence of a relationship that exhibited certain pre-
determined characteristics.552 An outflow of this model would be that "limited"
rights to post-termination maintenance and succession could be provided by the
relevant legislation.553 Proceeding from this premise and its manifestation in
clause 27, the provisions regulating post-termination maintenance will be
analysed in the paragraphs that follow.
11.3.2 Maintenance after separation
11.3.2.1 Introduction
According to clause 28(1) of the Bill an application may be made to Court by
either or both unregistered domestic partners for a maintenance award that is
"just and equitable" in terms of which maintenance will be payable by one partner
SSl
See section 26 of the New South Wales Property (Relationships) Act 1984.
SS2
SALRC2006: 397.
SS3
SALRC2006: 397, 398.
670
to the other "for a specific period" after the partnership has been terminated by
separation. One question that immediately springs to mind is what the reason is
for the differentiation between the registered and unregistered models as far as
the duration of the maintenance award is concerned. (In the case of a registered
domestic partnership, a Court is not empowered to grant an order for
maintenance that extends beyond the death or remarriage of the entitled partner,
or beyond the date on which he or she enters into a registered domestic or civil
partnership.r'" As it stands, clause 28 grants a wider discretion than that
provided by both the Divorce Acf55 and by clause 18 by potentially permitting a
Court to grant an order that extends beyond these events. This state of affairs
cannot be condoned, as there is no justification for extending the duration of a
maintenance order beyond the date upon which the entitled person enters into a
relationship with someone else that creates an ex lege duty of support between
the entitled person and her new spouse or partner. It is therefore submitted that
the Court's discretion in subsection (1) should be curtailed by providing that an
order granted under that provision will automatically lapse when the partner in
whose favour the order is given dies, remarries or enters into a registered
domestic or civil partnership. This amendment is illustrated below.
A second difficulty that appears from subsection (1) in its current guise is that no
provision is made for the fact that the parties may have entered into an
agreement regarding maintenance which one of them may deem to be unjust or
inequitable with the result that he or she may wish to approach the Court for
relief. While the correct forum for an aggrieved party to revisit the validity or
enforceability of such an agreement may strictu sensu be the Maintenance Court,
it is submitted that the novel and unique considerations which apply in the case
of unregistered domestic partnerships coupled with the tailor-made
contextualised criteria listed in clause 28 justify an application under this piece of
554 Clause 18(1).
555 70 of 1979 (section 7(2)).
671
legislation as opposed to the Maintenance Act 99 of 1998.556 To this end it is
submitted that clause 28(1) should be modified in order to cater for this
eventuality. This can be achieved by modifying the first part of subsection (1) as
follows:
In the absence of a maintenance agreement, or, if the court is not satisfied that the
maintenance agreement entered into between the unregistered domestic partners is just
and equitable, a court may, upon application by one or both of them after their
separation, make an order which is just and equitable in respect of the payment of
maintenance ...
The third and possibly most glaring problem with the way in which the Bill
attempts to regulate post-termination maintenance is the fact that it disregards
the principle identified in the "contextualised choice model" in respect of all
needs-based claims (such as a claim for maintenance) in terms of which the
existence of a reciprocal duty of support during the existence of a relationship
has been found to be a sine qua non for the extension thereof beyond its
termination.55? To illustrate: Clause 27 expressly states that unregistered
domestic partners "are not liable to maintain one another" or to claim
maintenance from one another. From this statement the logical assumption
flows-as stated above-that no ex lege duty is created between unregistered
domestic partners; a fact which stands to reason when it is considered that no
formal public commitment has ever been undertaken by the parties. However, it
has also been emphasised throughout this study that parties to non-formalised
relationships are perfectly capable of contractually binding themselves to support
one another, and that the existence of such mutual obligations has often been
inferred on the facts of a particular case.558 Moreover, it has been seen that an
SS6 In the alternative, the Maintenance Act may need to be amended in order to provide for such a
situation, with a possible cross-reference to clause 28.
SS7 See 3.3.2.2 in Chapter 5 as well as 7.3.4.2 above.
SS8 See for example Gory v Kolver NO and Others 2006 (5) SA 145 (T) at par [18]; Satchwell v
President of the Republic of South Africa 2002 (6) SA 1 (CC)at par [25]; Du Plessis v Road Accident
Fund 2004 (1) SA 359 (SCA) at par [11] - [16]. As was pointed out in Chapter 5, it is submitted
672
ex contractu duty of support is as robust and capable of enforcement as its ex
lege counterpart.v" However, when a situation arises where neither an ex lege
nor a contractually-created duty to maintain is present during the existence of a
relationship, it would be impossible to lodge a claim that is essentially based on
that duty after its termination. The conclusion, therefore, is that while the South
African Law Reform Commission has-with respect correctly-decided not to
impose an ex lege duty of support on unregistered domestic partners, such
partners must have undertaken contractual mutual support obligations during the
existence of their relationships in order for any need-based claim to be instituted
after their termination. Consequently, it is submitted that the sine qua non for a
post-termination maintenance claim under chapter 4 of the Bill is that mutual
support obligations must either expressly or by implication have been undertaken
during the existence of the relationship. This principle will apply irrespective of
whether the unregistered domestic partnership is terminated inter vivos or by
death. It is imperative for both clauses 28 and 29 of the Bill to be amended to
reflect this fact.
In the light of the preceding conclusions, it is also recommended that clause 27
of the Bill should be amended so as to reinforce the fact that contractual support
obligations are permissible and enforceable between the parties involved. The
amended form of clause 27 is included below.
11.3.2.2 The effect of a purely religious marriage on a maintenance order
It has been emphasised throughout this Chapter that the parties to a "marriage"
that has never purported to constitute a valid civil or customary marriage may
qualify as unregistered domestic partners provided that they comply with chapter
4 of the Bill.56o By the same token, it has also been seen that clause 26(4) of the
that the Courts erred by not inferring the existence of mutual support obligations on the facts in
Volks NO v Robinson 2005 (5) BCLR446 (CC).
559 See 3.3.1.2 in Chapter 5 above.
560 See 5.2.2.1 above.
673
Bill does not proscribe polygynous purely religious marriages provided that no
person involved is a party to a subsisting civil marriage, civil partnership or
registered domestic partnership with a third party.561 In the discussion of the
latter category of persons it was however specifically mentioned that the Bill
would need to be amended in order for this possibility to take full effect. Clause
28(2)(h) of the Bill provides an example of a provision which in effect hamstrings
the recognition of polygynous unregistered domestic partnerships. The provision
in question states the following:
(2) When deciding whether to order the payment of maintenance and the amount
and nature of such maintenance, the court must have regard to the following
matters:
(a)
(h) the relevant circumstances of another unregistered domestic
partnership or customary marriage of one or both unregistered
domestic partners, where applicable, insofar as they are connected to
the existence and circumstances of the unregistered domestic
partnership, and any other factor which, in the opinion of the court,
should be taken into account.562
It will be seen that the provision in question only refers to one type of marriage
that is potentially polygynous, namely the customary marriage. However, it is
important to note that customary marriages are not the only marriages that often
assume a polygynous form, but that certain religious systems also sanction the
conclusion of such marriages. The observation attributed to Van Schalkwyk563to
the effect that "although the legal recognition of a polygamous relationship would
be contra the nature of a civil marriage it is not contra a customary marriage" is
therefore equally applicable within the context of purely religious marriages.
While it is undoubtedly true that polygynous purely religious marriages are, unlike
561
See 5.2.2.1 above (example (iii) in discussion of "polygamous" domestic partnerships).
562
Emphasis added.
563
See SALRC2006: 383 (italics added).
674
customary marriages, not valid marriages, there consequently appears to be no
reason why the existence of a purely religious marriage cannot be taken into
account alongside the existence of an unregistered domestic partnership. In
other words, if X and Y are parties to a Hindu marriage that has never been
solemnised in accordance with applicable South African marriage legislation, and
during the existence of this marriage X enters into an unregistered domestic
partnership with Z, there appears to be no reason why the existence of this
marriage should not be taken into account when Z approaches a Court for relief
at the termination of her relationship with X. As the Bill stands, this will not
appear to be the case, unless, of course, it could be argued that the religious
marriage between X and Y qualifies as an "another unregistered domestic
partnership" of which the relevant provision permits cognisance to be taken
alongside the unregistered domestic partnership that exists between X and Z. As
this is a matter of specutation'ï" it is submitted that the safest route to take would
be to amend clause 28(2)(h) by inserting the words "or marriage that has been
concluded in accordance with a system of religious law subject to specified
procedures" after the words "customary marriage."
Finally, it is important to reiterate the fact that clause 28(2)(g) specifically permits
"the relevant circumstances of another unregistered domestic partnership" to be
taken into account. The significance hereof in terms of permitting "polygynous"
unregistered domestic partnerships that are not culture-based has already been
referred to in 5.2.2.1 above, and will again become apparent in the paragraphs
that follow.
11.3.2.3 Conclusion
The discussion above highlights, first, that the discretion granted to a Court to
grant a maintenance order in terms of clause 28(1) should be limited and that
provision should be made for a maintenance agreement entered into between
564 See the discussion in 5.2.2.1 above.
675
the partners. Furthermore, it is imperative that clause 28 should reflect the fact
that the existence of a reciprocal duty of support during the existence of a
relationship is a sine qua non for the extension thereof beyond its termination,
and that clause 27 should also be amended in order to reflect the significance of
a contractual duty of support. Finally, it was concluded that a Court should
specifically be permitted to take cognisance of the existence of purely religious
marriages when granting maintenance orders. Bearing the above in mind, it is
submitted that clauses 27 and 28 should be amended as follows:
27. Maintenance
Unregistered domestic partners are not by operation of law liable to maintain one
another and neither party is entitled to claim maintenance from the other, except as
provided for in this Act or by agreement between such partners.
28. Application for maintenance order after separation
(1) In the absence of a maintenance agreement, or, if the court is not
satisfied that the maintenance agreement entered into between the
unregistered domestic partners is just and equitable, a court may, upon
application by one or both of them after their separation, and provided
that the Court is satisfied that a reciprocal duty of support existed
between the unregistered domestic partners, make an order which is
just and equitable in respect of the payment of maintenance by one
unregistered domestic partner to the other for a specified period.
(lA) An order granted under subsection (1) will automatically lapse when the
partner in whose favour the order is given dies, remarries or enters into
a registered domestic or civil partnership.
(2) When deciding whether to order the payment of maintenance and the
amount and nature of such maintenance, the court must have regard to
the following matters:
(a) the age of the unregistered domestic partners;
676
(b) the duration of the unregistered domestic partnership;
(c) the standard of living of the unregistered domestic partners
prior to separation;
(d) the ability of the applicant to support himself or herself
adequately in view of him or her having custody of a minor child
of the unregistered domestic partnership;
(e) the respective contributions of each unregistered domestic
partner to the unregistered domestic partnership;
(f) the existing and prospective means of each unregistered
domestic partner;
(g) the respective earning capacities, future financial needs and
obligations of each unregistered domestic partner; and
(h) the relevant circumstances of another-
(i) unregistered domestic partnership; or
(ii) customary marriage; or
(iii) marriage that has been concluded in accordance with a
system of religious law subject to specified procedures;
of one or both unregistered domestic partners, where
applicable, insofar as they are connected to the existence and
circumstances of the unregistered domestic partnership; and
(i) any other factor which, in the opinion of the Court, should be
taken into account.
11.3.3 Maintenance after the death of an unregistered domestic partner
The possibility of a surviving unregistered domestic partner instituting a claim for
maintenance against the estate of his or her deceased partner is regulated by
clauses 29 and 30 of the Bill. These provisions state the following:
677
29. Application for a maintenance order after death of unregistered domestic
partner
(1) A surviving unregistered domestic partner may after the death of the
other unregistered domestic partner, bring an application to a court for
an order for the provision of his or her reasonable maintenance needs
from the estate of the deceased until his or her death, remarriage or
registration of another registered domestic partnership, insofar as he or
she is not able to provide therefore from his or her own means and
earnings.
(2) The surviving unregistered domestic partner will not, in respect of a
claim for maintenance, have a right of recourse against any person to
whom money or property has been paid, delivered or transferred in
terms of section 34(11) or 35(12) of the Administration of Estates Act, or
pursuant to an instruction of the Master in terms of section 18(3) or
25(I)(a)(ii) of that Act.
(3) The provisions of the Administration of Estates Act apply with the
changes required by the context to a claim for maintenance of a
surviving unregistered domestic partner, subject to the following:
(a) the claim for maintenance of the surviving unregistered
domestic partner must have the same order of preference in
respect of other claims against the estate of the deceased as a
claim for maintenance of a dependent child of the deceased has
or would have against the estate if there were such a claim;
(b) in the event of competing claims of the surviving unregistered
domestic partner and that of a dependent child of the
deceased, the court may make an order that it regards just and
equitable with reference to all the relevant circumstances of the
unregistered domestic partnership;
(c) in the event of competing claims of an unregistered domestic
partner and that of a surviving customary spouse, the court
must make an order that it regards just and equitable with
reference to the existence and circumstances of multiple
678
relationships between the deceased and an unregistered
domestic partner, and between the deceased and a customary
spouse;
(d) in the event of a conflict between the interests of the surviving
unregistered domestic partner in his or her capacity as claimant
against the estate of the deceased and the interests in his or her
capacity as guardian of a minor dependent child or children of
the unregistered domestic partnership, the court must make an
order that it regards just and equitable with reference to all the
relevant circumstances of the unregistered domestic
partnership; and
(e) the executor of the estate of a deceased spouse has the power
to enter into an agreement with the surviving unregistered
domestic partner and the heirs and legatees having an interest
in the agreement, including the creation of a trust, and in terms
of the agreement to transfer assets of the deceased estate, or a
right in the assets, to the surviving unregistered domestic
partner, or to impose an obligation on an heir or legatee, in
settlement of the claim of the surviving unregistered partner or
part thereof.
30. Determination of reasonable maintenance needs of surviving unregistered
domestic partner
When determining the reasonable maintenance needs of the surviving
unregistered domestic partner, the court may consider-
(a) the amount in the estate of the deceased available for distribution to
heirs and legatees;
(b) the existing and expected means, earning capacity, financial needs and
obligations of the surviving unregistered domestic partner;
(c) the standard of living of the surviving unregistered domestic partner
during the subsistence of the unregistered domestic partnership and his
or her age at the time of death of the deceased;
679
(d) the existence and circumstances of multiple relationships between the
deceased and an unregistered domestic partner, and between the
deceased and a customary spouse; and
(e) any other factor that it regards relevant.
A perusal of clauses 29 and 30 reveals the following areas of concern:
(1) The same problem as that identified in the discussion of clause 28
appears in clause 29 regarding the principle identified in the
"contextualised choice model" in respect of a need-based claim in that the
clause nowhere requires a reciprocal duty of support to have existed
during the existence of the unregistered domestic partnership. This
lacuna requires urgent attention for the same reasons as those proffered
in the discussion of clause 28.
(2) It will be recalled that clause 28(2)(h) made specific provision for a Court
to consider the fact of "another unregistered domestic partnership" that co-
existed with the one in which the applicant was involved. No similar
provision is found in clause 29(3). This should be remedied.
(3) As is the case with clause 28(2)(h), clauses 29(3) and 30(d) present a
similar problem in that they only permit a Court to consider polygynous
relationships that arise as a result of customary marriages. No provision
is made for a Court to consider the effect of polygyny where the ratio
therefore is based on the existence of a purely religious marriage that is
concluded in terms of a recognised religion. This state of affairs also
requires urgent attention as it is quite conceivable that an applicant in
terms of clause 29 may be involved in an unregistered domestic
partnership that exists alongside such a purely religious marriage.
680
Bearing these observations in mind, it is suggested that the relevant provisions in
clauses 29 and 30 ought to be revised as follows:
29. Application for a maintenance order after death of unregistered domestic
partner
(1) A surviving unregistered domestic partner may after the death of the
other unregistered domestic partner, bring an application to a court for
an order for the provision of his or her reasonable maintenance needs
from the estate of the deceased until his or her death, remarriage or
registration of another registered domestic partnership, insofar as he or
she is not able to provide therefore from his or her own means and
earnings: Provided that a Court is satisfied that a reciprocal duty of
support existed between the unregistered domestic partners.
(2)
(3) The provisions of the Administration of Estates Act apply with the
changes required by the context to a claim for maintenance of a
surviving unregistered domestic partner, subject to the following:
(a)
(b)
(c) in the event of competing claims of an unregistered domestic
partner and that of-
(i) a surviving customary spouse; or
(ii) a spouse to a marriage that has been concluded in
accordance with a system of religious law subject to
specified procedures, or
(iii) another unregistered domestic partner
the court must make an order that it regards just and equitable
with reference to the existence and circumstances of such
multiple relationships between the EleceaseEl anEl an
~nregistereEl Elomestic l3artner, anEl between the EleceaseElanEl
a c~stomary spo~se
(d)
681
30. Determination of reasonable maintenance needs of surviving unregistered
domestic partner
When determining the reasonable maintenance needs of the surviving
unregistered domestic partner, the court may consider-
(a)
(d) the existence and circumstances of multiple relationships between the
deceased and an unregistered domestic partner, and between the
deceased and a customary spouse or a spouse to a marriage that has
been concluded in accordance with a system of religious law subject to
specified procedures, or another unregistered domestic partnership; and
(e)
11.4 Intestate succession
According to clause 31:
(1) Where an unregistered domestic partner dies intestate, his or her surviving
unregistered domestic partner may bring an application to court, subject to
subsections (2) and (3), for an order that he or she may inherit the intestate
estate.
(2) Where the deceased is survived by an unregistered domestic partner as well as
a descendant, such unregistered domestic partner inherits a child's share of the
intestate estate or so much of the intestate estate as does not exceed in value
the amount fixed from time to time by the Cabinet member responsible for the
administration of Justice by notice in the Gazette, whichever is the greater, as
provided for in the Intestate Succession Act.
(3) In the event of a dispute between a surviving unregistered domestic partner and
the customary spouse of a deceased partner regarding the benefits to be
awarded, a court may, upon application by either the unregistered domestic
partner or the customary spouse, make an order that it regards just and
equitable with reference to all the relevant circumstances of both relationships.
682
By not providing for the merits of a claim for intestate succession to be assessed
according to any defined criterion, the structure of this clause indicates that it is
intended to operate on the sole basis of the Court's discretion as exercised in
clause 26(2) and (3). In other words, it creates the impression that an
unregistered domestic partner who satisfies the threshold criteria mentioned in
the latter provision will automatically be entitled to inherit either the entire
intestate estate (subsection (1)), a child's share (subsection (2)) or a portion of
the estate which the Court deems "just and equitable" after considering the
competing claims of a customary spouse (subsection (3)). This approach cannot
be supported. In view of the fact that a claim for intestate succession can in
principle be regarded as a need-based claim,565the first observation that needs
to be made regarding this clause is that it ignores the fact that a reciprocal duty
of support is, in accordance with the "contextualised choice model" a sine qua
non in order for such a claim to succeed.
Secondly, the failure of this clause to take purely religious marriages and multiple
unregistered domestic partnerships into account is, for precisely the same
reasons as those mentioned in respect of maintenance claims in 11.3 above, an
oversight that requires urgent attention.
Furthermore, cognisance must be taken of the fact that the recent promulgation
of the Reform of Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009 has introduced a new dimension to all intestate
succession claims that involve customary unions. This Act-which was assented
to by the President on 19 April 2009 but is yet to come into operation-arises as
a consequence of the Constitutional Court's decision in Bhe and Others v
Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus
Curiae)566in which it was in essence held that the principle of male primogeniture
was unconstitutional and that the deceased estates of customary spouses would
565 See 3.4.1 in Chapter 5.
566 2005 (1) SA 580 (CC).
683
henceforth devolve according to the Intestate Succession Act 81 of 1987 (as
amended by the Court order in casu).567 In terms of Act 11 of 2009 provision is
made for women who had entered into a union with the deceased for the
purposes of providing children for his spouse's house568(or, for the deceased's
house in the case of "woman-to-woman marriages,,)569 to be regarded as
descendants in terms of the Intestate Succession Act.57o Where the union
between such a woman and the deceased does not qualify as a customary
marriage in terms of the Recognition of Customary Marriages Act,571 an
interesting situation arises in that such a woman could potentially qualify as an
unregistered domestic partner due to the fact that clause 26(4) of the 2008 Bill
does not exclude such a union from the ambit of the Bill. This may lead to a
potential conflict between the provisions of clause 31 of the Bill and Act 11 of
2009 in that, for example, in terms of the former a Court will be required to make
a "just and equitable" order regarding the benefits to be distributed,572 while in
terms of the latter such a woman is entitled to qualify as a descendant outright.573
In order to circumvent this problem, it is submitted that a provision should be
inserted into clause 31 in terms of which, in the event of a conflict such as the
one described above arising, the provisions of Act 11 of 2009 should prevail in
view of the fact that the latter Act has specifically been drafted with the aim of
regulating the customary law of succession.
A final issue to consider is whether partners involved in a non-conjugal "care
partnership" should be permitted to inherit intestate from one another. In this
regard it is important to note that the legislation proposed in the 2003 Discussion
567 See par [136] of the judgment.
568 Referred to as the seant/o custom or the marrying of a "seed raiser" (the latter commonly
occurring amongst the South Eastern Nguni). These unions are entered into in the event of a
wife dying or being unable to bear children and such a woman becomes a substitute wife-
Olivier et 0/1995: 34 and 166 respectively.
569 See in generalOomen 2000: 274 et seq for a discussion of these so-called "woman-to-woman
marriages."
570 Section 2(2)(b) and (c), cfsection 3(1) where such a person is regarded as a "spouse."
571 120 of 1998.
572 See clause 31(3) of the Domestic Partnerships Bill, 2008.
573 Sections 2(b) and (c).
684
Paper limited the partners entitled to inherit intestate to intimate partners only.574
A similar restriction is imposed by section 61B of the New South Wales Probate
and Administration Act 1898 in terms of which only a de facto spouse (a term that
corresponds in meaning with a "de facto partner" under the New South Wales
Property (Relationships) Act 1984) is permitted to do the same. The law of New
Zealand adopts an approach in terms of which a surviving de facto partner or
spouse may under certain circumstances elect whether to apply for a division of
property or to inherit in accordance with a will or the law of intestate succession.
In this regard section 61 of that country's Property (Relationships) Act 1976
states that:
Surviving spouse or partner may choose option
(1) If 1 of the spouses or partners has died (except in a situation described
in section 100(1) [that is where proceedings are commenced while both
parties are alive but where one of them dies in the interim]), the
surviving spouse or partner may choose option A or option B.
(2) Option A is to elect to make an application under this Act for a division
of relationship property.
(3) Option B is as follows:
574 SALRC2003: 326 (clause 22). This provision was based on the now-repealed Swedish Cohabitees
(Joint Homes) Act of 1987. The new Act (the Cohabitees Act 2003: 376) automatically applies to
all cohabitants who (regardless of sex) are both at least 18 years of age who are not already
married or involved in a registered partnership and who satisfy the following criteria (see section
1 of the Act): (i) They must live together on a permanent basis; (ii) they must live "as a couple"
(which implies a conjugal relationship) and (iii) and they must share a joint household. According
to the Swedish Ministry of Justice (2003: 2), these criteria imply that, "for example, two siblings
living together may not be considered to be cohabitees." Despite the fact of its de facto
application, Swedish cohabitees have no right to inherit from one another-Swedish Ministry of
Justice 2003: 1. This approach differs from the approach in the Canadian province of British
Columbia which, like the position in Sweden, also adheres to the de facto (or ascription) model in
terms of which unmarried couples are automatically protected during the existence of their
relationship if they comply with certain minimum criteria. In terms of section lof this province's
Estate Administration Act of 1996 [RSBC 1996: Chapter 122] (as amended by section 4 of the
Definition of Spouse Amendment Act of 2000) a "spouse" includes a "common law spouse" which
in turn includes either (i) a marriage that is "valid by common law" although not being a "legal
marriage" or (ii) a "marriage-like relationship" in which two persons (regardless of gender) have
cohabited for at least two years prior to the deceased's death. By virtue hereof a person who
qualifies as a "spouse" is fully entitled to inherit as an intestate heir under Part 10 of the Act
("Distribution of Intestate Estate").
685
(a) to elect not to make an application under this Act for a division
of the relationship property; and
(b) if the surviving spouse or partner is a beneficiary under the will
of the deceased spouse or partner, to receive that property; and
(c) if the surviving spouse or partner is entitled to a beneficial
interest on the intestacy or partial intestacy of the deceased
spouse or partner, to receive that interest.
It is noteworthy of mentioning that the New Zealand Act only provides for
conjugal relationships and not for care partners to qualify as de facto partners.575
Furthermore, as seen above, the election between property division and intestate
succession does not only apply to de facto partners, but applies equally to
married persons. Viewed in this light, it is submitted that although the approach in
New Zealand makes sense, permitting a similar type of election within the
context of unregistered domestic partnerships in South Africa may be
problematic as it would differentiate between the position of spouses and
registered domestic partners on the one hand and such unregistered partners on
the other; a situation which might open the Bill to an unnecessary constitutional
challenge. It would therefore prima facie be more likely for the position in New
South Wales (in terms of which only survivors to conjugal partnerships are
permitted to inherit intestate) to be carried over into South African law. It must
however be remembered that the position in New South Wales differs from that
which is proposed for South African law by this study in the sense that the former
does not insist on the existence of a reciprocal duty of support before permitting
an unmarried partner to inherit intestate. In the light of what has been said
regarding need-based claims above, it is submitted that this is a crucial reason
for justifying a deviation from the position in the Australian Act. Nevertheless,
before a final opinion can be expressed on this issue in as far as the draft
Domestic Partnerships Bill is concerned, it is important to take note of recent
case law pertaining to the intestate succession rights of life partners in the form
575
See the definition of "de facto relationship" (italics added) in section 20 of the 1976 Act.
686
of the now well-known case of Gory v Kolver NO.576 It will be recalled that in this
case two criteria were set for the surviving same-sex life partner to inherit
intestate, namely (i) that the partnership was required to be permanent; and (ii)
that reciprocal duties of support were required to have been undertaken during
the existence of the relationship.F" Although it is conceded that the relationship
in casu dealt with a conjugal relationship, it is noteworthy that the Court did not
deem it necessary to attach a condition of intimacy to the unmarried surviving
partner's right to inherit. Furthermore, it has been noted earlier in this Chapter
that the Constitutional Court has expressly mentioned the fact that it is "entirely
within their protected sphere of freedom and privacy" for a couple to elect not to
be sexually intimate.578
It is also useful to consider the opinion expressed by Wood-Bodley to the effect
that
[slurelv the reason for a 'spouse' inheriting on intestacy is because the spouse is now
regarded as close family of the deceased, equivalent to a close blood relation, not
because of the existence of duties of support ...
Regarding this opinion, it has been opined in Chapter 5 that Wood-Bodley's
sentiments fail to take cognisance of the fact that it is "the existence of a
reciprocal duty of support in a permanent relationship [that] in fact establishes the
fact that the survivor of such a non-formalised relationship is 'now regarded as
close family of the deceased' thereby justifying his or her claim" to inherit
intestate.579 In the light hereof it surely cannot be contended that conjugality
alone could serve to justify a deviation from this principle.
576
2007 (4) SA 97 (CC).
577 Par [19].
578
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at
par [52].
579 Quote taken from 3.4.1.2 in Chapter 5.
687
Applying this rationale to the position proposed for the South African Bill leads to
the inevitable conclusion that provided a relationship satisfies the threshold
criterion of permanence and the condition of non-conjugality regarding
relationships that are in the prohibited degrees (see the amendments proposed
to clause 26 in 11.2) and, in addition, satisfies the further sine qua non for any
need-based claim under the "contextualised choice model" namely that a
reciprocal duty of support must have existed, it is simply irrelevant whether the
relationship was a care partnership or otherwise. It is therefore submitted that a
care partner who satisfies these conditions should in principle be permitted to
inherit intestate in the same way as a partner to a conjugal relationship would.
A final quaere must however be mentioned: Bearing the structure of subsections
(1) - (3) of clause 31 in mind and the fact that it permits the interests of
polygynous relationships to be taken into account, would it be justifiable to
require that the interests of another potential intestate heir (for example the
parents or siblings of the deceased) must be taken into account in determining
the quantum of an intestate claim? In other words, should subsection (3) of
clause 31 be extended so as to permit a Court to make an order that is "just and
equitable" where the claims of an unregistered (non-conjugal) domestic partner
compete with the claims of a blood relation of the deceased who would, but for
such partner, be entitled to inherit (a portion of) the deceased estate? It is
submitted that three reasons can be proffered for answering this question in the
negative: First, any application for intestate inheritance could be opposed by any
other potential heir who is of the opinion that he or she should be entitled to
inherit instead of the applicant. Second, extending subsection (3) in such a
manner would-despite the fact that the Constitutional Court has made it clear
that the Legislature is permitted to "fine-tune" the impact of the case law relating
to same-sex couples who at the time were not permitted to marry580-conflict
with the baseline criteria of permanence and undertakings of mutual support
established by the Gory case. Finally, if subsection (3) were indeed to be
580
SeeGory v Kolver NO 2007 (4) SA97 (CC) at par [27]- [31].
688
extended in the manner described, this would create an inconsistent legal
position regarding the intestate succession rights of spouses and registered
domestic partners versus those of unregistered domestic partners; a situation
which would once again expose the domestic partnership legislation to the risk of
unconstitutionality.
It is submitted that the preceding observations necessitate the following
amendments to clause 31 of the 2008 Bill:
(1) Where an unregistered domestic partner dies intestate, his or her surviving
unregistered domestic partner may bring an application to court, subject to
subsections (2) and (3), for an order that he or she may inherit the intestate
estate: Provided that a Court is satisfied that a reciprocal duty of support existed
between the unregistered domestic partners.
(2) Where the deceased is survived by an unregistered domestic partner as well as
a descendant, such unregistered domestic partner inherits a child's share of the
intestate estate or so much of the intestate estate as does not exceed in value
the amount fixed from time to time by the Cabinet member responsible for the
administration of Justice by notice in the Gazette, whichever is the greater, as
provided for in the Intestate Succession Act.
(3) In the event of a dispute between a surviving unregistered domestic partner
and-
(i) the customary spouse of a deceased partner; or
(ii) a spouse to a marriage that has been concluded with the deceased
partner in accordance with 0 system of religious low subject to specified
procedures; or
(iii) another unregistered domestic partner
regarding the benefits to be awarded, a court may, upon application by either
the unregistered domestic partner or the customary spouse, make an order that
it regards just and equitable with reference to all the relevant circumstances of
áetR such multiple relationships.
689
(4) In the event of a conflict between the provisions of this section and a provision in
the Reform of Customary Law of Succession and Regulation of Related Matters
Act, 2009 (Act 11of 2009), the provisions of that Act shall prevail.
11.5 Time limits within which unregistered domestic partners are required
to bring an application for the relief provided by the Bill
According to clause 33 of the Bill:
(1) Except as otherwise provided for by this section, an application to a court for an
order in terms of section 31 of this Act must be made within two years after the
date on which an unregistered domestic partnership has terminated through
separation or death.
(2) A court may, at any time after the expiration of the period referred to in
subsection (1) grant leave to an applicant to apply to the court for an order in
terms of section 31 of this Act, where the court is satisfied, having regard to
such matters as it considers relevant, that greater hardship would be caused to
the applicant if the leave was not granted than would be caused to the
respondent if the leave was granted.
It is immediately apparent that clause 33 of the Bill in essence transplants clause
23 of the Bill into an unregistered domestic partnership setting, with the result
that much of what was said regarding the latter provision pertains equally to
clause 33. As was the case with clause 23, clause 33 also contains an incorrect
cross-reference, namely to section 31 that deals with intestate succession.
However, contrary to the position regarding the registered domestic partnership,
ascertaining the correct cross-reference from clause 33 is a far simpler task due
to the fact that the applicability of Part 3 (specifically section 18(1)) of the New
South Wales Property Relationships Act 1984 can more readily be inferred as
both clauses deal with the ex post facto recognition of non-formalised (as
opposed to registered) domestic partnerships. On the basis of the analysis
690
conducted in 9.3.4 above, it can therefore be assumed that, as in the case of the
Australian legislation, clause 33 should contain a cross-reference to both claims
for post-separation inter-partner maintenance and for post-termination property
division. The references to "section 31" in subsections (1) and (2) should
therefore be replaced with "sections 28 and/or 32."
11.6 Property division
With the exception of subsections (6) and (7), clause 32 substantially recasts
clause 22 of chapter 3 of the Bill, with the result that it must be noted from the
outset that many of the conclusions reached in 9.3.5 are also directly applicable
to clause 32. The clause in question states:
(1) In the absence of an agreement, one or both unregistered domestic partners
may apply to court for an order to divide their joint property or the separate
property, or part of the separate property of the other unregistered domestic
partner.
(2) Upon an application for the division of joint property, a court may order the
division of that property which it deems just and equitable with due regard to all
relevant circumstances.
(3) Upon an application for the division of separate property or part of the separate
property, a court may order that the separate property or such part of the
separate property of the other unregistered domestic partner as the court
regard [sic] just and equitable, be transferred to the applicant.
(4) A court considering an order as contemplated in subsections (2) and (3) must
take into account-
(a) the existing means and obligations of the unregistered domestic
partners;
(b) any donation made by one unregistered domestic partner to the other
during the subsistence of the unregistered domestic partnership;
(c) the circumstances of the unregistered domestic partnership;
691
(d) the vested rights of interested parties in the joint and separate property
of the unregistered domestic partnership; and
(e) any other relevant factors.
(5) A court granting an order contemplated in subsection (3) must be satisfied that
it is just and equitable to do so by reason of the fact that the unregistered
domestic partner in whose favour the order is granted, made direct or indirect
contributions to the maintenance or increase of the separate property or part of
the separate property of the other unregistered domestic partner during the
existence of the unregistered domestic partnership.
(6) A court granting an order contemplated in subsection (3) may, on application by
the unregistered domestic partner against whom the order is granted, order
that satisfaction of the order be deferred on such conditions, including
conditions relating to the furnishing of security, the payment of interest, the
payment of instalments, and the delivery or transfer of specified assets, as the
court regards just and equitable.
(7) A court may make any order proper for the protection of the rights of interested
parties.
Drawing on the conclusions reached in 9.3.5 above, it is submitted that:
(1) As in the case of clause 22, clause 32 must make provision for the fact
that the parties to an unregistered domestic partnership (i) may enter into
a written agreement between themselves regarding property division; and
(ii) that it may be necessary for a Court to overrule the provisions of such
an agreement where the interests of justice and equity so require;
(2) For the same reasons submitted in the discussion of clause 22, it is
submitted that clause 32(4) should be aligned with divorce law and
therefore should separate the quantum and merit processes as far the
redistribution of separate property is concerned. By the same token,
subsection (4) should reflect the fact that the factors listed in (a) through
692
(e) may be used in order to assess both the merits as well as the quantum
of the division of joint property; and
(3) The lessons that can be taken from the law of divorce as far as the
redistribution competency granted in terms of section 7 of the Divorce Act
70 of 1979 is concerned, are capable of application in the case of both the
registered and the unregistered domestic partnership, and the risk of
unconstitutionality of the competency granted under clause 32 is as real
as that granted under clause 22 due to the differentiation created between
domestic partnerships and marriage.
A final consideration regarding property division within the context of the
unregistered domestic partnership is the role, if any, to be portrayed by the so-
called "choice argument" in terms of which it is contended that parties who have
elected not to marry one another (or to enter into a civil partnership) are, by virtue
of this choice, not entitled to avail themselves of the protection provided by
matrimonial (property) law. For the purposes of clarity it may be prudent briefly
to recap the conclusions thus far reached in this study. In developing the
"contextualised choice model" in Chapter 5, the conclusion was reached that the
"choice argument" would have no role to play as far as need-based claims are
concerned, but that if a person who had chosen not to formalise his or her
relationship attempted to institute a claim based on a property dispute (division of
assets), "the "choice argument" would be a highly persuasive factor in deciding to
exclude the possibility of applying matrimonial (property) law to solve the
dispute." This conclusion was re-examined within the context of registered
domestic partnerships, where it was concluded that despite the fact that such
partners have made a positive choice not to marry, the fact that chapter 3 of the
Bill does not provide "an effective and well-defined alternative to matrimonial
property law" implied that the extension of matrimonial property law could be
justifiable and that the Bill needed to be amended accordinqly.P'"
581 See the amendments suggested in 7.3.4.2 above.
693
Attempting to apply (or to adapt) this rationale within the context of the
unregistered domestic partnership must be based on the foundational principle
that the fact of such a partnership is based on one of two possibilities: In the first
place, the partners may have made a positive choice not to marry or to enter into
a registered domestic partnership. In the alternative, it may happen that the
applicant partner was never given the choice to formalise the relationship, either
because his or her partner simply refused to co-operate in this regard or because
of a lack of awareness of the possibilities of formalisation provided by the law. It
goes without saying that the "choice argument" can at best apply only within the
context of the former possibility. In addition, where a conscious choice not to
formalise the relationship has been taken this autonomous choice must as far as
possible be respected. This notwithstanding, the law must still provide adequate
protection for an applicant partner who falls into this category, particularly where
this positive choice was made in ignorance.582 It is submitted that the
comparative analysis conducted thus far throughout this studl83 shows that the
ex post facto options provided under chapter 4 of the Bill will indeed provide
adequate protection provided that the amendments suggested throughout this
Chapter are implemented. In the result, it is suggested that if any protection
were to be required beyond the scope of that already offered by the amended
chapter 4, the fact that the parties had deliberately chosen not to formalise their
relationship could be deemed by a Court to be a cogent reason for refusing to
extend the protection any further for, as the South African Law Reform
Commission has remarked, "the protection offered to relationships should be on
a par with the level of commitment by the parties.,,584 Furthermore, the fact that
the enactment of a registered domestic partnership option provides an additional
formalisation alternative would strengthen this assumption. On the other hand,
where the facts of an application lead a Court to conclude that a vulnerable
582
Also see Und 2005: 119: "[I)t is possible to argue convincingly that even the most ardent choice
made to cohabit [and hence not to formalise one's relationship) impacts disproportionately upon
women and men, because it is made in a severely gendered environment."
583
The range of remedies available in chapter 4 of the Bill compares favourably with other
jurisdictions that adhere to the judicial discretion model.
584
SALRC2003: 321.
694
applicant was unable to convince his or her partner to formalise their relationship,
the extension of a principle of matrimonial (or registered domestic partnership)
property law may conceivably be justifiable due to the lack of any real choice.
Fortunately the wide range of protection provided by chapter 4 (as modified in
accordance with the rubric) makes it unlikely that such an extension would ever
be necessary.
In the light of these conclusions, it is submitted that clause 32 should be
amended as follows:
In the absence of an agreeffient event of a dispute regarding the division of
property after an unregistered domestic partnership has terminated, or, if the
court is not satisfied that an agreement entered into between the partners isjust
and equitable as far as the division of property is concerned in the light of the
factors listed in subsection (4) of this section, a Court may, upon application by
one or both of the unregistered domestic partners, order the division of their
J.a.mt property or separate property, as t he court may deem fIt.585
(2) Upon an application for the division of joint property, a court may order the
division of that property which it deems just and equitable with due regard to all
relevant circumstances.
(3) Upon an application for the division of separate property or part of the separate
property, a court may order that the separate property or such part of the
separate property of the other unregistered domestic partner as the court
regard just and equitable, be transferred to the applicant.
(4) A court considering whether to grant an order contemplated in subsection (2)
and determining the assets or part thereof to be transferred under subsection (3)
must take into account-
(a) the existing means and obligations of the unregistered domestic
partners;
585
The word order of this clause has been altered but is not shown in the interests of greater
readability.
695
(b) any donation made by one unregistered domestic partner to the other
during the subsistence of the unregistered domestic partnership;
(c) the circumstances of the unregistered domestic partnership;
(d) the vested rights of interested parties in the joint and separate property
of the unregistered domestic partnership; and
(e) any other relevant factors.
(5) A court granting an order contemplated in subsection (3) must be satisfied that
it is just and equitable to do so by reason of the fact that the unregistered
domestic partner in whose favour the order is granted, made direct or indirect
contributions to the maintenance or increase of the separate property or part of
the separate property of the other unregistered domestic partner during the
existence of the unregistered domestic partnership.
(6) A court granting an order contemplated in subsection (3) may, on application by
the unregistered domestic partner against whom the order is granted, order
that satisfaction of the order be deferred on such conditions, including
conditions relating to the furnishing of security, the payment of interest, the
payment of instalments, and the delivery or transfer of specified assets, as the
court regards just and equitable.
(7) A court may make any order proper for the protection of the rights of interested
parties.
11.7 "Contracting out"
An issue that deserves some attention is whether unregistered domestic partners
should be able to "contract out" of the protection offered by chapter 4 of the Bill.
Contrary, for example, to Part 6 of the New Zealand Property (Relationships) Act
1976, the 2008 Bill does not expressly empower unregistered domestic partners
to avail themselves of such an option. In its current form, clause 32(1) of the Bill
does however empower them to reach an agreement regarding property division.
It is submitted that by specifically empowering the Courts to disregard informal
agreements between the partners where the interests of justice and equity so
demand, the amendments that have been proposed to clauses 28 and 32 of the
- --------------------------------------------------------------------------------~
696
Bill not only ensure better protection of vulnerable parties, but also remove the
need for provisions regulating both the ability to contract out as well as the
Courts' power to set such agreements aside.
11.8 Other claims based on a reciprocal duty of support
In paragraph 4.2.2 it was pointed out that chapter 4 of the Bill contains a vital
lacuna in that it does not specifically provide for the extension of certain claims
based on the existence of a reciprocal duty of support to unregistered domestic
partners. For example, while the Supreme Court of Appeal has extended the
dependant's claim for loss of support to "a same-sex partner of the deceased in a
permanent life relationship similar in other respects to marriage, in which the
deceased had undertaken a contractual duty of support to [such partner]",586
chapter 4 of the Bill does not provide for an unregistered domestic partner to do
the same. This differentiation cannot be countenanced for as stated earlier in
this Chapter:
It goes without saying that the dependant's claim for loss of support is a need-based
claim ... The Bill loses sight of the fact that such a claim-as a need-based claim-
requires only that the partners to the permanent union have undertaken reciprocal
support obligations in order for it to be instituted. [As far as the issue of a "public
formal commitment" is concerned] the existence of [such a commitment] is as irrelevant
for the unregistered partners as it was for the same-sex couple in the Du Plessis case.58?
It is submitted that this prima facie unconstitutional differentiation can readily be
remedied by inserting the following provision into chapter 4 of the Bill:
586 See Du Plessis v Road Accident Fund 2004 (1) SA 359 (SeA).
587 See 4.2.2.2.1 (b) above.
697
33A Claims based on a reciprocal duty of support
For the purposes of the institution of any claim that is based on the existence of a
legally-enforceable reciprocal duty of support, unregistered domestic partners are
deemed to be spouses to a valid marriage provided that a Court is satisfied that such a
reciprocal duty of support has indeed been undertaken between the unregistered
domestic partners in question.
Such a provision will entitle a surviving unregistered domestic partner to institute
the dependant's action for loss of support against a person who unlawfully killed
his or her breadwinner.
11.9 Consortium omnis vitae
11.9.1 Introduction
An important aspect to consider is the extent to which the law will, in view of the
enactment of the Domestic Partnerships Bill (as modified in accordance with the
rubric), recognise the concept of consortium omnis vitae within the context of the
unregistered domestic partnership. In the discussion of life partnerships in
Chapter 5 it was opined that the South African Courts have-at least as far as
homosexual life partnerships are concerned588-thus far recognised a
contextualised form of the concept of consortium omnis vitae as traditionally
encountered in the law of marriage as a constitutive element of the broader right
to family life (which in turn is protected by the constitutional right to dignity).589 In
the result, the positive law dictates that while "the ability to establish a consortium
omnis vitae,,590has been recognised within the context of conjugal homosexual
life partnerships, no similar development has occurred in respect of their
588
See National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
at par [53) and [54).
589
Cronjé and Heaton 2004: 51.
590
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at
par [53).
698
unmarried opposite sex counterparts despite the undoubted ability of the latter to
establish the same. It was further suggested that the Legislature should be the
appropriate forum by which to remedy this discrepancy, and that the Domestic
Partnerships Bill (as modified in accordance with the rubric) should do just that.
With reference to registered domestic partnerships it has been seen that there is
no reason for distinguishing between the concept of consortium within the
contexts of marriage and such domestic partnerships, and to this end an
amendment to clause 9 of the Bill was proposed which, in effect, would entitle a
registered domestic partner to protect his or her right to consortium as against
third persons in the same way as a spouse to a marriage. The question that
remains is whether chapter 4 of the Bill should protect unregistered domestic
partners in the same manner.
It stands to reason that one of the main grounds for justifying the full extension of
the notion of consortium to registered domestic partners while not permitting the
same in the case of unregistered partnerships is that the former have undertaken
a public commitment that entitles them to obtain rights that are enforceable
against outslders.t'" while the failure of the latter group to undertake any similar
commitment implies that the same does not hold true for them. If this line of
reasoning is applied specifically to the concept of consortium, it follows that,
analogous to the law of marriage,592the consortium omnis vitae is created by the
act of registration and by virtue of the same act simultaneously becomes
enforceable against outsiders. The public nature of the act of marriage or
registering a domestic partnership therefore proclaims to the outside world-to
individual citizen and to State alike-that the spouses or partners have entered
into a relationship that instantaneously alters their standing both in private as well
as public law.593 In short, therefore, the act of marriage or registration is an
objectively ascertainable fact that not only instantly creates ineluctable moral and
591 SALRC2006: 320.
592 See Oawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of
Home Affairs 2000 (3) SA 936 (CC) at par [33].
593 See Volks NO v Robinson 2005 (5) BCLR446 (CC) at par [58]; Hahlo 1985: 127; Sinclair and Heaton
1996: 417.
699
legal obligations for the spouses or registered domestic partners, but also
ensures certainty for outsiders. As Sachs J stated in Minister of Home Affairs v
Fourie: 594
It is true that marriage ... constitutes a highly personal and private contract between a
man and a woman in which the parties undertake to live together, and to support one
another. Yet the words "I do" bring the most intense private and voluntary
commitment into the most public, law-governed and State-regulated domain.
As a corollary of this position, the fact that no formal commitment has been
undertaken between unregistered domestic partners implies that even though the
partners have "the same ability to establish a consortium omnis vitae,,,595 the
conduct by which the same would formally be established so as to become
enforceable against outsiders at an objectively ascertainable moment has never
taken place. Indeed, the application of an ex post facto judicial discretion model
to South African unregistered domestic partnerships ipso facto implies that, on
the basis of sheer pragmatism, an aggrieved partner could not institute the
actions traditionally employed to protect consortium against a third party who
interfered in the relationship by, for example, enticing the other partner to leave
the common household. By the same token an unregistered domestic partner
involved in criminal or civil proceedings would presumably not be able to insist on
the evidentiary privilege to which a spouse is (and, as has been submitted earlier
in this study, a registered domestic partner should be)596entitled.
594 Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and
Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and
Others 2006 (1) SA 524 (CC) at par [63].
595 Per Ackermann J in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1 (CC) at par [53].
596 See 6 above where it is suggested that the Criminal Procedure Act 51 of 1977 and the Civil
Proceedings Evidence Act 25 of 1965 should extend the privilege related to marital
communication to registered domestic partners.
700
11.9.2 Constitutional considerations
In the alternative, if the preceding conclusions are incorrect, it is submitted that
there is another reason that can be raised in support of the contention that the
consortium omnis vitae between unregistered domestic partners is not binding on
outsiders or on the State. This argument draws from a number of opinions that
have been expressed in respect of the possible unconstitutionality of the
continued recognition of claims traditionally used to protect the consortium
between spouses to a marriage as against outsiders. In this regard Cronjé and
Heaton597 submit that:
The continued existence of the action on the ground of adultery (and even more so the
actions on the ground of enticement and harbouring) has rightly been questioned in
view of the fact that adultery is no longer a ground for divorce but merely a factor that
may indicate that the marriage has broken down irretrievably. All these actions may
also be challenged on the ground that they violate the third party's (and the other
spouse's) constitutional right to freedom of association.
Heaton598 does however mention that despite this possibility it may be argued
that the fact that these actions "serve to protect the sanctity of marriage" may
lead a Court to conclude that their continued recognition constitutes a justifiable
limitation of this constitutional right.
The continued existence and constitutional validity of delictual claims based on
adultery was considered in the recent case of Wiese v Moo/man.599 /n casu the
plaintiff and his wife (L) were divorced in 2003. It was common cause that L had
been involved in an adulterous relationship with the defendant prior to the
divorce. When the plaintiff instituted a claim for damages against the defendant
on the basis of adultery, the latter raised a special plea to the effect that such a
597 2004: 50, 51.
598 2005: 3CI9.1.
599 2009 (3) SA122 (T).
701
claim no longer had a right of existence in modern-day South Africa and that it
should be abolished.6oo
Regarding the defendant's argument that the legal convictions of the community
no longer militated against adulterous conduct Du Plessis J held that South
African law accepts that a collection of personality rights which must be
respected by outsiders accrues to spouses in consequence of the nature of the
intimate personal relationship upon which marriage is based.601 In this regard it
was held that adulterous conduct conflicts with a constituent element of marriage,
namely the parties' undertaking-both between themselves and towards
outsiders-to engage in sexual intercourse within the marriage only.602
According to the learned Judge, constitutional jurisprudence has confirmed not
only the importance of the institution of marriage and the necessity for it to be
respected, but also that its nature and content-including the undertaking in
respect of exclusively intra-marital sexual relations-be recognised. As a result,
Du Plessis J held that the legal convictions of the community still required
adulterous conduct to be regarded as wrongful. Furthermore, legal policy
demanded that the spouses' undertakings of exclusively intra-marital sexual
relations be protected from outside interference.603
For the purposes of this study an important contention made by the defendant
was that a claim based on adultery was no longer constitutionally valid as it
infringed the right to equality as (i) only married persons were permitted to avail
themselves of such a claim, and (ii) such claims were not available in same-sex
marriages. In this regard Du Plessis held that:
Daar is regtens geen rede waarom eggenote in sulke huwelike [that is to say same-sex
marriages] nie presies die regte het wat hierbo uiteengesit is nie. Wat die betoog betref
600
At 124 (B) - (C).
601
At 125 (F) - (G).
602
At 125 (G) - (H) and 126 (e) - (D).
603 At 127 (H) - (J).
702
dat die aksie gegrond op owerspel slegs getroude persone toekom, is dit eenvoudig so
omdat owerspel 'n huwelik veronderstel. Persone wat verkies om in andersoortige
verhoudings saam te leef maak self daardie keuse en kan hulle nie bekla as die gevolge
van 'n huwelik, wat hulle self besluit het om nie aan te gaan nie, nie op hulle van
toepassing is nie. Daarby moet in ag geneem word dat ons reg nie 'n geslote aantal
handelinge erken wat persoonlikheidsregte kan krenk nie. 'n Persoon wat bewys dat sy
of haar persoonlikheidsregte onregmatig aangetas is met die nodige opset, kan op
genoegdoening met die actio iniuriarum aanspraak maak.
In respect of the defendant's contention that his right to dignity was infringed by
the plaintiff's claim, Du Plessis J held that no such infringement could take place
where a person intentionally interfered with a private relationship and incurred
liability as a result. Finally, regarding the argument that the plaintiff's claim
breached the fundamental rights to freedom of religion, belief and opinion604 and
to freedom of association'ë" by not taking cognisance of the fact that L and the
defendant had the right "orn hulle liggame volgens hulle eie oortuigings aan te
wend," Du Plessis J held that L had limited her right when she married the
plaintiff, and that the defendant was aware thereof.606 In addition, this action had
developed over the years so as to become '''n aksie wat 'n unieke verhouding en
persoonlikheidsregte wat daaruit voortspruit beskerm ongeag die geslag van die
betrokkenes," so that the defendant's argument that the action had developed
from the notion that a woman's body was the property of her husband and was
for this reason no longer relevant in a constitutional dispensation, could not hold
water.?"
It is submitted that the Wiese judgment affirms Heaton's opinion to the effect that
the actions which protect consortium should be retained so as to protect the
sanctity of the "unieke verhouding" that is marriage, and that an outsider's right to
604 Section 15 of the Constitution, 1996.
605 Section 18 of the Constitution, 1996.
606 At 129 (D) - (F).
607 At 129 (F) - (J).
703
freedom of association cannot trump an action instituted on the basis of an
intentional infringement of consortium. Furthermore, as will be seen below, Du
Plessis j's analysis of the constitutional issues raised in Wiese serves to provide
some guidance in respect of the constitutional considerations that should apply
when the issue of consortium omnis vitae arises within the context of
unregistered domestic partnerships.
With reference to this issue, it has been seen that unmarried same-sex life
partners have "the same ability to establish a consortium omnis vitae" and that
they "are capable of constituting a family" and "benefiting from family life" in the
same way as spouses to a marriage.608 Nevertheless, it has also been seen that
a contextualised form of consortium omnis vitae that applies inter partes only has
thus far been recognised by our Courts,609 and, importantly, that there is no
reason why the same should not be recognised in the case of heterosexual life
partnerships. Drawing on these conclusions, it is submitted that a similar
nuanced and limited consortium omnis vitae that applies inter partes only should
be retained within the context of unregistered life partnerships under chapter 4 of
the Bill. In testing the validity of this assertion, the question arises as to whether
the rights to equality and dignity (the latter of which protects the right to family
life610 of which consortium omnis vitae forms a part)611 of an unregistered
domestic partner can justifiably be limited in terms of section 36 of the
Constitution, 1996 so as to recognise a consortium that exists between herself
and her partner only and is not binding on outsiders. In order for these rights to
be so limited, it would have to be shown that there is a sufficient proportionality
between the infringement of the partner's rights to dignity and equality (and
hence, in the case of the latter right, to family life) and the purpose of the law that
608
Per Ackermann J in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1 (CC) at par [53).
609
See 3.7 in Chapter 5.
610
Cronjé and Heaton 2004: 51.
611
Oawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of
Home Affairs 2000 (3) SA 936 (CC)at par [30) as interpreted by Cronjé and Heaton 2004: 51.
704
limits these rights.612 In this regard it is submitted that the purpose of the law that
restricts the right of persons who are capable of instituting claims based on
consortium against outsiders to married spouses only would be, first, to protect
the sanctity of marriage and the commitments that relate specifically thereto, and
second to avoid a situation where limitless liability would potentially result if
delictual actions could indiscriminately be instituted whenever an informal
relationship was terminated due to outside interference (often referred to in
similar contexts as the so-called "floodgate argument,,).613 As far as the first
purpose (sanctity of marriage) is concerned a Court would respectfully be
advised to heed the observation made by Ackermann J in National Coalition for
Gay and Lesbian Equality v Minister of Home Affairs614 that "protecting the
traditional institution of marriage as recognised by law may not be done in a way
which unjustifiably limits the constitutional rights of partners in a permanent
same-sex life [and, it is submitted, a permanent unregistered heterosexual or
homosexual domestic] partnership." On this line of reasoning it may be so that
the extension of the right to protect their consortium from outside interference to
unregistered domestic partners would in no way constitute "a disparagement of
the traditional institution of marriage.,,615 On the other hand it is submitted that
the flood of litigation that may be occasioned by the lack of objective certainty as
to the relationship status of an unregistered domestic partner may indeed justify
the limitation of the aggrieved partner's right. In this respect it is however
important to note that the limitation in question would not leave an aggrieved
partner without any remedy whatsoever for, as Du Plessis J observed in Wiese v
Moolman616 "[daar moet in ag geneem word dat ons reg nie In geslote getal
handelinge erken wat persoonlikheidsregte kan krenk nie. In Persoon wat bewys
612 Currie and De Waa12005: 176.
613 See Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1)
SA 461 (SCA) at par [19]; Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 (3) SA 151
(SCA) at par [15] and 36]; Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2000
(2) SA 54 (C) at 67 (C).
614 2000 (2) SA 1 (CC) at par [55].
615 Per Ackermann J in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1 (CC)at par [56].
616 2009 (3) SA 122 (T) at 129 (B) - (C).
70S
dat sy of haar persoonlikheidsregte onregmatig aangetas is met die nodige
opset, kan op genoegdoening met die actio iniuriarum aanspraak maak."
In terms of the privilege relating to marital communications that is guaranteed by
both the Criminal Procedure Act 51 of 1977 and the Civil Proceedings Evidence
Act 25 of 1965, the failure to extend the same to unregistered domestic partners
may be justified by the significant burden that doing so would place on the
administration of justice by in each instance requiring a Court first to have to
determine on the facts whether a specific relationship qualified for such
protection and also by the lack of legal certainty that such an ad hoc state of
affairs would produce. (In passing it may be mentioned that the imposition of a
minimum duration requirement for unregistered domestic partnerships in order to
qualify as such for the purposes of these Acts may have a palliative effect on this
problem.)
11.9.3 Conclusion: Consortium omnis vitae inter partes
It is submitted that the preceding discussion shows that although a consortium
omnis vitae is undoubtedly established by parties to an unregistered domestic
partnership that qualifies as such under clause 26 of the Bill, the ex post facto
application of chapter 4 of the Domestic Partnerships Bill necessitates confining
the legal recognition thereof to the partners themselves, with the effect that
neither outsiders nor the State can be bound to such consortium beyond the
boundaries set by chapter 4 of the Bill. (In the case of non-conjugal
relationships, the consortium omnis vitae that exists between them will have to
be further contextualised, to the extent that the eros (sexual intimacy) element
that generally applies between married persons or conjugal domestic partners is
lacking.)
706
11.9.4 Consortium omnis vitae, the unregistered domestic partnership and
the "choice argument"
In conclusion, it is important to ascertain how the approach towards consortium
omnis vitae within the context of unregistered domestic partnerships fits into the
"contextualised choice model." Would it be correct to say that the failure of the
law to recognise a consortium omnis vitae between such partners that is in all
respects the equivalent of that recognised in a marriage can be ascribed to the
fact that the partners have chosen not to marry one another (or to enter into a
registered domestic partnership)?
The answer to this question is partly yes and partly no. Where the parties have
made a positive choice not to marry or to register their partnership, the fact that
their consortium omnis vitae is not (but to the extent provided for by the Bill)
binding on outsiders or on the State will be a direct consequence of this decision.
On the other hand, where no real choice was ever made in this regard, the
consequence, unfortunately, would be the same. While one would undoubtedly
sympathise with a vulnerable partner who would be unable to sue an outsider for
"adultery," harbouring or for enticing his or her partner to leave the common
household, this would, in the light of the conclusions reached above, constitute a
justifiable limitation of such a partner's rights to equalitl17 and dignity (and hence
to family life).
617
See the finding in Wiese v Moolman 2009 (3) SA 122 (T) at 129 (A) - (C) (briefly discussed in the
main text above) regarding the restriction of claims based on adultery to married couples only
and the effect hereof on the right to equality.
707
12. THE FINAL FACET OF THE RUBRIC: CALIBRATING THE MODIFIED
DOMESTIC PARTNERSHIPS BILL WITH LEGISLATION DEALING
WITH LIFE OR DOMESTIC PARTNERSHIPS
12.1 Introduction: Assessing the need for reform and determining the
principles that should guide the way forward in compliance with the
rubric's calibration injunction
As seen in Chapter 6, the Legislature has enacted various pieces of legislation
over the years that have specifically catered for unmarried couples. While many
salutary developments have undoubtedly occurred, the downside of this
piecemeal recognition is the patchwork of laws that have resulted, with many
Acts employing diverging terminology leading to an uncertain legal position. One
thinks, for example, of the Insolvency Act 618which, while being revolutionary at
the time of its enactment in 1936 for specifically providing for unmarried
heterosexual cohabitants.f"? is probably unconstitutional today for not including
same-sex life partners."? Other problems arise due to inconsistent terminology,
where the term "life partnership" is used in the majority of these Acts,621while
another refers to a "de facto spouse,,622and yet another to a "domestic life-
partnership.,,623 This state of affairs makes it almost impossible to determine with
certainty whether, for example, a simple reference without more to "life
partnership" in any given Act must-once the Domestic Partnerships Bill is
promulgated as an Act of Parliament-be interpreted as referring to either a
registered domestic partnership, or to an unregistered domestic partnership, or to
neither, or even to both. Another significant problem is posed by a combination
618
24 of 1936.
619
Section 21(13).
620
This problem is discussed in 3.2.7 in Chapter 6.
621
For example those Acts which establish Boards or appoint Commissioners such as the South
African Civil Aviation Authority Act 40 of 1998 (see section 9(4)); the Land and Agricultural
Development Bank Act 15 of 2002 (see section 21(3)(a)) and the National Energy Regulator Act
40 of 2004 (see for example section 6(4)).
622
Section 6(2) of the Independent Media Commission Act 148 of 1993.
623
See sections 231(1)(a) and 242(1)(a) of the Children's Act 38 of 2005.
708
of the difficulty just described coupled with the fact that very few Acts provide
clear guidelines as to how to establish whether the partnership, cohabitation
relationship or de facto marriage referred to in that specific Act in fact exists.624
The result is that, while these Acts provide for such relationships de iure, most of
them are silent in terms of assessing whether the relationship exists de facto.625
This situation is clearly untenable, and must be addressed in accordance with the
rubric's calibration injunction and its aim to ensure legal certainty. Doing so
must, of necessity, be based on a number of steadfast underlying principles. The
following are suggested:
In view of the fact that according to its long title the draft Domestic
Partnerships Bill seeks to regulate the "legal recognition of', to enforce the
"legal consequences of' and to provide for "matters incidental" to domestic
partnerships, the Bill should, once enacted, provide the legislative
624 Examples in this regard are legion-see for example the Children's Act 38 of 2005 which refers to
"domestic life-partnership" in inter alia sections 231 and 242 without this concept being defined;
labour legislation which refers to "life partner" but does not explain who qualifies as such (see
for example the Employment Equity Act 55 of 1998 section 6 read with the section 1 definition of
"family responsibility" and section 30 of the Unemployment Insurance Act 63 of 2001) and those
Acts which establish Boards or appoint Commissioners (such as the South African Civil Aviation
Authority Act 40 of 1998). Tax legislation also seems to be lacking in this regard, and will receive
special attention in 12.2.3 below.
625 It is interesting to note the approach taken by the South African Law Commission in its 2009 draft
Consultation Paper on the revision of legislation administered by the Department of Labour
(Project 25). In respect of the Unemployment Insurance Act 63 of 2001 the Commission remarks
that the Act in its current form does not define the concepts "dependant", "spouse" or "life
partner." To this end, the Commission opines that such definitions must be inserted into the Act
"to reflect the changes made by [the Civil Union Act 17 of 2006]" (at 28). While it is certainly true
that these definitions should take Act 17 of 2006 into account, this alone will not solve the
problems discussed above. Therefore, the point must be reiterated that, over and above
allowing for Act 17 of 2006, it will be of cardinal importance to align these definitions with the
prospective domestic partnership legislation. Although it must be conceded that the
Commission could hardly be expected to take the provisions of a draft Bill into account, the
necessity of alignment should be brought to their attention, as it is possible that domestic
partnerships legislation may be promulgated before the Commission's investigation is finalised.
It is also interesting to note that although the Commission acknowledges the fact that the
Employment Equity Act 55 of 1998 as well as the Basic Conditions of Employment Act 75 of 1997
are all administered by the Department of Labour (see Annexure BL no mention is made of
similarly amending or defining the concept of "life partner" or alignment of these Acts with
prospective domestic partnership legislation. This oversight should also be brought to the
attention of the Commission.
709
substructure of the domestic partnership. (As will be recalled, this is also
the point of departure taken by the domestic partnerships rubric.)626 As
such, the Bill should provide the benchmark or point of reference for all
ancillary legislation. As a consequence, the first principle should be that
all legislation that seeks to regulate permanent life partnerships in any way
should, as far as possible, be aligned with the Domestic Partnerships Bill
as modified in terms of the rubric.
• However, in order for this goal to be achieved, it is essential for the
Domestic Partnerships Bill to provide a solid and reliable list of criteria
according to which the existence of such a relationship is to be
determined. (This aspect was addressed earlier in this Chapter when
clause 26 of the Bill was discussed.)
• In principle, any Act that has been (or will be) promulgated before the
Domestic Partnerships Bill is enacted should be presumed not to intend to
distinguish between registered and unregistered domestic partnerships,
for the simple reason that no such distinction would have existed at the
time when that specific Act was promulgated. Furthermore, no current Act
requires any form of (formal) public commitmenr'" in order for the couple
to qualify as a life partnership (or something similar) for the purposes of
that Act. Similarly, no Act differentiates between couples who have
undertaken such a commitment and those who have not. Therefore, in
cases where doubt persists as to whether a reference to "life partnership"
(or a similar term) should henceforth encompass both the registered and
unregistered domestic partnership, the point of departure must be that the
Act in question intends to include both of these partnership options, unless
the contrary intention appears from the Act itself or from the Domestic
Partnerships Bill.
626
See 5 in Chapter 3, again referred to in 1 above.
627
For example, in the form of a so-called "commitment ceremony."
710
• It must however be borne in mind that certain pieces of legislation have
been drafted in such a way as to enable them to function independently of
the Domestic Partnerships Bill. This occurs, for example, where an Act is
self-sufficient in that regulations have been promulgated in order to
provide specific guidance as to how that Act is to be applied.628 In such
an instance, it may be presumed that amendment in order to facilitate
alignment with the Bill is unnecessary.
• In order to streamline the interrelationship between the Bill and the other
Acts, a system of cross-referencing between the definition clauses in
these Acts and the Bill should be introduced where apposite.
The following conclusions can be drawn from the principles listed above:
(1) Where any Act:
(i) already contains a tailor-made description coupled with context-
specific criteria pertaining to the relationships to which it applies;
and/or
(ii) is required to be read in conjunction with regulations that have been
promulgated under that Act in order to give effect to its provisions;
in such a way as to enable that Act to function independently of the
Domestic Partnerships Bill, it should be presumed that no amendment of
that Act is required;
(2) Where an Act provides specific criteria with which a non-formalised
relationship must comply for the purposes of that Act (for instance a
minimum duration requirement), these criteria should as far as possible be
respected;
628
For example, the regulations promulgated under the Immigration Act 13 of 2002. This Act is
discussed below.
711
(3) Where any Act other than one referred to in conclusion (1) above makes
use of a term other than "domestic partnership" or "domestic partner", that
Act should, in order to ensure uniformity, be amended to reflect the
terminology employed by the Domestic Partnerships Bill;
(4) With the exception of legislation mentioned in conclusion (1) above, a
definition of "domestic partnership" should be inserted into all legislation
referred to in conclusion (3) which should state that '''domestic partnership'
means a registered or unregistered domestic partnership in accordance
with the Domestic Partnerships Act ... "; and, finally
(5) Even if the term "domestic partnership" were to be inserted into all
legislation mentioned in conclusion (3) coupled with the insertion of the
definition mentioned in conclusion (4), this would do little to solve the
problem mentioned earlier to the effect that a lack of criteria may make it
difficult to establish whether a given relationship qualifies as a domestic
partnership for the purposes of that specific Act. While it is self-evident
that it will not be difficult to determine whether the parties have entered
into a registered domestic partnership, the question as to whether a
relationship that has not been registered qualifies as an unregistered
domestic partnership for the purposes of that Act may be more difficult to
answer. This problem is exacerbated by the fact that, in its current format,
clause 26 of the Domestic Partnerships Bill only permits a Court to
determine whether an unregistered domestic partnership exists for the
purposes of the Bill, with the result that a mere cross-reference from the
Act to the Bill will not suffice. Consequently it is submitted that a sub-
clause should be inserted into clause 26 of the Bill which requires the
factors listed in clause 26 to be considered for the purposes determining
whether an unregistered domestic partnership exists for the purposes of
any Act which has been amended in accordance with conclusions (3) and
712
(4) above. The suggested wording of this sub-clause will be provided in
12.2.5 below.
12.2 Giving effect to these principles
12.2.1 Acts that are self-sufficient and therefore do not require alignment
with the Bill
12.2.1.1 The Immigration Act 13 of 2002
According to section 1 of this Act, the word "spouse" includes a person involved
in "a permanent homosexual or heterosexual relationship as prescribed." The
word "prescribed" in turn means "prescribed by regulation." The regulation in
question was published in the Government Gazette on 27 June 2005.629 The
comprehensive nature of this regulation630 makes it clear that it is unnecessary to
align this Act with the Domestic Partnerships Bill.
629 GN 616 in Gazette no 27725.
630
"3. A permanent homosexual or heterosexual relationship contemplated in paragraph (b) of the
definition of 'spouse' in section 1(1) of the Act shall be a relationship proved by the parties-
(a) in the case of a relationship between a foreigner and a citizen or permanent resident,
irrespective of where the relationship was concluded, or between two foreigners where
the relationship was concluded inside the Republic-
(i) by submitting an affidavit signed by both parties attesting-
(aa) to the exclusion of any other person to the spousal relationship; and
(bb) that neither of the parties is at the relevant time a partner to a
marriage;
(ii) by proving a legal divorce or the death of a spouse in the event of a preceding
marriage; and
(iii) by submitting documentation proving cohabitation and the extent to which the
related financial responsibilities are shared by the parties; or
(b) in the case of a relationship concluded between two foreigners in a foreign country, by
submitting an official recognition thereof issued by the authorities of the relevant
country, in addition to the documentation contemplated in paragraph (a)(i), (ii) and
(iii)."
713
12.2.1.2 The Domestic Violence Act 116 of 1998
It is submitted that this Act's thorough and contextualised definition of "domestic
relationship,,631 in section 1 negates the need for a cross-reference to the
Domestic Partnerships Bill.
12.2.1.3 The Rental Housing Act 50 of 1999
The broad and neutral wording adopted by the non-discrimination provision of
this Act (section 4(1 ))632does not appear to evince any need for a closer link
between this Act and the Domestic Partnerships Bill.
12.2.1.4 The Diplomatic Immunities and Privileges Amendment Act 35 of
2008
Once enacted, the Conventions to which the Diplomatic Immunities and
Privileges Act 37 of 2001 relates will regard a "life partner" as being a "member of
a family" or, where applicable, as "spouses and [relative] dependant." Such a
partner must, however, be "officially recognised as such by the sending State or
631
"'[D]omestic relationship' means a relationship between a complainant and a respondent in any
of the following ways:
(a) they are or were married to each other, including marriage according to any law,
custom or religion;
(b) they (whether they are of the same or of the opposite sex) live or lived together in a
relationship in the nature of marriage, although they are not, or were not, married to
each other, or are not able to be married to each other;
(c) they are the parents of a child or are persons who have or had parental responsibility
for that child (whether or not at the same time);
(d) they are family members related by consanguinity, affinity or adoption;
(e) they are or were in an engagement, dating or customary relationship, including an
actual or perceived romantic, intimate or sexual relationship of any duration; or
(f) they share or recently shared the same residence ..."
632
"In advertising a dwelling for purposes of leasing it, or in negotiating a lease with a prospective
tenant, or during the term of a lease, a landlord may not unfairly discriminate against such
prospective tenant or tenants, or the members of such tenant's household or the visitors of such
tenant, on one or more grounds, including race, gender, sex, pregnancy, marital status, sexual
orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture,
language and birth."
714
the United Nations, a specialised agency or an international organization." This
Act's inherent recognition requirement circumvents the need for any reference to
the Domestic Partnerships Bill.
12.2.1.5 The Maintenance Act 99 of 1998
It is submitted that the wording of this Act in as far as it states that it applies "to
the legal duty of any person to maintain any other person, irrespective of the
nature of the relationship between those persons giving rise to that duty,,633is
clear and unambiguous and therefore requires no amendment.
12.2.2 Cases of uncertainty
The Older Persons Act 13 of 2006 is an example of an Act which, due to the
possible uncertainty regarding the way in which the Domestic Partnerships Bill
will be interpreted, is possibly best left unaffected by the Bill. Section 21(3)(b)(i)
of this Act makes an unqualified reference to the word "partner" as one of a class
of persons who may under certain circumstances consent to the admission of an
older person to a residential facility. Although it would normally be suggested
that the word "partner" is too vague and that amendment is required, it is
submitted that this specific Act must be overlooked. This is so because within
the context of relationships involving older persons the word "partner" must take
on a nuanced meaning, so that the requirement of intimacy, for example, cannot
be viewed as an essential requirement of such a relationship.634 Furthermore, it
stands to reason that non-conjugal "care partnerships" will be more prevalent in
relationships involving older persons than those in which younger persons are
633 Section 2(1).
634 An example where the specific context of older persons was considered within the context of a
broader argument appears in National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs 2000 (2) SA 1 (CC) where, in dismissing the argument that the ability to procreate was a
defining characteristic of all conjugal relationships, Ackermann J stated that such an argument
was "demeaning to couples who commence such a relationship at an age when they no longer
have a desire for sexual relations" (at par [51]).
715
involved.635 Although it may be true that the Domestic Partnerships Bill in its
current guise does not appear to preclude such relationships from qualifying as
unregistered domestic partnerships.F" the position is unclear in view of the fact
that the South African Law Reform Commission's 2006 Report categorically
stated that such relationships were to be excluded from the ambit of the
legislation proposed by the Comrnlsslon.F" Therefore, although it was submitted
earlier in this Chapter that such relationships should indeed qualify for the
purposes of the Bill, the situation remains uncertain. Viewed in this light, it is
submitted that the status quo regarding the unqualified reference to "partner" in
the Older Persons Act should be maintained so as to reinforce the impression
that intimacy is not required.
12.2.3 Acts that should be aligned with the Bill
As seen in Chapter 6, quite a number of Acts currently provide piecemeal
recognition to the relationships between unmarried couples, with the result that
the Acts specifically mentioned in the two preceding paragraphs constitute only a
handful of the total group. The general principles outlined above dictate that the
remaining Acts must be aligned with the provisions of the Domestic Partnerships
Bill. This will, in the main, require a process of "cross-pollination" between these
Acts and the Bill so that all of these Acts are firstly amended so as to make use
of the term "domestic partnership" coupled with a cross-reference to the Bill, and
secondly that the criteria in the Bill must be used in order to ascertain whether or
not an unregistered domestic partnership exists for the purposes of each Act. In
the light hereof, the following remedial legislative action is recommended:
(i) The insertion of the words "domestic partner" as well as the insertion of a
definition of that term which should read '''domestic partner' means a
partner in a registered or unregistered domestic partnership in accordance
635
See SALRC2003: 301 where a number of examples are provided.
636
See 3.2 above.
637
See SALRC2006: 384 - 387.
716
with the Domestic Partnership Act ... " is recommended in the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007;638the Employment Equity Act 55 of 1998;639the Basic Conditions of
Employment Act 75 of 1997;640the Unemployment Insurance Act 63 of
2001 ;641the Government Employees Pension Law, 1996;642the Medical
Schemes Act 131 of 1998;643and certain Acts in terms of which Boards
are created or Commissioners are appointed.P"
(ii) The insertion of the words "domestic partnership" as well as the insertion
of a definition of that term which should read "domestic partnership'
638 Replacement of the word "life" with the word "domestic" before "partner" in the definition of
"interested person" in section 27 so as to read "means any person who has a material interest in
the well-being of a victim, including a spouse, same sex or heterosexual permanent domestic
partner, parent, guardian, family member, care giver, curator, counsellor, medical practitioner,
health service provider, social worker or teacher of such victim" and the insertion of the
proposed definition of "'domestic partner" into that section.
639 The insertion of the word "domestic" before the word "partner" in the definition of "family
responsibility" in section 1 so as to read "means the responsibility of employees in relation to
their spouse or domestic partner, their dependent children or other members of their immediate
family who need their care or support" and the insertion of the proposed definition of '''domestic
partner" in that section.
640
The replacement of the word "life" with the word "domestic" before the word "partner" in
section 27(2)(c)(i) as well as the insertion of the definition of "domestic partner" in section 1 of
the Act.
641
The replacement of the word "life" with the word "domestic" in section 30(1) and 30(2)(a) of the
Act, and the insertion of the suggested definition of '''domestic partner" in section 10f the Act.
642
The deletion of the words "life partner (including a same sex life partner)" in the definition of
"spouse" in section 1 of Schedule 1 of the Law and the replacement of these deleted words by
"domestic partner", coupled with an insertion of the definition of "domestic partner" in that
section.
643
The insertion of the word "domestic" before "partner" in the section 1 definition of "dependant",
and the insertion of the definition of "domestic partner" in that section.
644
The replacement of the word "life" with the word "domestic" before the word "partner" in:
Sections 9(4) and 11(5)(b) of the South African Civil Aviation Authority Act 40 of 1998 (and, if and
when the latter Act is repealed by the Civil Aviation Authority Act 13 of 2009, similar
amendments to section 24(2); 84(1) and 93 of that Act); sections 10(2) and 15(9) of the Road
Traffic Management Act 20 of 1999; sections 3(7) and (8) and 7(5) of the National Lotteries Act
57 of 1997; sections 21(3)(a), 21(3)(d) and 47(3)(b),(c) and (d) of the Land and Agricultural
Development Bank Act 15 of 2002; section 8(9) of the National Nuclear Regulator Act 47 of 1999;
section 6(3)(c), 6(4) and 6(6) of the National Energy Regulator Act 40 of 2004; section 8(10)(b) of
the National Energy Act 34 of 2008; section 9 of the Construction Industry Development Board
Act 38 of 2000 and section 8(9) of the National Railway Safety Regulator Act 16 of 2002. In
addition, the definition of "domestic partner" (in the format proposed in the main text above)
should be inserted into all of these Acts.
717
means a registered or unregistered domestic partnership in accordance
with the Domestic Partnership Act is recommended in the
Compensation for Occupational Injuries and Diseases Act 130 of 1993.645
(iii) The insertion of the words "registered domestic partnership" as well as the
insertion of a definition of that term which should read '''registered
domestic partnership' means a registered domestic partnership in
accordance with the Domestic Partnership Act ... " is recommended in the
Identification Act 68 of 1997.646
(iv) Certain Acts require less generic amendments. These are the following:
The Judges' Remuneration and Conditions of Employment Act 47 of
2001 ;647the Pension Funds Act 24 of 1956;648and the Special Pensions
Act 69 of 1996.649
645
In par (c) of the definition of "dependant of an employee" in section 1 of the Act, the words "as
husband and wife" should be deleted and the words "living in a domestic partnership" should be
inserted, so that paragraph (c) henceforth reads "if there is no widow or widower referred to in
paragraph (a) or (b), a person with whom the employee was at the time of the employee's death
living as hussaRs aRS wife in a domestic partnership." (It is proposed that the "living with"
requirement should be retained in view of principle 2 mentioned in 12.1 above which requires
the specific requirements of the Act to be respected.) In addition, the definition of "'domestic
partnership" as proposed above should be inserted into section 1 of the Act.
646
Section 8(e) of this Act must be amended in order to require the particulars of a partner to a
registered domestic partnership to be included in the population register. The unnecessary
reference to "marriage register" should also be amended. It is interesting to note that the
amendment of this subsection was suggested by the SALRCin its 2003 Discussion Paper (see note
13 in Annexure D), but was apparently overlooked in both the 2006 Report (at 328) as well as in
the 2008 Bill. The amended section 8(e) should read as follows: "[T)he particulars of his or her
marriage or registered domestic partnership contained in the relevant ffiarriage register or other
documents relating to the contracting of his or her marriage or registered domestic partnership,
and such other particulars concerning his or her marital status as may be furnished to the
Director-General ..." In addition, as proposed in the main text above, the definition of
"registered domestic partnership" should be inserted into section 1 of the Act.
647
It is proposed the definition of "partner" should be amended to "domestic partner" and that the
definition itself should be amended to read: '''domestic partner' means only one person with
whom a Constitutional Court judge or judge, who is not legally married, is involved in a
permanent heterose)(ual or saffie Sel( life l3artRershil3 registered or unregistered domestic
partnership in accordance with the Domestic Partnerships Act ... -
(a) in which the Constitutional Court judge or judge and the person concerned
have undertaken reciprocal duties of support; and
718
(v) Tax legislation
In order to avoid the possibility of the definition of "spouse" in the Transfer Duty
Act,650 the Income Tax Act 651 and the Estate Duty Act 652 from being found to be
unconstitutional, the Taxation Laws Amendment Act 5 of 2001 broadened the
definition of this word in all three Acts as from 20 June 2001. Although these
new definitions contain minor variations, the gist of this development can be
illustrated by the Transfer Duty Act 653 which now defines "spouse" to include "the
partner of such person-
(a) in a marriage or customary union recognised in terms of the laws of the
Republic;
(b) in a union recognised as a marriage in accordance with the tenets of any
religion; or
(c) in a same-sex or heterosexual union which the Commissioner is satisfied is
intended to be permanent:
(b) which is, for the purposes of this Act, registered as such with the Director-
General: Justice and Constitutional Development in accordance with the
regulations made under section 13..."
648 In this Act, it is recommended that the definition of "spouse" should be amended to read "means
a person who is the permanent life partner registered or unregistered domestic partner or spouse
or civil union partner of a member in accordance with the Domestic Partnerships Act, ..., the
Marriage Act, 1961 (Act 68 of 1961), the Recagnition of Customary Marriages Act, 1998 (Act 68
of 1997), or the Civil Union Act, 2006 (Act 17 of 2006), or the tenets of a religion ..." (italics
added).
649 In section 31(2)(a) of this Act, it is recommended that the definition of "spouse" be amended so
that subsection (a) reads: '''spouse' mentioned in subsection (1) 'marriage relationship' means-
(i) a marriage;
(ii) a union contracted in accordance with customary law or which is
recognised as marriage in accordance with the tenets of any religion;
(iii) a continuous cohabitation in a hOR'loselHJalor heterosel(~al registered
or unregistered domestic partnership in accordance with the Domestic
Partnerships Act ... for a period of at least 5 years."
650 40 of 1949.
651 58 of 1962.
652 45 of 1955.
653 40 of 1949.
719
Provided that a marriage or union contemplated in paragraph (b) or (c) shall, in the
absence of proof to the contrary, be deemed to be a marriage or union without
community of property.
It is interesting to note that although the Acts all require the Commissioner for the
South African Revenue Service to be satisfied that the union is "permanent", the
statutes provide no guidelines according to which the Commissioner should
ascertain this fact. Furthermore, the explanatory memorandum on the amending
legislation provides no assistance in this matter as it simply regurgitates the new
definitions without further cornrnent.F" This state of affairs entails that the
Commissioner is not provided with a uniform list of criteria according to which he
is to assess the permanent status of any given union. In the light of this fact, it is
proposed that an amendment of the terminology employed by these Acts coupled
with a cross-reference to the Domestic Partnerships Bill may be desirable. To
this end, it is proposed that paragraph (c) of the definition of "spouse" in all three
of these Acts be amended to read "in a registered domestic partnership as
provided for in the Domestic Partnership Act of ... or in an unregistered domestic
partnership which the Commissioner is satisfied is permanent in accordance with
section 26 of that Act."
(vi) The suggested amendments to the Insolvency Act 24 of 1936
As seen in Chapter 6, section 21 (13)655 of the Insolvency Act was one of the first
South African legislative provisions to cater expressly for unmarried couples.
However it was also pointed out in that Chapter that the Act's gender-biased
654
See the "Explanatory memorandum on the Taxation Laws Amendment Bill, 2001" (available at
http://www.sars.gov.za/home.asp?pid=2631 accessed on 25 May 2009) at pages 12 -15.
655
This provision reads: "In this section the word 'spouse' means not only a wife or husband in the
legal sense, but also a wife or husband by virtue of a marriage according to any law or custom,
and also a woman living with a man as his wife or a man living with a woman as her husband,
although not married to one another."
720
wording may be unconstitutional, and that this result should best be avoided by
an amendment to the statute.656
(vii) The Independent Media Commission Act 148 of 1993
Section 6(2) of this Act states that the word "spouse" must be interpreted so as to
include a "de facto spouse." This concept is however not further defined. In view
hereof it is suggested that these words should be replaced by "registered or
unregistered domestic partner in accordance with the Domestic Partnerships Act
(viii) The National Credit Act 34 of 2005
As seen in Chapter 6, section 20(2)(b) of this Act is problematic in that the
wording "spouse, partner, or associate" (in reference to a person who is
disqualified from being a member of the National Credit Regulator established in
terms of that Act) creates uncertainty as to whether the word "partner" is to be
interpreted as referring to a partner in the commercial or domestic senses.65?
Most of the statutes that govern the creation and membership of similar Boards
(see 3.2.8 in Chapter 6) clearly indicate that a partner in the latter sense is
intended.658 However, in view of the fact that Act 34 of 2005 deals with
consumer credit largely regulated by the law of contract.f" it was suggested in
Chapter 6 that the safest option would be to assume that both of these
656 In 3.2.7 it was proposed that the words "woman living with a man as his wife or a man living with
a woman as her husband, although not married to one another" be deleted and replaced with
the words "person who lives with the insolvent in a permanent domestic partnership." In
addition, a definition of "domestic partnership" that cross-refers to a registered or unregistered
domestic partnership in accordance with the Domestic Partnership Act was proposed.
657 Compare section 40(2)(d) of the Act: "(d) 'associated person'- (i) with respect to a credit provider
who is a natural person, includes the credit provider's spouse or business partners ..." (emphasis
added).
658 See for example sections 16(f), 24(1), 84 93 and 98 of the yet-to-be-enacted Civil Aviation
Authority Act 13 of 2009 where a clear distinction between partners in these senses is
maintained.
659 See Mould 2008: 109 et seq for an analysis of the role played by the law of contract in giving
effect to this Act.
721
interpretations are permissible. In order finally to clarify this matter it is
suggested that the words "domestic or business" be inserted before the word
"partner." In addition, a definition of "domestic partner" must also be inserted in
section 1 of the Act as meaning "a partner in a registered or unregistered
domestic partnership in accordance with the Domestic Partnerships Act ... ,,660
(ix) The Refugees Act 130 of 1998
A definition of "spouse" stands to be inserted into this Act by the Refugees
Amendment Act 33 of 2008.661 Once amended, the definition will include "a
permanent homosexual or heterosexual relationship" as prescribed by the
regulations under the Act. It is submitted that these regulations should be
aligned with domestic partnerships legislation.
(x) The Prescription Act 68 of 1969
As seen in the introduction to Chapter 5, this Act currently makes no provision for
domestic partners. This fact, coupled with the fact that sections 3(1 )(b), 8 and
13(1)(c) of the Act apply only to spouses married out of community of propertl62
(and bearing in mind that a registered domestic partnership is by default out of
community of property)663highlights the need for the provisions in question to be
amended so as to provide for registered domestic partners.664 In addition, a
The relevant section will henceforth read as follows: "20(2) A person may not be a member of
the Board if that person-
(a)
(b) personally or through a spouse, domestic or business partner or associate-
(i) has or acquires a direct or indirect financial interest in a registrant; or
(ii) has or acquires an interest in a business or enterprise, which may conflict or
interfere with the proper performance of the duties of a member of the
Board ...."
661
This Act was assented to on 21 November 2008 but is yet to come into operation.
662
Sinclair and Heaton 1996: 421 (note 17).
663 Clause 7.
664
Section 3(1)(b) should be amended thus: "(b) the person in favour of whom the prescription is
running is outside the Republic, or is married to or in a registered domestic partnership with the
person against whom the prescription is running, or is a member of the governing body of a
722
definition of "registered domestic partnership" should be inserted into the
Prescription Act.665
12.2.4 An Act that requires special attention: The Children's Act 38 of
2005
In paragraph 4 of Chapter 5 it was pointed out that the Children's Act needs to be
amended as far as its provisions relating to children conceived by artificial
fertilisation was concerned, and that it was necessary for the Act to be
terminologically aligned with the Domestic Partnerships Bill regarding the
concept of a "domestic partnership." In this regard, particular emphasis was
placed on aligning section 231 (dealing with persons who may adopt a child) of
the Act with the Domestic Partnerships Bill,666 as well as on the recommendation
that definitions of "domestic partnership", "domestic partner" and "unregistered
domestic partnership" should be inserted into the Act.667 These amendments
were, however, only the tip of the proverbial iceberg as far as children are
concerned, as both pieces of legislation require a number of further amendments
in order for the aims of both to be realised. Three major problems present
themselves, which will be discussed in the paragraphs (i) - (iii) that follow. In the
final instance, a number of less vital amendments will be recommended in
paragraph (iv).
juristic person against whom the prescription is running ...", Section 8 merely makes the
provisions of (inter alia) section 3 applicable to the acquisition and extinction of servitudes by
prescription and therefore requires no amendment. Section 13(l)(c) should however be
amended to read: "the creditor and debtor are married to each other or are partners in a
registered domestic partnership ..."
665 '''[R)egistered domestic partnership' means a registered domestic partnership in accordance with
the Domestic Partnership Act ..."
666 In its current form section 231 refers to an (undefined) "domestic life-partnership".
667 '''[D)omestic partner' means a partner to a registered or unregistered domestic partnership in
accordance with the Domestic Partnerships Act, ..."; '''domestic partnership' means a registered
or unregistered domestic partnership in accordance with the Domestic Partnerships Act, ..." and
'''unregistered domestic partnership' means an unregistered domestic partnership in accordance
with the Domestic Partnerships Act, ... "
723
(i) The interaction between the definition of "child of a domestic partnership"
in the Bill, the position of the male partner in a registered domestic
partnership and the position of unmarried fathers in terms of the Children's
Act 38 of 2005
According to clause 1 of the Domestic Partnerships Bill, a "child of a domestic
partnership" includes:
(a) any child born as a result of sexual relations between the domestic partners;
(b) any child of either domestic partner;
(c) any child adopted by the domestic partners jointly; or
(d) any other child who was a dependant of the domestic partners-
(i) at the time when the domestic partners ceased to live together;
(ii) if the domestic partners had not ceased to live together, at the time
immediately before an application under this Act; or
(iii) at the date of the death of one of the domestic partners ...
As can be seen from this definition, paragraph (b) of the definition of "child of a
domestic partnership" in the Domestic Partnerships Bill includes "any child of
either domestic partner" as constituting such a child. While this provision may
seem fairly innocuous at first reading, the difficulty underlying it can be illustrated
by the following set of facts:
Assume that A (male) and B (female) live together for a period of time, during
which a child (C) is born to them. As they are unmarried, this immediately
implies that B (as the biological mother of the child) automatically has full
parental responsibilities and rights in respect of C,668while A, as an unmarried
biological father, must comply with section 21 of the Children's Act in order to
acquire such responsibilities and rights. However, assume that shortly after C's
birth A and B's relationship comes to an end, and within a few months A has
668
Section 19 of the Children's Act 38 of 2005.
724
entered into a registered domestic partnership with Z (another female woman).
According to paragraph (b) of the current definition of "child of a domestic
partnership", C (as A's biological child) will qualify as a child of the domestic
partnership which exists between A and Z-a result which would obviously be
ludicrous in view of the fact that no legal bond exists between Zand C.
The history behind the inclusion of this definition provides for interesting reading.
The first reference to a definition of this kind appeared in the South African Law
Reform Commission's 2003 Discussion Paper, where a definition of "child of an
intimate partnership" was included in both options 1 and 2 of annexure E in which
the Commission's proposed unregistered partnership legislation was
contained.669 In both instances, the definition of "child of an intimate partnership"
contained one sole footnote reference, namely to the New South Wales
(Property) Relationships Act of 1984,670 a fact which would lead any reader
thereof to conclude that the Commission's proposed definition was gleaned from
the latter Act. A comparison with the definition in the New South Wales Act
however reveals not only that there are substantial differences between the
definition in that Act and the one proposed by the Comrmssion.?" but also, and
669 Both definitions were identical: "'child of an intimate partnership' means-
(a) any child born as a result of sexual relations between the intimate partners; or
(b) any child of either intimate partner; or
(c) any child adopted by one or both of the intimate partners jointly; or
(d) any other child who was a member of the family of the intimate partners-
(i) at the time when the intimate partners ceased to live together; or
(ii) if at that time the intimate partners had not ceased to live together, at the time
immediately before an application under this Act; or
(iii) at the date of the death of one of the intimate partners ..."
670 See SALRC2003: 379 and 402.
671 According to section 5(3) of the New South Wales (Property) Relationships Act of 1984: "A
reference in this Act to a child of the parties to a domestic relationship is a reference to any of
the following:
(a) a child born as a result of sexual relations between the parties,
(b) a child adopted by both parties,
(c) where the domestic relationship is a de facto relationship between a man and a woman,
a child of the woman:
(i) of whom the man is the father, or
(ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to
be the father, except where such a presumption is rebutted,
725
more particularly, that the New South Wales Act contains no unqualified
reference to such a child including "any child of either intimate partner.,,672
Further research into Acts with similar wording led to New Zealand's Property
(Relationships) Act 1976 No 166 according to which children of civil unions, de
facto relationships and marriage all include "any other child (whether or not a
child of either [partner or spouse]) who was a member of the family of the
[partners or spouses] ... ,,673 While the wording "a child of either [partner or
(cl) where the domestic relationship is a de facto relationship between two women, a child
of whom both of those women are presumed to be parents by virtue of the Status of
Children Act 1996,
(d) a child for whose long-term welfare both parties have parental responsibility (within the
meaning of the Children and Young Persons (Care and Protection) Act 1998 )."
672
An analysis of the comparative survey in the 2003 Discussion Paper (Chapter 6) reveals that the
Commission only made specific reference to the fact that the New South Wales (Property)
Relationships Act "introduced limited changes for parenting relationships by defining children of
a domestic relationship as including 'a child for whose long-term welfare both parties have
parental responsibility'" (see SALRC2003: 136). The only other paragraph that appears in the
Commission's proposed definition that wholly corresponds with the Australian Act is paragraph
(a) namely "a child born as a result of sexual relations between the parties." It is therefore clear
that the Commission's footnote references as they appear on pages 329 and 402 of annexure E
are misleading.
673
See section 2 of the Act: "child of the civil union-
(a) means any child of both civil union partners; and
(b) includes any other child (whether or not a child of either civil union partner) who was a
member of the family of the civil union partners-
(i) at the time when they ceased to live together; or
(ii) at the time immediately before an application under this Act, if at that time
they had not ceased to live together; or
(iii) at the date of the death of 1 of the civil union partners
child of the civil union: this definition was inserted, as from 26 April 2005, by section 3(4)
Property (Relationships) Amendment Act 2005 (2005 No 19).
child of the de facto relationship-
(a) means any child of both de facto partners; and
(b) includes any other child (whether or not a child of either de facto partner) who was a
member of the family of the de facto partners-
(i) at the time when they ceased to live together; or
(ii) at the time immediately before an application under this Act, if at that time
they had not ceased to live together; or
(iii) at the date of the death of 1 of the de facto partners
child of the marriage-
(a) means any child of both spouses; and
(b) includes any other child (whether or not a child of either spouse) who was a member of
the family of the spouses-
(i) at the time when they ceased to live together; or
(ii) at the time immediately before an application under this Act, if at that time
they had not ceased to live together; or
(iii) at the date of the death of lof the spouses; and
726
spouse]" may resemble paragraph (b) of the definition proposed by the South
African Law Reform Commission, it immediately becomes clear that there is an
important difference between the two' in that the New Zealand Act qualifies the
term by requiring such a child to be a member of the family of those partners or
spouses.V"
The conclusion that can be drawn from this brief analysis is that despite the
impression created in the Discussion Paper, paragraph (b) of the definition
proposed by the Commission does not appear to have been included on the
basis of its being recognised in any comparable jurisdiction. Nevertheless, this
definition was retained in substance'?" in the Commission's 2006 Report in which
a "Recommended Domestic Partnerships Act" was proposed.676 From there, it
was included verbatim in the first Civil Union Bill of August 2006,677and later
transplanted to the draft Domestic Partnerships Bill of 2008.
It is submitted that this strange state of affairs highlights the necessity for
paragraph (b) to be qualified in order for the definition to be tenable. Within the
context of the example provided above, what is required is the existence of some
or other bond between Zand C before the latter truly can be regarded as being a
(c) if the marriage was immediately preceded by a de facto relationship or civil union
between the spouses, includes any child of the de facto relationship or civil union
child of the marriage: paragraph (b) of this definition was amended, as from 26 April 2005, by
section 3(4) Property (Relationships) Amendment Act 2005 (2005 No 19) by inserting the words
"or civil union" after the word "relationship" in both places it appears."
674
It is important not to lose sight of this qualification. For example, in a pamphlet prepared by the
New Zealand Law Society dealing with the division of relationship property in terms of the
Property (Relationships) Act, the term "child of the relationship" is described as "a wide-ranging
definition-it includes not only any child the couple have together but a/so any child of either
partner and any other child who is a member of the family when the couple ceased to live
together or at the date of death of a partner" (emphasis added). A hasty reading of this
description may lead one to overlook the qualification regarding family membership. The
pamphlet is available at
http://www.communitylawtaranaki.org/downloads/Family/Dividing%20up%20Relationship%20P
roperty%20NZLS%20Pamphlet.pdf (accessed on 6 June 2009).
675 The definition was altered to refer to "child of a domestic partnership", and all other references
to "intimate" in the 2003 definition were removed.
676 See Annexure E.
677 [B 26-2006).
727
"child of the domestic partnership" that exists between A and Z. Furthermore,
although much of the Children's Act is not yet in operation, it is submitted that the
suggested insertion into the Bill must align itself with the applicable provisions of
this Act. In order to achieve both of these goals it is submitted that the following
be inserted into paragraph (b):
"Child of a domestic partnership" includes-
(al
(bl any child of either domestic partner {who has been adopted by the
other domestic partner or in respect of whom such other domestic
partner has otherwise acquired parental responsibilities and rights in
accordance with the Children's Act 38 of 2005; or]
(cl
A further benefit of this amendment is that it will not only accomplish the two
goals mentioned above, but will also serve to align the Bill with international
trends.678
Unfortunately, the difficulties caused by the definition of "child of a domestic
partnership" are not confined to those created by paragraph (b) thereof. The
discussion that follows will illustrate the reasons for this assertion.
(ii) The interaction between the Children's Act 38 of 2005 and the Domestic
Partnerships Bill, 2008 regarding children conceived by artificial
fertilisation and children born to a surrogate mother
Clause 17 of the draft Bill is entitled "Children of registered partners of opposite
sex" and it states the following:
678
See the definitions that currently appear in the Oceanic legislation quoted in notes 671 and 673
above.
728
Where a child is born into a registered domestic partnership between persons of the
opposite sex, the male partners [sic) in the registered domestic partnership is deemed to
be the biological father of that child and has the legal rights and responsibilities in
respect of that child that would have been conferred upon him if he had been married
to the biological mother of the child.679
This section was included by the South African Law Reform Commission as it
was "concomitant with the formal commitment of registered partners," and was
clearly intended to refer to children "born to the female registered partner.,,680
However, it is submitted that neither clause 17 of the Bill nor its definition clause
succeeds in conveying this intention, as no definition of the concept of a child
"born into" a domestic partnership is to be found in the Bill. Indeed, the only
definition which contains a reference to "child" is the definition of "child of a
domestic partnership", (referred to in (i) above) which is defined in clause 1 of the
Bill as including:
(a) any child born as a result of sexual relations between the domestic partners;
(b) any child of either domestic partner;
(c) any child adopted by the domestic partners jointly; or
(d) any other child who was a dependant of the domestic partners-
(i) at the time when the domestic partners ceased to live together;
(ii) if the domestic partners had not ceased to live together, at the time
immediately before an application under this Act; or
(iii) at the date of the death of one of the domestic partners ...
It is unclear whether this definition is to be referred to in order to determine which
children will qualify as children who are "born into" registered domestic
partnerships for the purposes of clause 17. This uncertain situation is only made
more confusing by the fact that the heading to clause 17 of the Bill is entitled
679 Emphasisadded.
680 See SALRC 2006: 364.
729
"Children of registered partners of opposite sex",681which, it may be argued,
serves to indicate that clause 17 indeed requires a cross-reference to the
definition of "child of a domestic partnership,,682in clause 1.
A further analysis of the definition in clause 1 reveals a number of additional
difficulties with the definition in its current form. The first is that, while it is self-
evident that a child "born into" a domestic partnership must of necessity include a
child born as a result of sexual relations between the domestic partners
(paragraph (a)), there appears to be no reason why a child conceived by way of
artificial fertilisation or born as result of a valid surrogacy agreement should not
also qualify as a child that is "born into" that domestic partnership. The definition
in clause 1 however contains no direct reference to such children. The only
possibility which may permit the inclusion of such children is paragraph (b) of the
definition, namely "any child of either domestic partner," but, as has already been
seen in (i) above, this paragraph cannot be retained in its current form. A further
difficulty is that it is also self-evident that a child who falls into paragraph (c) of
the definition (i.e. a child adopted by the partners jointly) could not be regarded
as a child "born into" the domestic partnership. Furthermore, with regards to
paragraph (d) of the definition (i.e. any other child who was a dependant of the
domestic partners), there is no wording in that paragraph that requires such a
child to be born of the female domestic partner.
The preceding difficulties arising from the definition of "child of a domestic
partnership" serve to indicate two important facts, namely, first, that the definition
cannot be used in order to ascertain which children are "born into" a domestic
partnership for the purposes of clause 17, with the result that the Bill requires the
insertion of a specific definition pertaining to children "born into" domestic
partnerships. Secondly, the definition of "child of a domestic relationship" must in
681
Emphasis added.
682
Emphasis added.
730
principle be retained, but extended in order to provide for certain categories of
children which it currently appears to exclude.
This notwithstanding, it is crucial to note that even if these amendments were to
be brought about, they would be meaningless unless section 40 of the Children's
Act 38 of 2005 were amended in the manner suggested in Chapter 5.683 To
illustrate: Even if a definition of "child born into a domestic partnership" that
makes specific provision for a child conceived by artificial fertilisation is inserted
into clause 1 of the Domestic Partnerships Bill, a problem presents itself in that
section 40(2) of the Children's Act 38 of 2005 (in its current form) states that if
any woman (other than a surrogate mother) is fertilised artificially any such child
"must for all purposes be regarded to be the child of that woman.,,684 This
immediately entails that such a woman, whether married or unmarried, has full
parental responsibilities and rights in respect of that child according to section 19
of the Act. If she is involved in a life partnership with another man, section 21 of
683
The amendment proposed in 4.3 in Chapter 5 (words in italics) was the following:
"Rights of child conceived by artificial fertilisation
(1)
(a) Whenever the gamete or gametes of any person other than a [ ...) person or his
or her spouse or permanent domestic partner have been used with the consent
of both such spouses or permanent domestic partners for the artificial
fertilisation of one spouse or permanent domestic partner, any child born of
that spouse or permanent domestic partner as a result of such artificial
fertilisation must for all purposes be regarded to be the child of those spouses
or permanent domestic partners: Provided that this subsection shall not be
interpreted in such a way as to include a surrogate motherhood agreement.
(b) For the purpose of paragraph (a) it must be presumed, until the contrary is
proved, that both spouses or permanent domestic partners have granted the
relevant consent.
(2) Subject to section 296, whenever the gamete or gametes of any person have been used
for the artificial fertilisation of a woman in circumstances other than those contemplated
in subsection ita}, any child born of that woman as a result of such artificial fertilisation
must for all purposes be regarded to be the child of that woman.
(3) Subject to section 296, no right, responsibility, duty or obligation arises between a child
born of a woman as a result of artificial fertilisation and any person whose gamete has
or gametes have been used for such artificial fertilisation or the blood relations of that
person, except when-
(a) that person is the woman who gave birth to that child; or
(b) that person was the husband or permanent domestic partner of such woman at
the time of such artificial fertilisation."
684 Emphasis added.
731
the Act ("Parental responsibilities and rights of unmarried fathers") would not
apply to such a man, as he is not the biological father of the child. However, in
accordance with clause 17 of the Domestic Partnerships Bill, 2008 if they have
entered into a registered domestic partnership, that man will be deemed to be the
biological father of the child as if he had been married to the mother of the child.
Although this provision might at first appear to contradict section 40(2), it is
submitted that the two provisions can be read alongside one another.
Nevertheless, two problems arise in this regard. The first is that the deeming
provision implies that the father is regarded as being a married father, which in
turn implies that section 20 of the Children's Act applies, with the result that he
acquires full parental responsibilities and rights of such a child. The problem in
this regard is that section 40(2) of the Children's Act does not require his consent
to the artificial fertilisation of his partner.685 This could potentially imply that such
a man will be deemed to have full responsibilities and rights of a child who was
conceived without his consent. (This problem would however be remedied if
section 40(2) were to be amended as suggested in Chapter 5.)686
The second difficulty can also be illustrated by assuming that the amendments to
the definition clause of the Bill proposed above have indeed been brought about
by the Legislature.687 The problem would be that unless section 40 of the
Children's Act is amended in the manner suggested in Chapter 5,688 the
combined effect of reading this unamended section with clause 17 of the Bill
would create a totally inconsistent position with regard to all categories of
domestic partnerships (such as all-female domestic partnerships and those
685 See Heaton 2007: 3-43.
686 See note 683.
687 In other words, assuming that the definition of "child of a domestic partnership" was amended
so as to include surrogacy and artificial fertilisation and that a definition of "child born into a
domestic partnership" was inserted into clause 1 of the Bill.
688 See note 683 above.
732
involving persons who have altered their sex descriptions) as far as artificial
fertilisation and surrogacy is concerned.689
689 Scenario 1: If an opposite sex couple (M and F) were to enter into a registered domestic
partnership and a child were to be conceived as a result of F being artificially fertilised with the
sperm of a third person, the child would, by virtue of clause 17 of the Bill read with the proposed
definition of "child born into a domestic partnership" be deemed to be M's child, with the result
that he would be deemed to be the biological father of the child with full parental responsibilities
and rights as if he had been married. According to section 40(2)"of the Children's Act 38 of 2005,
the child would for all purposes be regarded as F's child. In this respect it may be assumed that
clause 17 of the Bill and section 40(2) of the Act would complement one another.
Scenario 2: However, if two female persons (F1 and F2) were to register a domestic
partnership and a child were to be conceived by the artificial fertilisation of F2 with the sperm of
an outsider, such a child would, by virtue of the proposed definition of "child born into a
domestic partnership" be regarded as a child "born into" the relationship between F1 and F2.
However the mere fact that this would be the case would not confer any rights and
responsibilities on F1, as clause 17 of the Bill could not apply due to the fact that the relationship
is not between two persons of the opposite sex. Furthermore, unless section 40 were amended
in the manner suggested in Chapter 5, section 40(1) could not apply in order to regard both F1
and F2 as being the parents of the child. In the end result, section 40(2) of the Act would imply
that the child "must for all purposes be regarded as the child of" F2 (the birth mother). This
position would prevail even if a direct biological link existed between F1 and the child, such as
where the child had been born to F2 by using the oocytes of F1 (as had occurred in J and Another
v Director General, Department of Home Affairs and Others 2003 (5) SA 621 (CC)).
Scenario 3: Assume that J was born a female person, and that J's sex description was
altered to that of a male. If J (now male) were to register a domestic partnership with a female
(F), the following possibilities could arise: If a child were conceived as a result of natural
intercourse between F and a male third person (X), J would, by virtue of clause 17 of the Bill, be
deemed to be the biological father of the child with all the legal rights and responsibilities in
respect of the child as if he were married to F. If he rebutted this presumption (for example by
proving that he was incapable of procreating), section 21 of the Children's Act would apply to X.
In the alternative, if a child were to be conceived as a result of F being artificially fertilised with
the sperm of a third person, the child would, by virtue of clause 17 of the Bill read with the
proposed definition of "child born into a domestic partnership" be deemed to be J's child, with
the result that he would be deemed to be the biological father of the child with full parental
responsibilities and rights as if he had been married. As far as F was concerned, section 40(2) of
the (non-amended) Children's Act 38 of 2005 would entail that the child would for all purposes
be regarded as F's child. In this respect it may appear that clause 17 of the Bill and section 40(2)
of the Act would complement one another as in the first scenario.
Scenario 4: Assume that K was born male, and that K's sex description was later altered to
that of a female. A few years later K (now female) registers a domestic partnership with a male
(M). In such a case, despite the fact that the union between Kand M is a heterosexual registered
domestic partnership, clause 17 of the Bill could not apply to K as she is no longer legally
regarded as being a male partner. Assuming that K and M enter into a surrogate motherhood
agreement with a third (female) person (Z), Chapter 19 of the Children's Act would regulate the
position and the commissioning parents (K and M) would, where apposite, be regarded as the
parents of the child. In the absence of a surrogacy agreement, Z would, by virtue of section 40(2)
of the Act, be regarded as being the child's parent. If the child were conceived by natural
intercourse between M and Z, such a child could not (provided that paragraph (b) of the
definition of "child of a domestic partnership" has been amended as earlier proposed) be
regarded as being "a child of" the registered domestic partnership between K and M. Regardless
733
It is submitted that a four-pronged approach comprising the following
developments will solve these problems and create a far more consistent legal
position:
First, section 40 of the Children's Act must be amended in the manner
suggested in Chapter 5. This amendment was discussed in detail in that
Chapter and therefore need not be repeated here.69o
The definition of "child of a domestic partnership" in clause 1 of the Bill
should be amended so as clearly to provide for children conceived by
artificial fertilisation and for those born in terms of surrogacy agreements.
Furthermore, this definition must also include the amendments suggested
in (i) above so as to remove the uncertainty created by the reference to
"child of either domestic partner" in paragraph (b) of this definition. The
amended definition (new words in italics) would now read:
"Child of a domestic partnership" includes-
(a) any child born as a result of sexual relations between the domestic
partners;
(b) any child-
(i) of either domestic partner who has been adopted by the other
domestic partner or in respect of whom such other domestic
partner has otherwise acquired parental responsibilities and
rights in accordance with the Children's Act 38 of 2005;
hereof, Z, as the biological mother of the child, would automatically have full parental
responsibilities and rights in respect of the child (section 19 of Act 38 of 2005), while section 21
of the Children's Act would apply to M.
General scenario: For the sake of interest it may also be mentioned that if the Bill should
come into operation in its current guise, the reference therein to joint adoption by domestic
partners (paragraph (c) of the definition of "child of a domestic partnership") would also be
problematic as it is dependent on the coming into operation of section 231 of the Children's Act
38 of 2005. Until this happens, joint adoptions by heterosexual life partners will not be possible.
690
See note 683 where the amended section is repeated for the sake of convenience.
734
(ii) who, subject to section 40 of the Children's Act 38 of 2005 (as
amended) was born into a domestic partnership after being
conceived by artificial fertilisation;
(iii) who, subject to Chapter 19 of the Children's Act 38 of 2005, was
born into a domestic partnership in consequence of a surrogate
motherhood agreement; or
(c) any child adopted by the domestic partners jointly; or
(d) any other child who was a dependant of the domestic partners-
(i) at the time when the domestic partners ceased to live together;
(ii) if the domestic partners had not ceased to live together, at the
time immediately before an application under this Act; or
(iii) at the date of the death of one of the domestic partners.
Third, a definition of "child born into a domestic partnership" should be
inserted into clause 1 of the Bill that not only provides for children
conceived by artificial fertilisation and for those born in terms of surrogacy
agreements, but also clearly indicates that it refers to children born to the
female domestic partner.691 Such a definition should read as follows:
"Child born into a domestic partnership" includes-
(a) any child born as a result of sexual relations between the domestic
partners;
(b) any child-
(i) who, subject to section 40 of the Children's Act 38 of 2005 (as
amended) was born into a domestic partnership after being
conceived by artificial fertilisation;
691 It is submitted that the latter insertion would give effect to the South African Law Reform
Commission's motivation behind the insertion of clause 17 in the first place: "Despite the
simplification of the registered partnership model, the Commission decided to recommend that a
male registered partner be presumed to be the biological father of a child born to the female
registered oonrer'=see SALRC2006: 364 (emphasis added).
735
(ii) who, subject to Chapter 19 of the Children's Act 38 of 2005, was
born into a domestic partnership in consequence of a surrogate
motherhood agreement; or
(d) any other child born of a female partner who was a dependant of the
domestic partners-
(i) at the time when the domestic partners ceased to live together;
(ii) if the domestic partners had not ceased to live together, at the
time immediately before an application under this Act; or
(iii) at the date of the death of one of the domestic partners.692
Finally the heading of clause 17 of the Bill must be amended so as to
reflect the fact that it refers only to children "born into" the domestic
partnership. This would entail replacing the current heading ("Children of
registered partners of opposite sex") with "Children born into registered
partnerships between persons of the opposite sex".
The benefits of these amendments become clear when their effect is considered
within the context of various hypothetical settings (set out in the footnote
reference to this sentence).693
692
Certain sections are italicised in order to emphasise them.
693
An analysis of the impact of the combined effects of the amendment of the definition clause of
the Bi" read with clause 17 thereof as we" as the amended section 40 of the Children's Act along
with Chapter 19 of the same Act (surrogate motherhood) would entail that the hypothetical legal
position would be as follows:
Scenario 1: If two female persons (F1 and F2) were to register a domestic partnership and a
child were to be conceived by the artificial fertilisation of F2, such a child would, by virtue of the
amended definitions in clause 1 of the Bi", be regarded as being a child born of the domestic
partnership. However, as the registered partnership would not exist between two persons of the
opposite sex, F1 would not be deemed to be the father of the child. Nevertheless, both F1 and
F2 would by virtue of the amended section 40(1)(a) of the Children's Act 38 of 2005 be deemed
to be the parents of the child provided that they both consented to the fertilisation. If not,
section 40(2) would apply, and only F2 would be the mother of the child.
Scenario 2: If two male persons (Ml and M2) registered a domestic partnership and a child
were to be born in consequence of the artificial fertilisation of Z (a female person) in terms of a
surrogate motherhood agreement, Chapter 19 of the Children's Act would regulate the position
and the commissioning parents (Ml and M2) would, where apposite, be regarded as the parents
of the child. In the absence of a surrogacy agreement, Z would, by virtue of section 40(2) of the
Act, be regarded as being the child's parent. If the child were conceived by natural intercourse
between (for example) M2 and Z, such a child could not (due to the fact that paragraph (b) of the
736
definition of "child of a domestic partnership" has been amended as earlier proposed) be
regarded as being "a child of" the registered domestic partnership between Ml and M2.
Regardless hereof, Z, as biological mother of the child, would automatically have full parental
responsibilities and rights in respect of the child (section 19 of Act 38 of 2005), while section 21
of the Children's Act would apply to M2. Due to the specific facts of the case, clause 17 of the
Domestic Partnership Bill, 2008 would have no application as far as Ml or M2 are concerned.
Scenario 3: If an opposite-sex couple (M and F) were to enter into a registered domestic
partnership and a child were conceived as a result of natural intercourse between F and a male
third person (X), M would, by virtue of clause 17 of the Bill, be deemed to be the biological father
of the child with all the legal rights and responsibilities in respect of the child as if he were
married to F. If he rebutted this presumption, section 21 of the Children's Act would apply to X.
Scenario 4: If an opposite sex couple (M and F) were to enter into a registered domestic
partnership and a child were to be conceived as a result of F being artificially fertilised with the
sperm of a third person, the child would, by virtue of clause 17 of the Bill be deemed to be M's
child, with the attendant consequences as described in the previous scenario. Furthermore, this
deeming provision would overlap with the amended section 40(1)(a) of the Children's Act, so that
both M and F would be regarded as being the parents of the child, provided that both of them
consented to the fertilisation. If M did not consent to his partner's fertilisation, section 40(2) of
the same Act would apply, with the result that only F would be regarded as being the child's
parent.
Scenario 5: Assume that J was born a female person, and that J's sex description was
altered to that of a male. If J (now male) were to register a domestic partnership with a female
(F), the same scenarios as those described in 3 and 4 above would apply (substituting "M" with
"J"] .
Scenario 6: Assume that J was born a female person, and that J's sex description was
altered to that of a male. If J (now male) were to register a domestic partnership with a male
(M), the same scenario as that described in scenario 2 above would apply (substituting "Ml" with
'T' and "M2" with "M").
Scenario 7: Assume that K was born male, and that K's sex description was later altered to
that of a female. If K (now female) were to register a domestic partnership with a male (M),
clause 17 of the Bill could not apply to K as, despite the fact that the union between K and M is
regarded as being a heterosexual one, she is no longer legally regarded as being a male partner.
Assuming that K and M entered into a surrogate motherhood agreement with a third (female)
person (Z), Chapter 19 of the Children's Act would regulate the position and the commissioning
parents (K and M) would, where apposite, be regarded as the parents of the child. In the
absence of a surrogacy agreement, Z would, by virtue of section 40(2) of the Act, be regarded as
being the child's parent. If the child were conceived by natural intercourse between M and Z,
such a child could not (due to the fact that paragraph (b) of the definition of "child of a domestic
partnership" has been amended as earlier proposed) be regarded as being "a child of" the
registered domestic partnership between K and M. Regardless hereof, Z, as biological mother of
the child, would automatically have full parental responsibilities and rights in respect of the child
(section 19 of Act 38 of 2005), while section 21 of the Children's Act would apply to M.
Scenario 8: Assume that K was born male, and that K's sex description was later altered to
that of a female. Assume further that K (now female) were to register a domestic partnership
with a female (F). If a child were to be conceived by the artificial fertilisation of F, such a child
would, by virtue of the amended definitions in clause 1 of the Bill, be regarded as being a child
born of the domestic partnership. However, as the registered partnership would not exist
between two persons of the opposite sex, clause 17 of the Bill would not apply and K would not
be deemed to be the father of the child. Nevertheless, both K and F would, by virtue of the
amended section 40(1)(a) of the Children's Act 38 of 2005, be deemed to be the parents of the
737
(iii) Section 21 of the Children's Act
In terms of clause 17 of the Domestic Partnerships Bill, 2008 the male partner in
a heterosexual registered domestic partnership is deemed not only to be the
biological father of a child born into that partnership, but also to have those legal
rights and responsibilities with reference to that child that he would have had if he
had been married to the child's mother.
Should the Bill be promulgated as an Act of Parliament, clause 17 will have an
important effect on the differentiation between married and unmarried fathers that
currently appears in the Children's Act. The first consequence will be that the
male partner to a registered domestic partnership between two persons of the
opposite sex will be deemed to be a married father in terms of section 20 of the
Children's ACt.694 As a consequence, section 20 would henceforth have to be
read as if all references to the word "married" included the male partner to a
heterosexual registered domestic partnership.
The second important consequence would relate to the unmarried biological
father; the position of whom has featured on a number of occasions throughout
this study.695 In this regard, it will be recalled that section 21 places such a father
in the position to acquire full parental responsibilities of his child, provided that
certain requirements are met. One of the possibilities mentioned in section 21(1)
is that a father will automatically acquire such responsibilities and rights:
child provided that they both consented to the artificial fertilisation. If not, section 40(2) would
apply, and only Fwould be the mother of the child.
694
"20 Parental responsibilities and rights of married fathers
The biological father of a child has full parental responsibilities and rights in respect of the child-
(a) if he is married to the child's mother; or
(b) if he was married to the child's mother at-
(i) the time of the child's conception;
(ii) the time of the child's birth; or
(iii) any time between the child's conception and birth."
695
See for example Chapter 4 (at 2.2.3) and this Chapter at 5.2.
738
(a) if at the time of the child's birth he is living with the mother in a permanent life-
partnership; or ...
Unless this subsection is amended, the unqualified reference to "permanent life-
partnership" will create a discrepancy between sections 20 and 21 of the
Children's Act as, on the one hand, clause 17 of the Bill will deem the male
partner to a heterosexual registered domestic partnership to be a married father,
while section 21 in its current form is wide enough also to interpret that same
person as being an unmarried father. This discrepancy can be resolved by
having recourse to the rationale behind clause 17 of the Bill which, according to
the South African Law Reform Commission, was to include the deeming
provision in consequence of the formal commitment undertaken by the registered
domestic partners. On the other hand, it is clear that section 21 of the Children's
Act was enacted on the basis of similar but opposite reasoning, namely to require
some form of a commitment from an unmarried father precisely because no
formal commitment existed between himself and the child's mother. Within the
framework of the draft Domestic Partnerships Bill, it is therefore patent that
section 21(1)(a) of the Children's Act must refer to relationships in which no
"formal commitment" has been undertaken, namely the unregistered domestic
partnership. As a consequence it is suggested that the subsection in question
must be amended to read:
(a) if at the time of the child's birth he is living with the mother in a permanent
unregistered domestic partnership; or ...
The amendment of section 21(1)(a) in this fashion immediately explains why it
was suggested in Chapter 5 that a definition of "unregistered domestic
partnership" be inserted into section 1 of the Children's Act 38 of 2005.696
696 See 4.3 where the following definition was proposed: U'[Ujnregistered domestic partnership'
means an unregistered domestic partnership in accordance with the Domestic Partnerships Act,
739
(iv) Other amendments required
A number of other less-drastic amendments are required in order to align the
Children's Act of 2005 with the Domestic Partnerships Bill. These amendments
are all based on the presumption (see the list of principles in 12.1) that no
distinction is to be made between registered and unregistered domestic
partnerships as no such distinction was recognised or available at the time of the
enactment of the Children's Act 38 of 2005. Furthermore, in contrast, for
example, with section 21 as discussed above, no distinction between such
partnerships appears to be necessary in order to give effect to the aim of each
specific provision in the list mentioned below. For these reasons it is suggested
that a simple reference to "domestic partner" or "domestic partnership" should be
facilitated by amending each of the following provisions of the Children's Act (in
each case, the words struck out are indicated as such, and words inserted are
italicised):
Section 231 (a) and (C);697
Section 242(1 )(a);698
Section 292(1 )(d);699
697
U231 Persons who may adopt child
(1) A child may be adopted-
(a) jointly by-
(i) ...,
(ii) partners in a permanent domestic Hfe-partnership; or
(iii) other persons sharing a common household and forming a permanent
family unit;
(b) by a widower, widow, divorced or unmarried person;
(c) by a married person whose spouse is the parent of the child or by a person
whose permanent domestic Hfe-partner is the parent of the child;
(d)
698
U242 Effect of adoption order
(1) Except when provided otherwise in the order or in a post-adoption agreement
confirmed by the court an adoption order terminates-
(a) all parental responsibilities and rights any person, including a parent, step-
parent or partner in a domestic hle-partnership, had in respect of the child
immediately before the adoption; ...u
699
u292 Surrogate motherhood agreement must be in writing and confirmed by High Court
(1) No surrogate motherhood agreement is valid unless-
740
Section 293 (the heading as well as subsections 1,2 and 3);700
Section 297 (subsections (1 )(c), (d) and (f));701and
Section 299(a), (b) and (C).702
(a)
(b)
(c)
(d) the surrogate mother and her husband or domestic partner, if any, are at the
time of entering into the agreement domiciled in the Republic; and ..."
700 "293 Consent of husband, wife or domestic partner
(1) Where a commissioning parent is married or involved in a permanent relationship, the
court may not confirm the agreement unless the husband, wife or domestic partner of
the commissioning parent has given his or her written consent to the agreement and
has become a party to the agreement.
(2) Where the surrogate mother is married or involved in a permanent relationship, the
court may not confirm the agreement unless her husband or domestic partner has given
his or her written consent to the agreement and has become a party to the agreement.
(3) Where a husband or domestic partner of a surrogate mother who is not the genetic
parent of the child unreasonably withholds his or her consent, the court may confirm
the agreement."
701 "297 Effect of surrogate motherhood agreement on status of child
(1) The effect of a valid surrogate motherhood agreement is that-
(a) r
(b) r
(c) the surrogate mother or her husband, domestic partner or relatives has no
rights of parenthood or care of the child;
(d) the surrogate mother or her husband, domestic partner or relatives have no
right of contact with the child unless provided for in the agreement between
the parties;
(e) ...; and
(f) the child will have no claim for maintenance or of succession against the
surrogate mother, her husband or domestic partner or any of their relatives."
702 "299 Effect of termination of surrogate motherhood agreement
The effect of the termination of a surrogate motherhood agreement in terms of section
298 is that-
(a) where the agreement is terminated after the child is born, any parental rights
established in terms of section 297 are terminated and vest in the surrogate
mother, her husband or domestic partner, if any, or if none, the commissioning
father;
(b) where the agreement is terminated before the child is born, the child is the
child of the surrogate mother, her husband or domestic partner, if any, or if
none, the commissioning father, from the moment of the child's birth;
(c) the surrogate mother and her husband or domestic partner, if any, or if none,
the commissioning father, is obliged to accept the obligation of parenthood;
(d)
741
12.2.5 Facilitating the process of "cross-pollination": Clause 26 of the Bill
The necessity for an amendment to clause 26 of the Bill was distilled from the
general principles identified regarding alignment in 12.1 above. In this regard it
was pointed out that any person, Court, tribunal or forum should, where
necessary, be required to have recourse to the factors listed in subsections 2 and
3 of clause 26 in order to determine whether an unregistered domestic
partnership exists for the purposes of any other law that deals with non-
formalised relationshlps.Ï'" To this end it is suggested that such a clause may
read:
(9) Unless the contrary intention is evident from the law in question, the provisions
of subsections (2) and (3) of this section must be considered by any person,
Court, tribunal or forum who or which is required to determine whether any
relationship constitutes an unregistered domestic partnership for the purposes
of that law.
12.3 Conclusion
The amendments to the legislation discussed in this section are essential for
these Acts to be aligned with the Domestic Partnerships Bill. However, the
preceding paragraphs also make it clear that the Bill itself also needs to be
amended in order to achieve such alignment. In this regard it was suggested
that clause 26 be amended by the insertion of a subsection which will in apposite
cases require recourse to the factors listed in that clause for the purposes of
determining whether any given relationship qualifies as an unregistered domestic
partnership for the purposes of any other law. In addition, it was seen that the
definitions in clause 1 of the Bill also need to be reconsidered.
703
Also see 11.2.7 above.
742
13. CONCLUSION
While this Chapter may have appeared to embark upon an excoriation of the Bill,
this is not the intention. The Bill is the result of a decade's worth of valuable
research conducted by the South African Law Reform Commission and the
astuteness of the integrated registered and unregistered models which it
propagates testifies to the thoroughness and foresightedness of the
Commission's research and its appreciation for contextualised and effective
legislation that it is capable of pliable application to the realities of domestic
relationships in Southern Africa. Commendable aspects of the Bill include:
1. The dual system of registered and unregistered partnerships and the
relatively reliable interplay that exists between them implies that the Bill
caters for all domestic partners, regardless of their level of sophistication.
For example, by providing for unregistered domestic partnerships, the Bill
complies with Goldblatt's704 fundamental condition that "recognition and
legal coverage of domestic partnerships should not be dependant on any
formalities (such as registration or a written contract of partnership )."
2. The general grundnorm of the Bill, namely the provision of a simplified
alternative to marriage is supported. However, as emphasised throughout
this Chapter, this simplification has limits beyond which it cannot be
pressed.
3. The imposition of a default complete separation of property regime
coupled with a redistributive competency provides a user-friendly and
uncomplicated system that is probably best-suited to registered domestic
partners. This state of affairs seems to accord with the opinion expressed
704 2003: 624.
743
by Hahl0705 who, in commenting on the range of matrimonial property
systems offered by South African law, states that:
One cannot help feeling that there is much to be said for the English system,
under which there is complete separation of goods but where the courts, on
granting a divorce or on dissolution of the marriage by death have discretionary
powers, after taking all the circumstances, from the duration of the marriage to
the financial means and earning capacity and the ages and health of the
spouses, into account, to order one of the spouses to make financial provision
for the other, be it by periodic payments, by payment of a lump sum or by a
property transfer.
4. The range of remedies offered by chapter 4 of the Bill compares
favourably with those offered by other jurisdictions that adhere to a judicial
discretion model such as New South Wales and New Zealand.
5. The Bill appears to be flexible enough to accommodate pluralistic
relationships encountered within the realm of customary law, while
maintaining the requirement of monogamy in civil marriage and civil
partnership settings.
That there are many further commendable aspects of the Bill is patent. However,
this study has shown that it is essential for non-marital unions in South Africa to
be governed by legislation modified in accordance with a robust domestic
partnership rubric and, in consequence of that rubric, calibrated with attendant
legislation. Furthermore the legislation should provide not only a domestic
partnership regime that is alternative and supplementary to marriage, but
moreover an alternative that is realistic. To this end, this Chapter has proposed
a number of modifications to the Domestic Partnerships Bill, including that:
• The preamble to the Bill be reworded;
705 1985: 312.
744
• The Bill should contain clearer guidelines as far as "care partners" are
concerned;
• The procedure prescribed by the Bill for the registration of the domestic
partnership should be revised;
• The registration requirements of the registered partnership agreement
need to be adapted, particularly with a view to binding outsiders;
• The principles pertaining to the enforcement or setting aside of a
registered partnership agreement need to be streamlined with the
prevailing principles of the law of contract;
• The termination procedure prescribed by the Bill for registered domestic
partnerships should be adapted, particularly so as to provide for the
situation where one of the partners refuses to co-operate;
• Clause 16 of the Bill should be aligned with the Divorce Act 70 of 1979 so
as better to regulate the consequences of termination as far as
maintenance and care of, and contact with children are concerned;
• The applicability of the putative spouse doctrine in a domestic partnership
setting should be considered;
li The Bill should prescribe the correct "threshold criterion" for the
recognition of a non-formalised relationship as an unregistered domestic
partnership, namely that it should be permanent;
• The requirement of a reciprocal duty of support should be prescribed as a
sine qua non of all need-based claims at the termination of an
unregistered domestic partnership;
• Chapter 4 of the Bill should, where apposite, be aligned with the pre-Civil
Union Act judgments dealing with unmarried life partners;
& The Bill should take proper cognisance of the (where necessary
contextualised) recognition of consortium omnis vitae between registered
and unregistered domestic partners and outsiders;
• Various pieces of legislation should be aligned with the Bill in its capacity
as the "legislative substructure" of the domestic partnership in South
Africa; and
745
• A cross-pollination between the Bill and other Acts (such as the Divorce
Act 70 of 1979) should be achieved.
Regarding the development of the "contextualised choice model," it is important
to take note of the progression that has taken place from the preliminary
conclusions reached in Chapter 5 to those expressed in the preceding
paragraphs. First, it was found in Chapter 5 that it cannot blindly be accepted
that parties who have never married necessarily chose not to do so and that the
choice of formalisation was often merely illusory. Second, it was found that a
distinction needed to be drawn between claims based on need (such as claims
for maintenance and intestate succession) and those dealing with a possible
extension of matrimonial property law in order to solve property disputes. As far
as the former category is concerned, it was found that regardless of whether or
not a positive choice not to formalise the relationship was ever made, the choice
argument is irrelevant as far as any such claim is concerned, and that the
decisive factor was instead whether or not a contractual reciprocal duty of
support existed between the life partners during the existence of their
relationship. Regarding the latter, it was found that the choice not to marry could
play a persuasive role in deciding not to grant the extension sought. In this
Chapter this line of reasoning was applied within the context of registered and
unregistered domestic partnerships. The general proposition regarding the
necessity of the existence of a reciprocal duty of support as a prerequisite for
granting any need-based claim was confirmed, but as far as property disputes
are concerned the preliminary conclusions reached in Chapter 5 were expanded
to require that an effective alternative statutory regime would be required before
a positive choice not to marry could properly justify the refusal to extend
matrimonial property law to registered domestic partnerships. As the proposed
registered domestic partnerships legislation did not comply with this requirement,
it was suggested that claims for extension could be permitted in apposite
circumstances. The need-based I property dispute dichotomy was also applied
to chapter 4 of the Bill dealing with unregistered domestic partnerships. In the
746
case of the former type of claim, it was found that the failure of the Bill specifically
to require factual reciprocal duties of support was a crucial lacuna which required
urgent amendment. For the purposes of property disputes, it was concluded
that, provided the amendments suggested in this study are implemented, a
positive choice neither to marry nor to enter into a registered domestic
partnership would be a relevant consideration for justifying a refusal to extend
(matrimonial) property law to such partnerships beyond the protection already
provided by the modified Bill, while evidence on the facts of a lack of real choice
could permit the opposite conclusion where the extension sought would be
necessary to protect a vulnerable partner. It was however concluded that the
wide range of protection provided by the modified chapter 4 would make this
eventuality unlikely.
Finally, regarding the concept of consortium omnis vitae, it was concluded that
this concept should be fully recognised where partners have entered into a
registered domestic partnership. As far as unregistered domestic partners are
concerned, such partners should only be entitled to the contextualised form of
consortium that has thus far been recognised by the judiciary within the context
of non-formalised life partnerships.
747
PART4
-,_".'C"- ,",'-', ' __ ", .... • _.:, ._:.,>. ._.:_'::.. __
J~*,9<J+~'f"'~~~~~':óf~~<· "'~"';:',"'~>!R+~~;'<""'~!JiL -_':<c1ilf~.',.'<'~'~v";<"~~.:%~<1-i~,'; .j.,";~~i"o~'.~\,-:;:;jJI\~~i~;i:~~~f!i':',.>jI-'1
CHAPTER 8:
EVALUATING THE CONTINUED NEED FOR THE CIVIL UNION
ACTOF 2006 AND A NOTE ON THE WAY FORWARD FOR
SOUTH AFRICAN FAMILY LAW
1. INTRODUCTION TO PART 4
Chapter 8 will firstly attempt, against the backdrop of the DomestiesPartnerships Bill as modified and adapted according to the domesticpartnership rubric advocated in the preceding Chapters, to evaluate the
desirability of the continued existence of the Civil Union Act 17 of 2006 by
comparing the South African Law Reform Commission's recommendation to the
effect that separate legislation was required in order to allow for same-sex
marriages on the one hand, with the Legislature's response to the Constitutional
Court's judgment in Minister of Home Affairs v Fourie (Doctors for Life
International, Amici Curiae); Lesbian & Gay Equality Project v Minister of Home
Aiteirs' (hereafter "Minister of Home Affairs v Fourie") on the other. As an
example of an established and well-ordered family law system, the legal position
in the Netherlands will be compared to that in South Africa with a view to
ascertaining which approach is more acceptable. In this regard a number of
fundamental differences between the two countries' legal systems will be
highlighted, such as the fact that Dutch law provides for marriage as a civil
2006 (1) SA 524 (cc).
748
institution only, while South African law permits both Church and State to
solemnise civil marriages. The second aim of Chapter 8 is to consider the
validity of recent calls for the deregulation of marriage and for a new statutory
dispensation to regulate all interpersonal relationships in South Africa, and to
consider the significance of the proposals made in this study in this regard.
The closing Chapter (Chapter 9) contains a summary of the major conclusions
drawn throughout this study.
2. SAME-SEX MARRIAGE IN SOUTH AFRICA
2.1 The South African law Reform Commission
The history behind the validation of same-sex marriage in South Africa has been
considered in Chapter 3 and therefore need not be repeated. For the purposes
of this discussion it will suffice to recall, therefore, that the Constitutional Court's
judgment in Minister of Home Affairs v Fourie: gave Parliament one year as from
1 December 2005 within which to enact legislation that provided for same-sex
marriages. The issue that however needs to be considered in this Chapter is
whether the option exercised by the Legislature in response to Fourie was the
correct one, and to this end a convenient point of departure is to consider the
South African Law Reform Commission's recommendations in this regard.
The first steps towards assessing the post-1994 suitability of the South African
law of marriage were taken in 1996 when the Minister of Home Affairs requested
the South African Law Reform Commission to investigate this matter." In the
light of case law such as the 1998 decision in Langemaat v Minister of Safety
See note 1.
SALRC 2006: 1.
749
and Security' the Commission's investigation was subsequently expanded to
include the issue of "domestic partnerships." As a result of this development two
separate projects were launched; the first dealing with the technical aspects of
the law of marriage (Project 109) and the second dealing with domestic partners
as such (Project 118). Project 109 was completed in 20016 and in March 2006
the Commission presented a Report dealing with the second project that was
simply entitled Report on Domestic Partnerships.
As can be deduced from this brief summary, the Report produced in
consequence of Project 118 only saw the light of day after the judgment in
Minister of Home Affairs v Fourie? had been delivered. A memorandum which
summarised the Commission's findings up until that point was however provided
to the Constitutional Court at that Court's request, and it is important to note from
the outset that in his majority judgment Sachs j made it abundantly clear that
one of the reasons for suspending his order was precisely to afford the
Legislature sufficient opportunity to take proper cognisance of the Commission's
comprehensive research.f In as far as they pertain to same-sex marriage, the
recommendations made by the Commission in the 2006 Report can be
summarised as follows:
(i) The Marriáge Act 25 of 1961 ought to be amended by:
the insertion of definitions of the concepts "spouse" and "marriage";
the latter of which should clearly provide for both heterosexual and
homosexual marriaqes:" and
1998 (3) SA 312 (T). This case is considered in 2 and 3.2.1 in Chapter 5.
SALRC2006: 1, 2.
This report is entitled Report on the Review of the Marriage Act 25 of 1961, and it is available at
http://www.doi.gov.za/salrc/reports/r prj109 marr 2001may.pdf.
See note 1.
8
Par [156).
SALRC2006: 306 (par 5.6.6).
750
the inclusion of the words "or spouse" after the word "husband" in
section 30(1) of the Act so as to provide a gender-neutral marriage
formula;
and
(ii) The Commission was of the opinion, for considerations of policy, that it
was necessary "to accommodate the religious and moral objections" that
had been raised before the Commission against permitting same-sex
marriage. In the result, the Commission opined that (over and above the
amendments to the Marriage Act of 1961 described above) a new Act
should be promulgated that allowed only for the solemnisation of
"orthodox marriages" involving one man and one woman. This Act would
furthermore provide only for the solemnisation of religious marriages and
only ministers of religion or other persons holding responsible positions in
religious denominations or organisations would consequently be permitted
to qualify as marriage officers for the purpose of that Act.'?
As will be seen in the paragraphs that follow, the current position in South African
family law does not reflect the Commission's recommendations in any way.
2.2 The Legislature's response to Minister of Home Affairs v Fourie: The
Civil Union Act 17 of 2006
As seen in Chapter 3, the Civil Union Act came into operation on 30 November
2006. It defines the concept "civil union" as
the voluntary union of two persons who are both 18 years of age or older, which is
solemnised and registered by way of either a marriage or a civil partnership, in
10 SALRC2006: 311- 313 (par 5.6.23 and 5.6.24).
751
accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of
all others.11
The concept "civil union partner" is defined as "a spouse in a marriage or a
partner in a civil partnership, as the case may be, concluded in terms of this
Act.,,12
The definitions quoted lead to the conclusion that the term "civil union" is merely
semantic and that it has been employed merely to differentiate between marriage
and civil partnership.l" In addition, it is important to note that South African law
permits marriages between persons of the same sex that are in all respects the
equivalent of heterosexual marriages under the Marriage Act 25 of 1961. This is
facilitated by section 13 of the Civil Union Act which states that:
(1) The legal consequences of a marriage contemplated in the Marriage Act apply,
with such changes as may be required by the context, to a civil union.
(2) With the exception of the Marriage Act and the Customary Marriages Act, any
reference to-
(a) marriage in any other law, including the common law, includes, with
such changes as may be required by the context, a civil union; and
(b) husband, wife or spouse in any other law, including the common law,
.meIdu"I'es a CIVI union partner. 14
This brief summary shows that instead of expanding the Marriage Act in the
manner suggested by the South African Law Reform Commission, the
Legislature instead opted to introduce a "separate but equar'" regime to cater for
same-sex marriage.
11
Emphasis added.
12
Emphasis added.
13
Smith and Robinson 2008(b): 426. Also see 4.3.1.3 below.
14
Italics added.
15
De Vos and Barnard 2007: 821.
752
2.3 Summary of marriage and analogous interpersonal relationships that
are currently recognised in South African law
For the sake of completeness, it is useful briefly to summarise the various
interpersonal relationships that currently enjoy some form of legal recognition in
South Africa. These are:
2.3.1 Civil marriages
Civil marriages are concluded in terms of the common law as amended by the
Marriage Act 25 of 1961. Only monogamous heterosexual marriages may be
solemnised in terms of this Act. As a general rule both prospective spouses
must have reached the age of majority (18 years) in order to marry in terms of
this Act, but the Act makes provision for minors to be permitted to marry under
certain circurnstances."
2.3.2 Marriages under the Civil Union Act 17 of 2006
This Act caters for a specific form of marriage as a creature of statute. It
ostensibly" provides for both opposite and same-sex couples to marry one
another. Both prospective spouses must be at least 18 years of age and, in
contrast with the Marriage Act, no provision is made for persons younger than 18
to marry one another.
2.3.3 Customary marriages
The Recognition of Customary Marriages Act 120 of 1998 makes provision for
the legal recognition of both monogamous and polygynous customary marriages.
This Act applies only to marriages concluded according to "the customs and
16 See sections 24 - 26 of the Act.
17 See 3 in Chapter 3 above.
753
usages traditionally observed among the indigenous African peoples of South
Africa and which form part of the culture of those peoples.';" A customary
marriage concluded in accordance with this Act is currently the only means by
which a polygynous marriage can be clothed with complete legal validity in South
African law."
2.3.4 Civil partnerships
Over and above marriage, the Civil Union Act also provides for persons
(irrespective of their gender)20 involved in a monogamous relationship to enter
into a civil partnership with one another. This concept is unfortunately not
defined by the Act and doubt persists as to the precise legal nature thereof. It is
submitted that the Legislature has attempted to create a mechanism by which
two persons can formalise their relationship in instances where they do not wish
to marry one another but nevertheless wish to ensure that their relationship
obtains legal recocnltion." According to De VOS22 an example of such a
relationship may occur within the context of "more conservative same-sex
couples who view marriage as an institution exclusively associated with
heterosexual relationships." This would appear to tie in with Bilchitz and
Judge's23 opinion that the civil partnership provides an alternative to those who
view marriage as an "oppressive institution marked by rigid gender roles and
expectations" by providing couples with a means of determining the social
meaning of their relationship. This aspect will be considered in more detail later.
18
Definition of "customary marriage" read with definition of "customary law" in section 1 of the
Act.
19
Sonnekus 2009: 138.
20
See 3 in Chapter 3 above.
21
It is important to remember that until domestic partnerships legislation is enacted the civil
partnership will be the only means by which such recognition can be obtained outside of
marriage.
22
2007(a): 462.
23
2007: 484.
754
2.3.5 Purely religious marriages
The position of persons who enter into a marriage in accordance with the tenets
of their religion without such a marriage being solemnised or registered
according to applicable marriage legislation has been discussed in Chapter 3 and
need not be repeated. It is however important to note that although such
marriages are not recognised as valid marriages by South African law, the Courts
and the Legislature have been prepared to grant piecemeal extensions of the law
of marriage to such relationshtps."
2.3.6 Domestic or life partnerships
The position of unmarried life partners has been discussed throughout the course
of this study. For the purposes of this Chapter it will suffice to say that until
domestic partnership legislation is enacted in accordance with the behests of the
domestic partnership rubric as developed in this study, the position pertaining to
unmarried domestic partners will continue to be fragmented, inconsistent, and
fraught with uncertainty in that, for example, there would be no definitive answer
to the question as to whether or not the piecemeal developments occasioned in
respect of same-sex partnerships by the judiciary will be nullified by the so-called
"choice argument" in view of the fact that same-sex couples have subsequently
been permitted marry.25
2.3.7 Graphic iltustratlorr"
The spectrum of interpersonal relationships described above and the legal
recognition which they currently enjoy can be summarised by the following
diagram (which also appears as Figure 3.1 in Chapter 3):
24 See 4 in Chapter 3.
25
See 5 in Chapter 3 as well as Chapter 5 in general.
26
This graphic originally appeared in a chapter written by the author of this study in Robinson et al
2009 (see page 16). It has been reproduced in a slightly adapted format with permission of the
editor.
755
INTERPERSONAL RELATIONSHIPS IN
SOUTH AFRICA
-: I <,
I MARRIAGE -, r LIFE PARTNERS I r CIVil PARTNERSHIP IL---------------7 ~
CIVil MARRIAGE CUSTOMARY OTHER (PURElY Same-sex and
MARRIAGE UNDER CIVIL MARRIAGE RELIGIOUS) opposite-sex
UNION ACT "MARRIAGES"
r couplesI~ ,I
,,,
Opposite-sex PiecemealSame-sex and Monogamous and ,L ____ recognition provided
couples only opposite-sex polygynous by Courts and
couples customary marriages Legislature; minimal
1 1 protection providedbv common law
Common law Civil Union Act Recognition of
and Marriage Civil Union Act 1717 of 2006 Custamary Marriages
Act 25 of 1961 of 2006(marriage) Act 120 of 1998
(civil partnership)
~------- 1, . legal consequences of ,
______ J
marriage in terms of
Marriage Act 25 of 1961
apply
Figure 8.1: Legal recognition of interpersonal relationships in South Africa
2.3.8 Conclusion
Both the preceding discussion and Figure 8.1 illustrate the complex manner in
which marriage, civil partnership and unmarried life partnerships are currently
regulated in South African law. The question that now arises is whether this
state of affairs should persist, and, if not, what remedial action should be
proposed. Before making suggestions in this regard, it is useful to consider the
example provided by a well-structured family law system such as the one
encountered in the Netherlands.
756
3. THE LEGAL POSITION IN THE NETHERLANDS
Preliminary research conducted as a precursor to this study has shown that the
family law framework in the Netherlands is clearly demarcated and is the product
of "well-conceived and carefully considered Parliamentary procedures.t" As
such, it is submitted that it provides an effective sounding board for evaluating
whether the separate Act approach towards same-sex marriage occasioned by
the enactment of the Civil Union Act 17 of 2006 was the correct one.
Over the past decade or so Dutch family law has undergone a number of
progressive and trend-setting developments that have galvanised jurisdictions
across the globe. Unlike the position in South Africa these developments have
been occasioned by way of legislative processes as opposed to judicial
pronouncements." According to Maxwell29 the role played by the Dutch judiciary
can be summarised as follows: In 1990 two Dutch Courts (a District Court in
Amsterdam" and the Dutch Supreme Courtr" were requested to adjudicate on
the possible recognition of same-sex marriages. Two arguments were raised in
this regard: First, it was contended that, as article 30 of the Burgerlijk Wetboek
did not make any direct reference to gender (it simply stated that "De wet
beschouwt het huwelijk alleen in zijn burgerlijke betrekkingen"), it could be
interpreted so as to provide for same-sex marriages. Both Courts however held
that article 30 was enacted with a view to heterosexual marriages only and was
thus not capable of being interpreted in this fashion. Second, it was suggested
that the limitation to heterosexual marriage infringed certain individual rights and
discriminated against same-sex couples. This argument also failed as the
Amsterdam Court held that it was the task of the Legislature to rectify differential
treatment. The Supreme Court in turn relied on the "traditional" definition of
27 Smith and Robinson 2008(a): 376 and 377.
28 See 4.1.1 below.
29 2000: 2.2.1.
30 Rb Amsterdam 13 februari 1990, NlCM-Bulletin, 456-560, per Maxwell 2000: 2.2.1 and Merin
2002: 123.
31 HR 19 oktober 1990, Nl 1992, 192, m.nt EAAL en EAA (homohuwelijk), per Maxwell 2000: 2.1.1.
757
marriage in order to justify its refusal to grant the relief sought by the applicants.
The latter Court did however concede that while the limitation of matrimonial
benefits to heterosexual couples could in principle be unjustifiable, it should be
left to the Legislature to decide this issue. In contrast to the Courts, the Dutch
Legislature has played a far more active role in reforming matrimonial law: Dutch
legislation has not only provided for the formalisation of cohabitation relationships
since 1998,32but in April 2001 the Netherlands also became the first country in
the world to accord full legal recognition to same-sex rnarrtaqes."
Dutch law currently provides couples wishing to formalise their unions with three
methods of doing SO:34
3.1 Civil marriage
As far back as April 1996 the Dutch Parliament passed a resolution in terms of
which the extension of civil marriage to same-sex couples was demanded." The
Burgerlijk Wetboek was amended five years later so as to provide full legal
recognition to gay and lesbian marriages.36
Previously the major difference between heterosexual and homosexual
marriages in Dutch law was encountered in the law of adoption that only
permitted heterosexual spouses to participate in inter-country adoptions. As of 1
February 2009 the Wet opneming buitenlandse kinderen ter adoptie37 was
amended so as to permit same-sex spouses to adopt children from abroad." A
same-sex marriage has no effect on the legal relationship between a same-sex
32
See 3.2 below.
33
Waaldijk 2004: 572.
34
See Smith and Robinson 2008(a): 374 - 376 for a more detailed discussion.
35
Maxwell 2000: 2.2.1.
36
This was achieved by amending article 1:30 of the Wetboek to read: "1. Een huwelijk kan worden
aangegaan door twee personen van verschil/end of van gelijk geslacht."
37
Act of 24 October 2008.
38
Curry-Sumner 2009: 330, 331.
758
spouse and the biological child of his or her spouse," unless the former person
adopts the child.4o (In this regard it is worth mentioning that the adoption
procedures pertaining to female same-sex couples have been simplified as from
1 February 2009.)41 Both spouses to a lesbian marriage automatically acquire
parental responsibility over a child born to one of them during the currency of
their marriage "tenzij het kind tevens in familierechtelijke betrekking staat tot een
andere ouder.,,42 If the child was conceived as a result of sperm donated by the
father, the latter may, with the mother's consent, recognise the child in which
case he and the mother will be regarded as the legal parents of the child while
the mother and her spouse will share parental responslbltlty."
Irrespective of the gender of the spouses, Dutch law only recognises civil
rnarriaqes'" with the result that marriages solemnised only by way of a religious
ceremony are not legally vatid." The secular and religious components of
marriage are therefore completely divorced from one another and marriages may
only receive an ecclesiastical blessing after the completion of the civil
ceremony."
3.2 Registered partnership
As from 1 January 1998 parties of the same or opposite sex may enter into a
geregistreerd partnerschap with one another. Bath parties must be at least 18
years of age and the partnership comes into existence as soon as the partners
39 Waaldijk 2004: 575; Vonk 2009: 125.
40
Netherlands Ministry of Justice (2006) Fact sheet: "Same-sex marriages." Accessed from
htto://english.justitie.nl/currenttopics/factsheets/ (12 September 2007).
41 Curry-Sumner 2009: 330, 33l.
42 Article 1:253sa.
43 Curry-Sumner 2009: 335.
44
Article 1:30(2) of the Wetboek: "De wet beschouwt het huwelijk al/een in zijn burgerlijke
betrekkingen." Also see Waaldijk 2004: 572.
45
SALRC2006: 167; Waaldijk 2004: 572, 573.
46
Netherlands Ministry of Justice (2006) Fact sheet: "Same-sex marriages." Accessed from
http://english.justitie.nl/currenttopics/factsheets/ (12 September 2007).
759
have signed and registered a so-called akte van registratie van pettnerscnep"
All of the consequences of a civil marriage apply to a registered partnership."
but certain differences occur with respect to children in that registered partners
may not partake in inter-country adoptions, and where a child is born to a female
partner in a lesbian relationship, her female partner is not regarded as the parent
of that child unless she adopts the child." In the case of a child born as a
consequence of sexual intercourse to a female partner who is involved in a
heterosexual registered partnership, the male partner is not presumed to be the
father of the child, with the result that he can acknowledge the child if his partner
consents hereto.5o If the child was conceived artificially by making use of the
male partner's sperm, the latter is regarded as a sperm donor with the result that
he has no rights to the child unless his partner consents thereto or unless a
"family life" exists between himself and the child.51 If a child is born to lesbian or
heterosexual partners both partners acquire parental responsibility over such a
child unless the biological father has-with the mother's consent-acknowledged
paternity before the child's birth.52
A registered partnership can be terminated in the following ways: (i) by death of
either or both partners; (ii) where one partner has been missing for more than
five years; (iii) by converting the partnership into a marriage;53 (iv) by mutual
agreement and (v) by an order of Court."
47
Article 1: 80a.
48
Article 1: 80a.
49
SALRC2006: 174; Vonk 2008: 125.
50
Vonk 2008: 122; Waaldijk 2005: 140.
51
Curry-Sumner 2009: 340, referring to a decision of the Hoge Road (Supreme Court) of 24 January
2003, Nl 2003/386.
52
Waaldijk 2005: 140.
53
See 9.4 in Chapter 7 for the principles pertaining to conversion.
54 Article 1: 80c.
760
3.3 Contract
Cohabitants may regulate the patrimonial consequences of their relationship by
way of a contractual undertaking to this effect. The usual principles of the Dutch
law of contract apply to such an agreement with the result that it binds only the
parties thereto and does so only to the extent of the provisions therein.55 As in
South Africa, Dutch law provides only piecemeal recognition to non-formalised
domestic partnerships. 55 It would however appear that this piecemeal
recognition provides more comprehensive protection as far as the patrimonial
consequences of such a union are concerned than in South Africa as the fact
that the existence of a tacit cohabitation agreement is readily inferred implies that
it is sometimes possible to "borrow" from certain patrimonial consequences of
marriage, unless the parties have specifically elected not to marry. 57 So, for
example, while general community of property applies in the case of a civil
marriaqe." Van der Burght59 mentions that the facts of the case may permit a
"limited community" to be found to exist between the parties to non-formalised
unions." Nevertheless, an important parallel that can be drawn between the
position of cohabitants in the Netherlands and their South African counterparts is
that no specific legislation as yet caters for such unions." Consequently
Schrama mentions that while approximately one half of all cohabitants in the
Netherlands opt for entering into a cohabitation contract, this does little to solve
the problems faced by the parties thereto when the relationship breaks down, as
the "general rules of contract law and property law" that apply to such
cohabitants are not only "primarily designed to regulate economically based
relations", but are also not applied in a consistent fashion by the Courts, leading
SS Waaldijk 2005: 139.
SG See Van der Burght 2000: 78 - 80; SALRC2006: 167.
57 Van der Burght 2000: 78.
58 Netherlands Ministry of Justice (2006) Fact sheet: "Same-sex marriages." Accessed from
http://english.justitie.nl/currenttopics/factsheets/ (12 September 2007).
59 2000: 78.
GO In South Africa the partners would have to rely on a universal partnership, provided of course
that they can prove the existence thereof. The universal partnership is discussed in Chapter 6.
G1 Schrama 2008: 321.
761
to legal uncertainty and "injustice towards partners who have substantially
invested in the relationship by taking care of children or contributing to the other
partner's assets.,,62
4. EVALUATION OF THE CURRENT POSITIONIN SOUTHAFRICA
4.1 Important similarities and differences between South Africa and the
Netherlands
4.1.1 The cursory analysis conducted above shows that the family law system in
the Netherlands provides its citizens with a well-structured and relatively
straightforward framework within which to regulate their interpersonal
relationships. In contrast with the position in South Africa, all drastic
changes and developments have been occasioned by the Legislature in
consequence of judicial pronouncements to the effect that this arm of
government was best suited to this task.'" On the other hand, in South
Africa the Courts have initiated change by way of ad hoc pronouncements
in consequence of which the Legislature has (at times) been prompted or
instructed to act." (It must be mentioned that this legislative activity has
not always been progressive. One thinks, for example, of the
development occasioned by the decision in J and Another v Director
General, Department of Home Affairs, and Others65 that was not reflected
in the subsequently enacted section 40 of the Children's Act 38 of 2005.)66
The difference in approach between South Africa and the Netherlands is
however not surprising given the fact that the Dutch Constitution does not
62
Schrama 2008: 321.
63
Maxwell 2000: 2.1.1; 2.1.2 and 2.2.1.
64
It can however be agreed with Robson's (2007: 429) observation that the order of the
Constitutional Court in Minister of Home Affairs v Fourie actually had the effect of "maintain[ing]
judicial supremacy."
65 2003 (5) SA_621(CC).
66
This issue is discussed at length in Chapter 5 (see 4.2).
762
provide for judicial review of legislation; a fact which explains the less
active role played by the Courts." The position in Dutch law has however
not escaped criticism, with the ever-narrowing gap between marriage and
registered partnership prompting the question as to whether Dutch law
provides couples with "a real choice, rather than simply a hollow shell.,,68
The same question can also be asked of South African law: As the law
stands couples who do not wish to marry one another but still wish to
formalise their relationships only have the option of entering into a civil
partnership open to them. However, the legal consequences of (civil)
marriage and civil partnership are not merely similar as in the Netherlands
(regarding civil marriage and registered partnership) but are in fact
identical.69 As will be seen below, this raises serious doubts as to whether
the Civil Union Act provides a true alternative to marriage and also greatly
strengthens the case for the enactment of the Domestic Partnerships Bill
as modified and calibrated in accordance with the domestic partnerships
rubric propagated in this study. Nevertheless, despite its well-structured
framework, Dutch law lacks comprehensiveness in that it contains no
specific legislation regulating non-formalised life partnerships. In this
regard it is submitted that the enactment of legislation akin to the
unregistered domestic partnership in the (modified) South African
Domestic Partnerships Bill may be a salutary development.
4.1.2 Dutch law has, since the early nineteenth century, provided for a clear
separation between State and Church as far as the solemnisation and
registration of marriages is concerned, and in this regard only the State-
the so-called Burgerlijke Stand-is permitted to solemnise a marrtaqe.Ï"
On the other hand, South African law permits both State and religious
67 SALRC2006: 166, 167.
68 Curry-Sumner 2008: 274.
69 Section 13 of the Civil Union Act 17 of 2006.
70 Waaldijk 2004: 572, 573.
763
officials to qualify as competent marriage officers. This aspect is
considered in more detail in 4.3.1.3 and 4.3.3 below.
4.1.3 A clear distinction between Dutch and South African law presents itself
when the developmental processes of the two countries' family law
legislation is compared: In the Netherlands the Legislature gradually
paved the way for the validation of same-sex marriages over a period of
five years. Regarding registered partnerships, the Commissie voor de
toetsing van wetgevingsprojecten published the first report concerning the
possible recognition of the same a full six years before the legislation in
question was eventually enacted in 1998. When compared with the
position in South Africa, it can be seen that not only was the South African
Legislature only granted a period of twelve months to enact same-sex
marriage legislation, but-more alarmingly-the document eventually
promulgated as the Civil Union Act was first tabled a mere three weeks
before its enactment. To make matters worse, this document was never
made available for public scrutiny or comment."
4.1.4 Dutch law makes use of one provision in one piece of legislation in order
to provide for both heterosexual and homosexual marriages. In addition,
no inconsistent terminology is used as the word "huwelijk" is universally
applied. In contrast, South African law not only employs a separate piece
of legislation to provide for "civil unions", but these unions moreover differ
markedly from the generic international conception thereof, in terms of
which "[a]s a duplicate of marriage, civil unions award couples all the
rights and obligations of a marriage relationship without actually providing
for them to get married.,,72 South African law thus provides for a unique
"civil union" concept: No other jurisdiction employs a similar dualistic use
of this term in the sense of using it to create an institution which potentially
71 See Smith and Robinson 2008(a): lA for a comprehensive discussion of the strange
circumstances under which the Civil Union Act was drafted and enacted.
72 SALRC2006: 285 (emphasis added).
764
qualifies either as a "full" marriage or as a civil partnership that enjoys
identical legal status to and the same legal consequences as a civil
marriage.
Having considered these differences, the desirability or otherwise of maintaining
the status quo in South Africa can now be assessed.
4.2 The case for retaining the Civil Union Act of 2006
Bilchitz and Judge73 classify the "purposes and goals" behind the validation of
same-sex marriage into three main categories, namely (i) a "formal rights"
perspective in terms of which the rights and benefits of marriage are extended to
same-sex couples without necessarily equalising the "social meaning" of
marriage; (ii) a "substantive rights" perspective that, by granting same-sex
couples the full right to marry, equalises the "social meaning" but retains
marriage as the central form of intimate relationship; and (iii) the "transformative"
perspective that "seeks to de-centre marriage as the sole and primary legal (and
social) form for the recognition of interpersonal relationships and seeks to create
legal possibilities for the recognition of a plurality of familial forms." According to
them, the Civil Union Act 17 of 2006 has the ability to achieve all three of these
ideals; particularly due to the fact that, by introducing the concept of a civil union
that allows the parties to such a union to choose between marrying one another
or concluding a civil partnership, the pre-eminence traditionally accorded to
marriage can to some extent be displaced." The essence of this contention,
therefore, is that the South African Legislature's unique use of the term "civil
union,,75implies that marriage is not the only means of securing legal and societal
recognition of an interpersonal retationship." Moreover, by offering the parties
an alternative to marriage, the authors contend that the Act provides those who
73 2007: 467, 468.
74 2007: 485.
75 See 4.1.4 above.
76 2007: 486.
765
wish to disassociate their relationship from marriage with the scope to determine
the "social meaning" that is to attach to their relationship." From this postulation
Bilchitz and Judge proceed to contend that the Marriage Act 25 of 1961 is
superfluous and that it should be repealed. Further reasons for this assertion
include:
(i) That it is "irrational" to have two Acts that perform the same function; and,
moreover, "an affront" to same-sex couples to force them to marry in
terms of separate leqislatlon;"
(ii) That the effect of the continued existence of the Marriage Act on the
"status equality" of same-sex couples may either (i) be non-existent, in
which case the Act will become redundant; or (ii) have a symbolic effect
that prevents full equality for same-sex couples and therefore necessitates
its repeal;
(iii) That the 1961 Act is a product of the Apartheid era and that some of its
provisions (such as those prescribing different ages pertaining to the
consent required for male and female minors to marry) are outdated and
based on gender distinctions that are "constitutionally suspect";" and
(iv) That repealing the Act will contribute towards attaining both the
"substantive rights" and "transformative" ideals identified above.
Bearing the arguments supporting the case for repealing the Marriage Act in
mind, the counter-argument for retaining the Act and instead repealing the Civil
Union Act can now be considered.
77
Bilchitz and Judge 2007: 484.
78
2007: 487. Also see De Vos and Barnard 2007: 821, 822.
79
2007: 488,489.
766
4.3 The case for repealing the Civil Union Act of 2006
The case for repealing the Civil Union Act is based on the premise that, in as far
as same-sex marriage is concerned, both the South African Law Reform
Commission as well as the Legislature erred in their respective approaches to
the validation of same-sex marriages. This point of view is substantiated by the
following considerations:
4.3.1 The nature of the institution of civil marriage in South Africa
As has been seen throughout this study, there can be no doubt that, from a legal
point of view, the civil marriage is a secular instltution." As observed by Farlam
JA in his minority judgment in Fourie and Another v Minister of Home Affairs and
Others:81
I have dealt in some detail with the history of the law of marriage because it throws light
on a point of cardinal importance in the present case, namely that the law is concerned
only with marriage as a secular institution. It is true that it is seen by many as having a
religious dimension also, but that is something with which the law is not concerned.82
Despite the fact that the law regards marriage as a purely secular institution, it is
nevertheless important to remember that South African law provides for both
State and Church to solemnise civil marriages.83 The Marriage Act of 1961 thus
permits duly authorised ministers of religion or other similarly situated persons to
act as marriage officers and to solemnise marriages in accordance with the
prescripts of their religion while simultaneously solemnising that marriage as a
80 See the Fourie case at par [63] where Sachs J stated that while marriage was highly personal in
nature, "the words 'I do' bring the most intense private and voluntary commitment into the most
public, law-governed and State-regulated domain."
81 2005 (3) SA 429 (SeA) at par [80].
82 Emphasis added.
83 Bonthuys 2008: 475.
767
civil rnarriaqe." Although a single ceremony may therefore comprise both a civil
and a religious component, it is compliance with the civil component as opposed
to participating in the religious ceremony that creates legal consequences for the
marriage.8s As opposed to the law of the Netherlands, South African law
therefore does not require an absolute separation between State and Church
regarding the formation of a civil marriage.86 Section 31 of the Marriage Act does
however permit a religious marriage officer8? to refuse to solemnise a marriage
that does not "conform to the rites, formularies, tenets, doctrines or discipline" of
his or her religion. (It is to be noted that Act 25 of 1961 does not permit an ex
officio marriage officer to refuse to solemnise any marriage that complies with
civil requirements, or to refuse to do so on the basis of his or her religious
beliefs.)
Bearing the nature of the South African civil marriage in mind it becomes clear
that the proposals of both the Legislature (in terms of the form and structure of
the Civil Union Act) and the Law Reform Commission are off the mark. In terms
of point (i) of the Commission's proposal (see 2.1 above) there is no problem.
However, it is submitted that the second point of the proposal is problematic as it
is questionable whether it was necessary to promulgate separate legislation in
order to realise the eventual aim of validating same-sex marriages without
prejudicing religious freedom in any way. It is submitted that the following
reasons can be proffered in support of the contention that the Legislature should
have confined its reaction to Minister of Home Affairs v Fourie88 to point (i) of the
Law Reform Commission's proposal and should thus simply have expanded the
Marriage Act:
84
See section 3 of the Marriage Act 25 of 1961 and Singh v Ramparsad 2007 (3) SA 445 (D) at par
[34] and [52]. Section 33 of the 1961 Act expressly provides for a marriage that has been
solemnised by a marriage officer subsequently to be blessed by a minister of religion or a person
holding a responsible position in a religious denomination.
85
SALRC2006: 284; Singh v Ramparsad 2007 (3) SA445 (D) at par [34].
86
See 3.1 and 4.1 above.
87
That is to say a minister of religion or a person who holds a responsible position in a religious
denomination or organisation.
88
2006 (1) SA 524 (CC).
768
4.3.1.1 The wording of the Civil Union Act creates uncertainty
In background research to this study,89 it was pointed out that the Civil Union Act
17 of 2006 causes a number of interpretative problems, one of the most glaring
of which is the Act's references to gender.9o The problem caused in this regard
can be summarised by stating that wherever the Act refers to gender it only
89 See in general Smith and Robinson 2008(a) and 2008(b).
90 Also see Van Schalkwyk (2007: 168 and 172, 173) who exposes a further interpretative difficulty
namely that it is unclear whether the Act permits civil unions that are concluded according to
customary law (see further in this regard Bakker (2009: 8,9)). It is submitted that the Act
contains another interpretative difficulty over and above those created by its references to
gender and the uncertainty regarding "customary" civil unions identified by Van Schalkwyk. This
difficulty is created by a conflict that appears to exist between section 8(6) of the Act and section
13(2) thereof. First, section 8(6) (italics added) states that "[a] civil union may only be registered
by prospective civil union partners who would, apart from the fact that they are of the same sex,
not be prohibited by law from concluding a marriage under the Marriage Act [25 of 1961] or the
(Recognition of] Customary Marriages Act [120 of 1998]." On the other hand, section 13(2)
informs the reader thereof that "With the exception of the Marriage Act and the Customary
Marriages Act, any reference to-
(a) marriage in any other law, including the common law, includes, with such changes as
may be required by the context, a civil union; and
(b) husband, wife or spouse in any other law, including the common law, includes a civil
union partner."
At first glance these two sections may appear to conflict with one another as it could be argued
that while section 8(6) states that any impediment to marriage that is specifically prescribed in
the Marriage Act or the Recognition of Customary Marriages Act would prevent the conclusion of
a civil union, section 13(2) on the other hand tells us that a reference to "marriage", "husband",
"wife" or "spouse" under the latter legislation does not include a civil union. To illustrate: It is
clear that section 8(6) intends, for example, to make the provisions relating to marriages
between a person and the relatives of his or her deceased or divorced spouse (section 28 of the
Marriage Act) applicable to civil unions. However, on the wording of section 13(2) this would not
be possible. It is submitted that the answer to this predicament lies in the headings to the
respective sections in question-section 8(6) falls under the heading "[r]equirements for
solemnisation and registration of civil union" while section 13 is entitled "[I]egal consequences of
civil union." If the use of headings in our jurisprudence is considered, it becomes clear that they
may be used as an interpretative tool in apposite circumstances-see Turffontein Estates v
Mining Commissioner Johannesburg 1917 AD 419 at 431 and President of the RSA v Hugo 1997
(4) SA 1 (CC) at par [12] (also see 7.2.2.2.2 (b) (ii) in Chapter 7 for the role played by headings in
interpreting the Domestic Partnerships Bill, 2008). This would probably support the contention
that, although the Civil Union Act is not divided into chapters, it can be deduced from the
headings employed throughout the Act that it envisions two separate scenarios: Sections 4 - 12
of the Act deal with the solemnisation of the civil union per se while section 13 deals with the
consequences that follow once the requirements in sections 4 - 12 have in fact been complied
with. Under this dichotomy it could be contended that the headings indicate that sections 8(6)
and 13(2) have nothing to do with one another. It is worth pointing out that this argument may
be flawed in that section 13(2) does not specifically indicate that it applies to legal consequences
per se but instead has a rather generic look to it. Be that as it may, the conflict between section
8(6) and 13(2) once again proves that the drafting of the Act is problematic.
769
refers to same-sex couples," with the result that it is uncertain whether it is
possible for a heterosexual couple to conclude a civil union." At the time of
promulgation of the Act the Minister of Home Affairs intimated that both
homosexual and heterosexual couples were included within the ambit of the
Act,93 but irrespective of whether or not this occurs in practice the fact remains
that a literal reading of the Act conveys the message that it only applies to
homosexual couples. This unsatisfactory situation may well imply that, if
constitutionally challenged, the Act would, in accordance with section 39(2) of the
Constitution, 1996 need to be interpreted in such a manner as to be aligned with
the Bill of Rights;94 a state of affairs that proves that the Act was not drafted in
such a way as to enable the average South African citizen or official to
understand what the law expects of him or her.95
4.3.1.2 The anomalies pertaining to heterosexual life partners
Over and above the interpretative difficulties posed by the Civil Union Act, its
enactment has also either created or in other instances perpetuated certain legal
anomalies. Smith and Robinson'" identify the following:
(i) The Civil Union Act has not clarified the issue as to why the law currently
permits same-sex life partners to adopt children jointly but does not allow
heterosexual life partners to do the same:"
91
See sections 6 and 8(6) of the Act.
92
The answer to this question is particularly relevant as far as the civil partnership is concerned as
this partnership is currently the only alternative means by which an unmarried couple may
obtain full legal recognition of their relationship-see 2.3.4 above.
93
Statement made by the then Minister of Home Affairs NN Mapisa-Nqakula which is available at
http://home-affairs.pwv.gov.za/speeches.asp?id=181 (accessed on 18 October 2007).
94
Smith and Robinson 2008(a): 367, 368.
95
See Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd:
In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545 (CC) at par [24] where Langa
DP observed that the obligation to interpret legislation in line with the Constitution at times
needs to be weighed up against the Legislature's duty to promulgate legislation that is clear and
precise.
96
2008(a): 368 - 374.
97
Smith and Robinson 2008(a): 370.
170
(ii) The Civil Union Act provides no indication as to why same-sex couples do
not-in the wake of a decision such as Du Plessis v Raad Accident
Funcfl8-need to take the proactive step of entering into a civil union in
order to have a claim for loss of support extended to the surviving life
partner, while heterosexual life partners will-in consequence of Volks NO
v Robinson99-have to register a civil union in order to do the same;"?
and
(iii) The Civil Union Act has not altered the fact that the heterosexual life
partnership is still the only form of interpersonal relationship that has no
right of intestate succession in terms of the Intestate Succession Act 81 of
1987.101
Smith and Robinson may have expected too much from the Civil Union Act in
terms of clarifying all of these anomalies-the Act was, after all, promulgated with
the chief aim of legalising same-sex marriage. Nevertheless, the fact remains
that by specifically enacting the civil partnership as an alternative to marriage, the
Legislature did in fact-perhaps unwittingly-enter into the realm of the life
partnershlp.l'" This being the case, it might not have been unreasonable to
expect at least some of the anomalies identified above to have received
legislative attention. The inescapable fact is however that when considered in
conjunction with the interpretative difficulties referred to above it becomes clear
that the Civil Union Act has further complicated an already complicated legal
framework. It will however be seen below that the legislation developed in
accordance with the domestic partnership rubric-and not the Civil Union Act-is
best-suited to remove the anomalies identified by Smith and Robinson.
98 2004 (1) SA 359 (SCA).
99 2005 (5) BCLR446 (CCj.
100 Smith and Robinson 2008(a): 372.
101 Smith and Robinson 2008(a): 373, 374.
102 See Sinclair 2008: 404.
711
4.3.1.3 The concept "civil union" is purely semantic and in fact meaningless
Although the Civil Union Act compels same-sex couples to marry one another in
terms of separate legislation, their union is not termed a "civil union" but is
instead referred to as a "marriage.,,103 This strengthens the assumption referred
to earlier104 that the reference to "civil union" is merely of a semantic and
cosmetic nature, as there is no doubt that this Act in fact allows parties to marry
one another. Furthermore, the legal consequences of a marriage concluded
under the Civil Union Act are identical to those of a "traditional" civil marriage
under the Marriage Act,105 as a result of which it can be concluded that same-sex
marriages are accorded a "public and private status'"?" that is indistinguishable
from that enjoyed by heterosexual spouses under the 1961 Act. The question
therefore arises: Why was it necessary to promulgate a separate Act if precisely
the same legal content would be ascribed to marriages concluded in terms
thereof as those ascribed to the "traditional" heterosexual marriage under the
1961 Act?
In Minister of Home Affairs v Fourie 107the Constitutional Court emphasised the
fact that in selecting an appropriate legislative format for same-sex marriage it
was important to note that "symbolism and intangible factors play a particularly
important role" and that "[w]hat might appear to be options of a purely technical
character could have quite different resonances for life in public and private.,,108
It is however questionable whether the mere provision of a separate piece of
legislation assigns appropriate significance to these symbolic considerations and
intangible factors. That there is no clear answer to this question becomes
apparent when the following considerations are borne in mind:
103
See section 12(3) of the Act as well as forms B-E in the addenda to the regulations of the Act.
104
See 2.2 above.
105 Section 13.
106
See par [81) of the Fourie case.
107 See note 1.
108 Par [139).
772
• Although the Marriage Act of 1961 permits religious marriages to be
solemnised by religious marriage officers, the Act remains a "secular"
piece of lepislation.l'" This is confirmed by the fact that the Act applies in
a uniform fashion to all civil marriages irrespective of the prescripts of any
particular religious dogma, and irrespective of whether the parties adhere
to any form of religion whatsoever."?
• As seen in the preceding discussion, it is (and has always been) possible
for a religious marriage officer to refuse to solemnise a marriage that
conflicts with the tenets or beliefs of his or her religious denomination or
orqanlsatlon.!" In consequence it is submitted that even if same-sex
marriages were in principle permitted to be solemnised in terms of the
1961 Marriage Act, section 31 of that Act would still provide adequate
means by which any religious organisation or denomination could protect
its beliefs by simply permitting its ministers of religion to refuse to
solemnise marriages between persons of the same sex.
The Civil Union Act does not alter the fact that South African law does not
require a complete separation between "religious" and "purely civil"
marriages. Both the Marriage Act as well as the Civil Union Act provide
for "religious" as well as "purely civil" marriages. It can therefore rightly be
asked whether it is worth having a separate Act (that brings about
precisely the same consequences as the original Act) or whether such a
state of affairs does not create unnecessary obfuscation.
In view of these considerations it is submitted that it would have been far simpler
to have followed the Dutch example by simply expanding the Marriage Act of
1961 instead of promulgating a new Act that in reality does little (if anything at all)
109
Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SeA) at par [78]; Van
der Vyver and Joubert 1991: 457; Robinson et a/2009: 28, 29.
110
Singh v Ramparsad 2007 (3) SA 445 (D) at par [45]; Robinson et a/2009: 28, 29.
111 See par [97] of the Fourie case.
713
in terms either of assigning appropriate significance to the symbolic
considerations and intangible factors associated with marriage or of giving effect
to the South African Law Reform Commission's recommendations. A preliminary
conclusion, therefore, is that the mere expansion of the Marriage Act would have
been the preferred option.
4.3.2 The effect of repealing the Civil Union Act on Bilchitz and Judge's
"transformative" perspective
It will be recalled that Bilchitz and Judge 112opine that the validation of same-sex
marriage should ideally achieve the combined "purposes and goals" of both the
"substantive rights" perspective (according to which granting same-sex couples
the full right to marry equalises the "social meaning" of marriage but retains
marriage as the central form of intimate relationship) as well as those of the
"transformative" perspective (in terms of which marriage is de-centred by creating
"a plurality of familial forms,,).113With specific reference to the latter perspective,
Bilchitz and Judge 114submit that "the creation of an equal alternative option to
marriage [i.e. the civil partnership] also in some way de-centres marriage as the
primary and privileged social option for committed interpersonal relationships."
As a point of departure it may be conceded that repealing the Civil Union Act so
as to require all marriages henceforth to be performed in terms of the Marriage
Act 25 of 1961 will most likely satisfy only the requirements set by the
"substantive rights" perspective and will therefore do little to erode the pre-
eminence enjoyed by marriage. Nevertheless, an important question to be asked
is why Bilchitz and Judge insist that the validation of same-sex marriage should
be required to achieve anything beyond the "substantive rights" perspective in
the first place. In fact, it seems illogical to lay the responsibility for de-centring
marriage on the law of marriage itself. After all, it is the extension of marriage
112
2007: 466 et seq.
113
Bilchitz and Judge 2007: 468.
114 2007: 485.
774
that is at issue; nothing more and nothing less. The validation of same-sex
marriage should be left at that and therefore limited to achieving the goals set by
the "substantive rights" perspective, thus guaranteeing equality of marriage per
se. In the end result, the goals sought to be achieved in terms of the
"transformative" perspective cannot be achieved by the simple act of extending
marriage to same-sex couples but must instead be achieved by creating a
broader family law system of which marriage forms but one part. This is so
because marriage can only be de-centred by providing realistic alternatives
thereto. This is where legislation adapted according to the domestic partnership
rubric comes in. (In this regard it is important to remember that the application of
the rubric narrows the gap between the registered domestic partnership and
marriage to a far greater extent than the original Domestic Partnerships Bill, 2008
did, while still maintaining a distinction between the twO.)115
Viewed in this light, it is submitted that Bilchitz and Judge overestimate the extent
to which the introduction of the civil partnership in the Civil Union Act achieves
the objectives of the "transformative" perspective. In fact, by creating an
institution that is identical to marriage in all but name, it is submitted that the
norm of marriage is not de-centred but in fact reinforced. Indeed, as Goldblatt
states: 116"The [objection in this regard] is that marriage and domestic partnership
will become identical and that this may undermine marriage and the idea of
pluralism within family law." This objection strengthens the argument for
legislation formulated on the basis of an effective domestic partnership rubric that
provides a true alternative to marriage.
Having said this, the "civil partnership" requires closer analysis. This will be done
after the further arguments raised by Bilchitz and Judge have been considered in
the paragraph that follows.
115
See Part 3 of this study.
116 2003: 621.
775
4.3.3 Countering Bilchitz and Judge's additional reasons for asserting that the
Marriage Act should be repealed
In 4.2 Bilchitz and Judge's main reasons for suggesting that the Marriage Act
should be repealed and that the Civil Union Act should henceforth govern the
solemnisation of all civil marriages in South Africa were set out. Over and above
the "transformative" arguments that have been dispensed with in the preceding
paragraph, a few brief comments are apposite regarding the additional reasons
proffered by these authors:
(i) It can be agreed with the assertion that it is irrational to have two pieces of
legislation that moreover have the effect of forcing same-sex couples to
marry in terms of only one of them. However, this reason could just as
well apply in favour of retaining a broadened version of the Marriage Act
and repealing the Civil Union Act.
(ii) Regarding the uncertain effect of retaining the 1961 Marriage Act on the
"status equality" of same-sex marriages, it is submitted that the entire
reason for this uncertainty would fall away if all spouses were henceforth
to be required to marry in terms of the 1961 Act. This fact alone provides
a good reason for repealing the Civil Union Act. Furthermore, the "status
equality" of same-sex couples would be enhanced by compelling them to
marry in terms of the very Act that traditionally only catered for
heterosexual marriapes.l "
(iii) Although it is true that certain provisions of the Marriage Act are outdated
in as far as they prescribe differing age requirements in order for male and
female minor persons to marry, these and other "outdated" aspects of the
Act are currently receiving legislative attention. The draft Marriage
117
These considerations are of particular relevance as far as Bakker's (2009: 1 et seq) hierarchy
argument is concerned.
776
Amendment Bill, 2009118 inter alia aims to streamline the 1961 Act by
bringing it into line with other legislation and by effecting a number of
technical corrections to the Act.119 An important outflow of this process is
that the 1961 Act will be aligned with the Children's Act 38 of 2005 in as
far as the reduction of the age of majority is concerned and, equally
importantly, regarding the requirements in order for minor persons to
marry. The amending legislation aims to standardise the consent
requirements for boys and girls who wish to marry by requiring all persons
under the age of 15 to obtain the written consent of the Minister of Home
Affairs in order to marry.120 This will imply that all minors of 15 years or
older but under the age of 18 will require parental consent (or the
equivalent thereof) to marry. A minor who cannot obtain parental consent
will be entitled to approach the Children's Court for permission to marry,
provided that such impossibility is not due to a parent's refusal to
consent.!" In the event of refusal, the draft Marriage Amendment Bill
retains the legal position in terms of which the High Court can be
approached for permission to marry, which will be granted if the Court is of
the opinion that the refusal "is without adequate reason and contrary to the
interests" of the applicant minor.122 As an aside, mention must be made of
a problematic aspect of the 2009 draft Bill in that it is silent on whether the
common law minimum age requirements for marriage (presently 14 for
boys and 12 for girls) are to be retained. In this regard the 2009 draft Bill's
predecessor (the draft Marriage Amendment Bill, 2008),123 proposed that
the minimum age for marriage would be set at 12 years for both sexes;124
118 Gazette No. 31864 of 13 February 2009.
119 See the long title to the Bill.
120
Amended section 26. The ages are currently set at 18 for boys and 15 for girls, with the result
that, bearing the common law ages of puberty in mind, boys of 14 years or older but under the
age of 18 require the consent of the Minister while girls of 12 years of age or older but under the
age of 15 require the same.
121 Amended section 25(1).
122 Section 25(4) of the Marriage Act 25 of 1961.
123
Published in Government Gazette 30663 of 14 January 2008 which, incidentally, was the same
Gazette in which the draft Domestic Partnerships Bill, 2008 appeared.
124 Clause 15 of the 2008 draft Bill.
717
a development which would have served to iron out the current gender-
based distinction. If the proposals of the 2009 draft Bill were to be
enacted in their current form, the law of marriage would retain the prima
facie "unjustifiable" distinction between boys and girls.125
In as far as customary marriages are concerned, the Recognition of
Customary Marriages Act 120 of 1998 generally requires all prospective
spouses to be at least 18 years of age,126but permits minor persons to
marry in certain instances provided that the requisite consent is
obtained.!" In many instances these consent requirements are similar to
those prescribed by the Marriage Act and, moreover, Act 120 of 1998
contains a number of cross-references to the consent provisions
contained in the 1961 Act.128 If the latter Act were therefore to be
amended in the manner intended by the Marriage Amendment Bill, this
would imply that these amendments would also pertain to customary
marriages under the 1998 Act. On the other hand, if Bilchitz and Judge's
recommendation in terms of repealing the Marriage Act were ever to be
followed, this would have a definite impact on the Recognition of
Customary Marriages Act as the latter Act would need to be amended.
Moreover, if it is borne in mind that the Civil Union Act prescribes an
absolute age requirement of 18 before two persons may marry or enter
into a civil partnership with one another,129 repealing the Marriage Act
would imply that the legal position would remain inconsistent (and prima
facie unconstitutional) as persons under the age of 18 would then be
permitted to enter into customary marriages but would not be capable of
125
See Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SeA) at par [16].
126 Section 3(1).
127 Section 3(3) - (6).
128
See sections 3(b) and 5.
129
Sinclair 2008: 408 raises the possibility that the age differentiation encountered in the Marriage
Act and the Civil Union Act may have been occasioned "on the 'moral' basis that gay and lesbian
persons under the age of 18 years are too young to be taking a decision to marry. But this is pure
conjecture. A mistaken inconsistency is the more likely answer. Either way, the differentiation
may amount to unfair discrimination, and a constitutional challenge may be lurking here." The
opinion of possible unconstitutionality is shared by Van Schalkwyk 2007: 168.
778
entering into marriages or civil partnerships under the Civil Union Act. It is
submitted that repealing the latter Act and simultaneously updating the
Marriage Act in the manner described above will iron-out these
inconsistencies.P''
(iv) Concerning Bilchitz and judge's argument that the Civil Union Act realises
the goals and objectives of the "transformative" perspective, it has already
been pointed out that the validation of same-sex marriage need only
succeed from the "substantive rights" perspective, and that domestic
partnerships legislation should instead be tasked with the objective of de-
centring marriage.
(v) A final aspect to consider is that the Civil Union Act creates a problem as
far as the position of the marriage officer is concerned. While the
Marriage Act of 1961 permits "religious" marriage officers to refuse to
solemnise marriages that are not aligned with their religious beliefs,131
section 6 of the Civil Union Act goes a step further by permitting even ex
officio marriage officers employed by the state to refuse to solemnise
marriages between persons of the same sex "on the ground of
conscience, religion and belief.,,132 This provision appears to have been
included in the latter Act on the basis of Sachs j's observation in Minister
of Home Affairs v Fourie 133 that the principle of reasonable
130 The draft Domestic Partnership Bill currently prescribes a minimum (and at the same time
absolute) age requirement of 18 years, with the result that different rules are prescribed for
entering into a marriage on the one hand (in terms both of the 1961 Marriage Act and in terms
of the Recognition of Customary Marriages Act 120 of 1998) and for entering into a domestic
partnership on the other. This issue was discussed in Chapter 7 at 6.3.2.2 where it was opined
that although the Legislature is in the best position to decide whether this differentiation should
remain, a minimum age requirement should be retained for the purposes of the unregistered
domestic partnership but not for the registered domestic partnership.
131 Section 31 of Act 25 of 1961.
132 Bonthuys 2008: 474 makes the interesting comment that it is ironic that at the time of voting the
second Civil Union Bill into law in November 2006 the Members of Parliament of the ruling party
(the African National Conference) were not permitted a "conscience vote" while the Act allows
ex officio marriage officials to refuse to solemnise same-sex civil unions on this ground.
133 See note 1.
719
accommodation could possibly permit such officers who had "sincere
religious objections" to same-sex marriages to refuse to solemnise the
sarne.l"
It is interesting to note that a similar debate regarding conscientious
objection has also been raging in the Netherlands, where the Government
Coalition Agreement has permitted registrars to refuse to solemnise same-
sex unions on such grounds since 2007.135 Curry-Sumner'P" reports that
many municipalities nevertheless force registrars to solemnise marriages
regardless of sex, while other permit registrars "to voice their objections
and find an alternative registrar."
Section 6 of the Civil Union Act has come under fire in recent times, with
authors such as De Vas and Barnard!" opining that a provision of this
nature "provides further evidence that [the inequality posed by the Act's
co-existence with the Marriage Act] is perpetuated and not eradicated."
On the basis of similar reasoning Bilchitz and Judge 138 hold that such a
provision cannot be countenanced in that it "reinforces the message that
same-sex relationships, as a class, merit different and unequal treatment
to heterosexual relationships." In a thorough analysis of the matter,
Bonthuys 139 points out that the "cumulative effect" of granting ex officio
marriage officers the right to object coupled with the more rigorous
appointment procedures prescribed by the Civil Union Act140 along with
the effects of "widespread homophobia" could imply that a same-sex
134
Par [159]. Also see Bonthuys 2008: 474.
135 Curry-Sumner 2008: 259.
136 2008: 259.
137
2007: 821. Also see Robson 2007: 430 who opines that this "opt-out" clause is "constitutionally
suspect."
138 2007: 491, 492.
139 2008: 476, 477.
140
In terms of section 5 of the Civil Union Act of 2006 an application must be made both by the
religious organisation or denomination as well as by the prospective marriage officer him or
herself, while section 3 of the 1961 Marriage Act requires only the individual minister of religion
to apply.
780
couple may experience difficulty in finding a civil servant who is willing to
marry them, with the result that such a couple would not have "access to
the basic social services that are freely available to opposite-sex couples."
Bilchitz and Judge conclude that "[p]ublic officials should be required to
uphold the law in an impartial manner and not cast judgment on people
who approach them to fulfil an official function ... public officials should be
bound to apply the law of the country without fear, favour or prejudice."
This sentiment is in essence shared in the Dutch context by Curry-
Surnner''" who opines that:
In the end, the law is, and should always remain, the law. Since marriage as
regulated in Art 1:30, Dutch Civil Code, is a civil ceremony, a civil servant must
abide by the law and execute his or her tasks in accordance with the law.
Allowing registrars to express conscientious objections undermines the very
essence of separation of Church and State, and should not be permitted under
any circumstances.
When transposed into the South African context the opinion expressed by
Curry-Sumner may at first appear unnecessarily rigid. It is however
important to remember that Dutch law is far less accommodating of
religious marriages and marriage officers than South African law.142 It is
submitted that by providing for the latter South African law already
complies with the constitutional imperative to protect religious freedom
regarding marriage-granting a right of conscientious objection to civil
marriage officers may be pushing the boundaries too far, and may violate
the constitutional rights of the same-sex couple in question.143 An
alternative may be to follow the approach alluded to earlier by Curry-
Surnner!" in terms of which a civil marriage officer is permitted to object,
141 2008: 260.
142 See 3.1 above.
143 Bonthuys 2008: 478.
144 2008: 259.
781
but is then obliged to arrange for an alternative marriage officer. Whether
this would be a realistic and constitutionally tenable alternative is however
debatable, for the fact would remain that the objection is based solely on
the sexual orientation of the prospective spouses, a situation which
implies that homophobia is effectively condoned by the State, while no
other form of prejudice is.145 When all is said and done the inescapable
fact remains that in solemnising a marriage a civil marriage officer is
tasked with performing a secular as opposed to a religious function.l'"
For this reason it is submitted that the ability to object on religious grounds
should therefore, as in section 31 of the Marriage Act, be limited to
religious marriage officers.
It is however important to refer to one further observation made by
Bonthuys who states that when the conscientious objection clauses in the
Marriage Act and the Civil Union Act are compared, it becomes clear that
the provision in the latter Act is more widely phrased than its counterpart
in that it allows objections on the basis of "conscience" and "belief' in
addition to those based on religious beliefs per se. As a result she is of
the view that "the legislation, as it stands, does not consistently, rationally
and efficiently protect the religious and conscience rights of marriage
otficers."!" This in turn leads Bonthuys to conclude that any
conscientious objection permitted by same-sex marriage legislation on the
basis of reasonable accommodation should be aligned with the Marriage
Act and therefore limited to religious marriage officers who may object on
145
Bonthuys 2008: 479, 480.
146
Also see Bonthuys 2008: 476. It is a pity that Bekink (2008: 481 et seq) does not comment on par
[159] of the Fourie case (see main text above) regarding the effect that section 6 of the Civil
Union Act has on the "uneasy triangle between secularism, constitutionalism and the right to
freedom of religion" (see note 4 in Chapter 3). While he is absolutely correct in stating that the
failure to ensure that "religious equality" (i.e. the equal treatment of religions) is maintained will
place the "uneasy triangle" in "further jeopardy" (at 497,498), it is submitted that the continued
recognition of section 6 of the Civil Union Act will do the same.
147
Bonthuys 2008: 481.
782
religious grounds only.148 This argument is not only to be supported, but it
also lends further credence to the contention that the expansion of the
Marriage Act so as to encompass same-sex marriage would have been
the better option; hence necessitating the repeal of the Civil Union Act.
4.3.4 Preliminary conclusion
It is submitted that repealing the Civil Union Act would serve to simplify the
complex system of laws that currently regulate inter-personal relationships in
South African family law. The clarifying effect of such a development is perhaps
more strikingly illustrated by way of comparing the following diagram to Figure
8.1 shown earlier in this Chapter:
INTERPERSONAL RELATIONSHIPS IN
SOUTH AFRICA
~~=-M_A_R~R_IA_G_E J~ 1~ Ll_F_E=PA_R_T_N__=E_=R-S1
/ ~ ~,_...-.....----,
CIVIL CUSTOMARY OTHER (PURELY
MARRIAGE MARRIAGE RELIGIOUS)
"MARRIAGES"
Same-sex and , Piecemeal recognitionMonogamous and L _
opposite-sex provided by courtspolygynous customary
couples and legislature;marriages
minimal protection
provided by common
law
Common law Recognition of
and Marriage Customary Marriages
Act 25 of 1961 Act 120 of 1998
Figure 8.2: The legal position after repealing the Civil Union Act 17 of 2006
148 Bonthuys 2008: 483.
783
It is however important to note that repealing the Civil Union Act would obviously
imply that the civil partnership would no longer exist. With a view to ascertaining
whether this would be a salutary development, two important questions need to
be answered, namely (i) what exactly is a civil partnership, and (ii) is the
continued existence of this form of partnership an absolute necessity in view of
the proposed domestic partnership legislation as modified and adapted by the
domestic partnership rubric in Part 3 of this study?
5. IS THERE STILL A NEED FOR THE CIVIL PARTNERSHIP?
If the arguments in 4.3.1.3 pertaining to the needlessness of separate legislation
to validate same-sex marriage without infringing religious freedom are borne in
mind it becomes clear that, in real terms, the Civil Union Act's only contribution is
the introduction of the civil partnership institution. It is however regrettable that
the Legislature made no attempt to define this institution, particularly in view of its
novel nature. It appears that a civil partnership will be used as a vehicle by
means of which the legal consequences of a civil marriage can be attached to an
otherwise non-formalised life partnership (in the narrow sense) 149 without the
parties having to marry one another. Bearing the lack of legal protection
currently provided to unmarried life partnerships in mind (particularly where they
involve opposite-sex couples)"? this institution could surely be of value,
although-as has been seen above-it is debatable whether the civil partnership
provides any real alternative to marriage. The situation becomes even more
complicated when the provisions of the Domestic Partnerships Bill, 2008 are
borne in mind. As seen in the preceding Chapters, this Bill provides for both
registered and unregistered domestic partnerships, and extends many of the
legal consequences of civil marriage to such partnerships. If one considers that
our legal system currently provides for (undefined) civil partnerships and in future
149
See Chapter 4.
150
See Chapters 5 and 6.
784
may provide for registered and/or unregistered domestic partnerships, it
becomes clear-from a purely pragmatic point of view-that this multitudinous,
illogical and overly complicated legal system would be confusing for legal
practitioners, officials and the public.l'" (This confusing picture would be
complicated further by the fact that the term "life partnership" has also become
entrenched in post-1994 South African family law.)152
This raises a further important question: If the 2008 Bill were to be enacted, is
there any room for the civil partnership to co-exist with the registered domestic
partnership? A point of departure from which this question can be answered is to
assume that both institutions exist with a view to providing a means by which life
partners can formalise their unions without marrying one another. Secondly, it
has been seen that a system which merely replicates marriage is undesirable:
What is required is a realistic alternative to marriaqe.l'" However if one
considers the legal position that will obtain if the Bill were to be enacted in its
current form, a problematic state of affairs will arise as, although both forms of
partnership share the same point of departure, a huge distinction exists between
the legal consequences attached to each.154 This is clearly undesirable as there
151 See Goldblatt 2003: 624 and 628 where she opines that recognition of "domestic partnerships"
should involve minimal formality and that any new legislation should be drafted with caution as
"many disadvantaged people may not benefit from new laws. Ignorance of the law, illiteracy and
lack of access to the courts are barriers to justice that face many."
152 See National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
at par [36].
153 See SALRC2006: 320 and Goldblatt 2003: 621, 622 and 7.3.4.2, 7.3.4.3 and 13 in Chapter 7.
154 An example of such a difference is that a registered domestic partnership is not automatically
concluded in community of property (see clause 7(1) of the Bill) while the opposite is true of a
civil partnership, where this regime is the default regime. In addition certain invariable
consequences of marriage (or civil partnership) do not apply to domestic partnerships. For
example, the privilege relating to marital communications (see section 195 of the Criminal
Procedure Act 51 of 1977) applies to married spouses to a civil, customary or religious marriage
(see section 195(2)) and as a consequence, also to partners to a civil partnership (by virtue of
section 13 of Act 17 of 2006). In contrast, the 2008 Bill does not currently provide for the same
privilege to be extended to domestic partners. (This discrepancy is addressed in the rubric-see
6 in Chapter 7). Furthermore, partners involved in a civil partnership will have to divorce one
another in terms of the Divorce Act 70 of 1979 if they wish to terminate their partnership inter
vivos. This implies that all the (patrimonial) consequences of divorce will apply to such a
termination. So, for example, the partners would not be able to rely on the Court's power to
redistribute assets in terms of section 7(3) - (6) of the Act, due (inter alia) to the time limits
785
simply is no logical reason why the law should on the one hand provide for a
form of partnership that is a marriage in all but name, and on the other for a
registered domestic partnership that, despite being based on the identical notion
of consortium omnis vitae, differs so markedly from marriage. While it has
already been seen that the current state of affairs (in terms of which civil
partnership is the only "alternative" to marriage) is problematic, it appears that
the dichotomous approach that would be created by recognising both civil and
domestic partnerships does little more in terms of providing an uncomplicated
and realistic alternative to marriage. In fact, enacting the Bill in its current form
would only serve to superimpose an inchoate domestic partnership regime onto
an already flawed and overly complicated system. It is submitted that this is
precisely where the domestic partnership rubric that has been developed and
applied throughout this study with the precise aim of providing an alternative that
co-exists with (and in so doing supplements) the institution of marriage in a
meaningful, effective and realistic manner, comes into its own. On the basis of
these considerations it is submitted that if the Domestic Partnerships Bill were to
be modelled on the rubric suggested in this study there would be no need for the
"hollow shell,,155civil partnership institution to be available any longer.
6. THE COURSE OF ACTION SUGGESTED
One of the most important differences between the prevailing legal positions in
South Africa and in the Netherlands is that the latter country's family law system
is well-demarcated and clearly regulated.156 Parties wishing to solemnise their
relationships are provided with three options that each function within set
imposed by section 7(3). In contrast, registered domestic partners can terminate their union in a
less formal manner and only need approach the Courts for a termination order where minor
children are involved (clause 15). Regarding the patrimonial consequences of the termination of
the partnership, a redistribution order is competent irrespective of the date on which the
partnership was entered into (see clause 22).
155
To borrow Curry-Sumner's (2008: 274) description of contemporary Dutch law.
156
Also see Smith and Robinson 2008(a): 376 - 379.
786
parameters and exist independently of one another. For example, while Dutch
law draws a clear distinction between marriages and registered partnerships, the
confusing and overlapping terminology such as "civil partnership", "civil union",
"domestic partnership" and "life partnership" proves that the same cannot be said
of South African family law. This notwithstanding, Dutch law can possibly be
criticised for providing two choices that, in the words of Curry-Surnnerl'" are
"more-or-Iess identical." In this regard, the Dutch Legislature may do well to
consider enacting unregistered domestic partnership legislation along the lines of
that proposed in chapter 4 of South Africa's Domestic Partnerships Bill, 2008 (as
adapted in accordance with the rubric).
Second, it is insightful to consider that in Minister of Home Affairs v Fourie158
Sachs j cautioned that:
The circumstances of the present matter call out for enduring and stable legislative
appreciation. A temporary remedial measure would be far less likely to achieve the
enjoyment of equality as promised by the Constitution than would lasting legislative
action compliant with the Constitution.159
The legal position sketched above shows that the Civil Union Act was
unfortunately not the product of "enduring and stable legislative intervention." In
addition, the fact that the Minister of Home Affairs expressly stated that the Act
was merely a temporary measure 160 serves to underscore the contention that the
Legislature paid scant attention to Sachs j's cautionary remarks.
It is submitted that the Civil Union Act is an unnecessary piece of legislation and
that the mere amendment of the Marriage Act of 1961 (in accordance with point
157 2008: 274.
158 2006 (1) SA524 ((C).
159 Par (136).
160 http://196.35.74.234/southafrica/social/0.2172,139205,00.html(accessed on 11 August 2009).
787
(i) of the South African Law Reform Commission's proposalsj'" would have
been a more effective option. This opinion is bolstered by the possibility of the
enactment of domestic partnerships legislation: It stands to reason that such
legislation should be aligned with and should supplement existing legislation
such as the Marriage Act and the Civil Union Act. The problem is however, that
the dichotomy that would be created by the enactment of the Domestic
Partnerships Bill in its current form along with the continued existence of the civil
partnership would not only fail to achieve such an alignment, but would also
create an overly complicated legal position that provides no effective, realistic
and clearly understandable alternative to marriage. On the other hand the
enactment of the modified domestic partnership legislation suggested in this
study will facilitate a better alignment with marriage and will prove that the civil
partnership (as an effective carbon copy of as opposed to realistic alternative to
marriage) is superfluous and unnecessary. In addition, enacting the legislation
while simultaneously repealing the Civil Union Act would imply that the
interpretative and legal anomalies that authors such as Smith and Robinson 162
describe as either being created or perpetuated by the Civil Union Act would fall
away. Such a development would also go a long way towards providing the
means by which not only the pre-eminence enjoyed by marriage could to some
extent be displaced, but also by which better legal protection could be provided
for the vulnerable members to whom Bonthuys 163 refers when she states that the
enactment of same-sex marriage legislation that is effectively based on the civil
marriage "not only reinforces the centrality of existing marriage rules and
requirements, holding them up as the ideal which all should aspire to, but it also
fails to address the inadequacy of marriage law to protect the interests of
vulnerable family members, often women and children."
In the final analysis it must be concluded that the Legislature should dispense
with the Civil Union Act by (i) incorporating same-sex marriage into the Marriage
161 See 2.1 above.
162
2008(a) and 2008(b).
163 2007: 542.
788
Act of 1961,164and (ii) simultaneously doing away with the civil partnership by
replacing it with domestic partnership legislation adapted according to the
domestic partnership rubric.
7. TYING UP THE LOOSE ENDS-THE IMPACT OF THE DOMESTIC
PARTNERSHIP LEGISLATION MODIFIED ACCORDING TO THE
RUBRIC
In the preceding paragraphs a case was made out for repealing the Civil Union
Act, and it is submitted that the progressive effects of this course of action cannot
be ignored. Nevertheless, if one considers Figure 8.2 above, one final aspect
still needs to be considered, namely where exactly the domestic partnership
legislation fits into this framework, and whether any further problematic issues
would remain despite such legislation being enacted.
Throughout this study the problems and anomalies presented by the inconsistent
and fragmented body of law impacting on non-formalised life partnerships in
South Africa have been considered. As from Chapter 3 the suggestion has been
made that domestic partnership legislation developed according to the robust
domestic partnership rubric 165 is required not only to iron-out these
inconsistencies (in this regard it is of the utmost importance to note that many
inconsistencies would remain unless the Domestic Partnerships Bill, 2008 were
adapted in accordance with this rubric),166but also to exist alongside the law of
marriage as a supplementary mechanism by which couples or partners could
164 It goes without saying that the Marriage Act would have to contain a provision guaranteeing the
validity of all marriages and civil partnerships concluded under the Civil Union Act. The Act could
also provide a period of grace within which all civil partnerships could be converted into
marriages or domestic partnerships.
165 See 5 in Chapter 3 for the structure of the rubric.
166 For example, the development occasioned by the case of Du Plessis v Road Accident Fund 2004
(1) SA 359 (SCA) regarding the dependant's claim for damages for loss of support is not catered
for in the 2008 Bill. See Part 3 of this study for an extensive analysis of this and other
discrepancies.
789
regulate and formalise their inter-personal relationships. In addition, the
enactment of such legislation has been found to be essential for the sake of
better protecting vulnerable members of society such as women and children. In
the end result, the enactment of a Domestic Partnerships [Act] modelled on and
adapted according to the rubric would play a vital role in replacing the patchwork
of laws that has resulted from piecemeal legislative and judicial activity with a
coherent, reliable and effective body of law. This can be illustrated as follows:
INTERPERSONAL RElATIONSHIPS IN
SOUTH AFRICA
-: <,
MARRIAGE I I LIFE PARTNERS I
/ 1 <,
CIVil CUSTOMARY OTHER (PURElY
MARRIAGE MARRIAGE RELIGIOUS)
"MARRIAGES"
~ ~ __J________
Same-sex and Monogamous and Piecemeal Domestic
opposite-sex polygynous customary recognition provided partnership
couples marriages by courts and rubric
legislature; minimal
~ protection provided~ by common law
Common law Recognition of , ------------ Domestic
and Marriage Customary Marriages Partnerships
Act 25 of 1961 Act 120 of 1998 Act
Figure 8.3 The legal position after adoption of the proposals made in this Chapter.
The preceding diagram shows that the only problematic aspect that will persist
despite the enactment of domestic partnerships legislation modelled on the rubric
suggested in this study is the inconsistent position pertaining to purely religious
790
marrlaqes.!" The manner in which this difficulty should be resolved however
falls beyond the scope of this study. Nevertheless, the outcome of recently-
commenced litigation in this regard is eagerly antictpated.l'"
8. DIVERGING PERSPECTIVES ON THE WAY FORWARD
8.1 Introduction
In Chapter 3 the conclusion was reached that in post-Apartheid South Africa "the
civil marriage has come full circle in embracing the reforms that have typified the
'second wave' of the Enlightenment contractarian model in foreign
jurisdictions.,,169 The question, however, is whether it is sufficient for the
purposes of this study simply to leave the discussion at that. The preceding
Chapters have clearly shown that it is not; a submission that is confirmed by
various examples from recent case law and legislation that point to the fact that
focussing only on civil marriage has largely become obsolete in present-day
South Africa. These developments include:
o The enactment of the Recognition of Customary Marriages Act 120 of
1998;
• The acknowledgment of the "conjugal relationship between two people of
the same sex" as an independent legal entity 170 and the resultant
167
See 4 in Chapter 3 for a summary of the legal position and recent developments in this regard.
168
In Women's Legal Centre Trust v President of the Republic of South Africa and Others (unreported
judgment of the Constitutional Court (Case CCT 13/09) delivered on 22 July 2009) the
Constitutional Court refused to allow an application for direct access to compel the state to
promulgate legislation that recognised Islamic marriages, and held that it was in the interests of
justice that such an application be exposed to the full spectrum of the judicial process-see 4 in
Chapter 3 where this case is briefly discussed.
169 See 5 in Chapter 3.
170
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at
par [36); De Vos 2007(a): 450.
791
recognition afforded to such couples by the Courts and by the
Legislature; 171and
The piecemeal recognition given to purely religious marriages by case law
and legislation.172
In addition, it has been pointed out173 that there is a need for legislation
developed according to a domestic partnership rubric that exists alongside
marriage that (i) contributes towards a "coherent set of family law rules" by
superseding the "patchwork of laws" that currently regulate non-martial unions;174
(ii) plays a role in de-centralising marriage "as the primary social form, allowing a
diversity of relationships to be recognized in our law,,175and (iii) contributes
towards the "acknowledgment and acceptance of difference,,176by displacing the
"notion of heteronormatlvity."!" In the light of this proposed domestic partnership
legislation, a case has also been made out in this Chapter for repealing the Civil
Union Act 17 of 2006. In the preceding paragraphs the conclusion was reached
that, if the latter Act should be repealed, the sole major problem regarding the
legal recognition of interpersonal relationships would be the persisting invalidity
and consequent piecemeal recognition of purely religious marriages.
These proposals having been made, this concluding note attempts to round off
this study with a few brief observations regarding the significance of this study on
the way forward for South African family law.
171
See Chapters 5 and 6.
172
See 4 in Chapter 3.
173
See 5 in Chapter 3.
174
Quotes taken from Sachs J's judgment in Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC)
at par [125].
175
Bilchitz and Judge 2007: 466.
176
Per Ackermann J in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1)
SA 6 (CC) at par [134].
177 Per De Vos 2007(a): 449.
792
8.2 A brief note on the way forward
A recent contribution by Bakker178 suggests that a hierarchy of intimate
relationships is currently encountered in South African family law as a
consequence of
die traagheid van die wetgewer om afstand te doen van die gemeenregtelike definisie
van die burgerlike huwelik en 'n strewe om die gevolge van die huwelik so ver moontlik
onveranderd te hou en enige akkulturasie teen te staan. Eerder as om die onderskeie
huweliksregsisteme te harmoniseer poog die wetgewer om eenvormigheid van die
huweliksregsisteem te bereik deur die gemeenregtelike huweliksregsisteem op alle
Iewensver houdirngs toe te pas. 179
According to Bakker the heterosexual civil marriage concluded in terms of the
1961 Marriage Act sits at the apex of this hierarchy, followed by civil unions
(marriages or civil partnerships) entered into terms of the Civil Union Act.
Regarding the latter group, heterosexual civil unions are, according to Bakker
more acceptable than homosexual unions, and somewhere between this
hierarchy of marriage and civil union "voer gebruiklike huwelike 'n kwasi
bestaan." The lowest tier will, provided of course that the Domestic Partnerships
Bill is enacted, be occupied by such partnerships, with the registered partnership
enjoying superior status to its judicial-discretion-based unregistered counterpart.
Regarding this state of affairs Bakker180 opines that:
'n Hiërargie van wetgewing wat lewensverhoudings reël erken nie diversiteit nie maar
het ten doelom lewensverhoudings aan 'n maatstaf gebaseer op 'n Christelike en
Westerse lewensuitkyk te meet. So 'n maatstaf is nie aanvaarbaar in 'n samelewing
gebaseer op menswaardigheid, gelykheid en vryheid nie.
178 2009: 15 et seq.
179 Bakker 2009: 16.
180 2009: 18.
793
Bakker proposes that this situation could be resolved if the law were to shift its
point of departure from the institution of marriage to the domestic or life
partnership (to which he refers as a "lewensverhouding"), so that the question
would no longer be whether a particular life partnership resembled marriage, but
instead should be "hoeveel beskerming aan 'n bepaalde spesie van
lewensverhouding verleen moet word.'?" In order to facilitate this new approach
and to counter the problems posed by the prevailing inaccurately drafted
legislation ("onnoukeurige wetsopstelling"), Bakker advocates an approach in
terms of which "secular" legislation akin to the domestic partnerships legislation
contained in the 2008 Bill should be enacted to regulate all (intimate)182
interpersonal relationships by prescribing the minimum requirements to which
such a relationship should adhere and the invariable consequences thus
occasioned, and then permitting the parties to regulate additional matters
contractually. In this regard he opines that:
Dit sal dan moontlik wees vir partye om te kies welke persoonlike regstelselop hulle
lewensverhouding van toepassing moet wees, so kan partye kontrakteer dat
byvoorbeeld Islamitiese reg of gewoonte reg [sic] op hulle huwelik van toepassing moet
wees. Die partye kan kontrakteer of hulle huwelik monogaam of poligeen van aard gaan
wees. Partye kan dan ook self kies wat hulle die lewensverhouding wil noem hetsy In
huwelik, verbinding of deelgenootskap. Ontbinding geskied bloot deur deregistrasie en
kan gepaard gaan met In ontbindingsooreenkoms.183
Where problems arise in terms of such an undertaking, Bakker suggests that the
proposed legislation should vest the Courts with the discretion to intervene. In
this respect he acknowledges that provision should be made for unequal
bargaining positions, by inter alia empowering the Courts to scrutinise unfair
("onregmatige") agreements, and that a Court procedure should be required to
dissolve unions involving minor children. In addition, the legal consequences of
181
Bakker 2009: 18.
182
Bakker does not express himself regarding non-conjugal unions.
183
Bakker 2009: 19.
794
non-formalised unions should be adjudicated on an ad hoc basis provided that
certain minimum requirements posed by the legislation are met. In the end
result, Bakker agrees with an opinion expressed by Labuschagne 184 to the effect
that humankind's desire for autonomy and individualism requires interpersonal
relationships to be controlled by the parties themselves and for the community
and the State to play a minimal role:
Die huidige strewe na die erkenning van lewensverhoudings buite die huwelik en
geloofshuwelike om gevolg te gee aan kulturele, religieuse en sosiale diversiteit skep die
ideale geleentheid om staatsbetrokkenheid sover moontlik uit lewensverhoudings te
verwyder. Op grond van menseregte oorwegings is dit egter nie moontlik om
staatsbetrokkenheid geheel en al uit lewensverhoudings te verwyder nie. Die staat sal
altyd 'n belang by die beskerming van die individu hê. Tog moet die individu sover
moontlik die vryheid gegun word om volgens sy/haar kulturele en religieuse oortuigings
te leef.185
In response to Bakker's views, a few comments are apposite, particularly in view
of the conclusions reached and proposals made in this study. These comments
relate, on the one hand, to the role played by the State in regulating interpersonal
relationships, and to the interrelationship between the hierarchy of relationships,
and the issues of legal certainty and autonomy on the other.
(i) The role played by the State
Bakker's comments regarding the role ideally to be played by the State in
regulating interpersonal relationships creates the impression that he is of the
opinion that the State's role is overemphasised in the dispensation that currently
prevails as well as the one that will prevail once the Domestic Partnerships Bill,
184
Labuschagne (1989: 374) wrote that " ... menslike waardigheid en outonomie [verg) dat die
huwelik sover moontlik uit die gemeenskapsbeheer onttrek word en oorgelaat word aan beheer
van die betrokke partye self, sodat hulle hulle verhouding by wyse van konsensus kan reël."
185 Bakker 2009: 19 (emphasis added).
795
2008 is enacted .186 It is submitted that the enactment of the Domestic
Partnerships Bill as modified in this study shows that this is not the case. A
proper consideration of this submission requires an understanding of the
interrelationship between two crucial components of the regulation of
interpersonal relationships, namely autonomy and State regulation. Assuming
that domestic partnerships legislation is indeed enacted, this interrelationship can
be illustrated as follows:
• Autonomy: The regulation of interpersonal relationships must recognise
the autonomy of the individuals concerned for, as Ackermann j stated in
National Coalition for Gay and Lesbian Equality v Minister of Justice,187
"[the constitutional right to privacy] recognises that we all have a right to a
sphere of private intimacy and autonomy which allows us to establish and
nurture human relationships without interference from the outside
community." Recognition of autonomy entails, inter alia, that the legal
framework must provide context-specific protection of the consortium
omnis vitae188and must recognise the so-called "dignity of difference.,,189
As an outflow hereof, a couple should be free to determine the extent of
formal and public recognition to be accorded to their union and the
religious significance (or otherwise) attached thereto, and must be allowed
to elect whether their union is to be governed by civil or customary law. A
couple must however take cognisance of the fact that context-specific
recognition of their consortium entails that the extent of recognition of the
same is determined inter alia by the degree of public commitment
involved. So, for example, while parties to a purely religious marriage
could conceivably approach the Courts for an order that recognises a
consortium identical to that created by a valid marriaqe.l'" parties to a
186
Bakker does not suggest any modifications to the Bill.
187
1999 (1) SA 6 (CC)at par [32].
188
See 5 in Chapter 3 and 6 and 11.9 in Chapter 7.
189
See Robinson v Volks NO 2004 (6) SA 288 (C) at 299 (D) - (E).
190
See 5 in Chapter 3.
796
non-formalised relationship (that complies with the minimum requirements
set by legislation such as chapter 4 of the modified Domestic Partnership
[Act]) would most likely at best be able to rely on a consortium that binds
only themselves and neither outsiders nor the State.191
o State regulation: While the role of the State should as far as possible be
kept to the minimum, there are limits beyond which this cannot be
pressed, particularly where human rights issues arise.192 The role of the
State in regulating interpersonal relationships is currently limited to the
position as set out in Figure 8.1, which implies that unions not recognised
as valid marriages or as civil partnerships enjoy only the piecemeal
recognition provided by the Courts and the Legislature,193 with minimal
protection being provided to such unions by the common law (for example,
by the universal partnership ).194 The position will however change if
domestic partnership legislation is enacted, as, over and above the
registered domestic partnership option, the statutory recognition of claims
instituted at the termination of the so-called "unregistered domestic
partnership" will imply that the State will potentially play a more prominent
role even in relationships that have not been formalised in any way. The
increasing role played by the State in this manner is to be supported,
particularly in terms of recognising the consortium omnis vitae that exists
between persons involved in non-formalised relationships and also in
terms of acknowledging its responsibility to protect the vulnerable
members of relationships in which no real choice of formalisation is
present, such as those affected by unequal power relations or those
discouraged from formalising their unions due to homophobia or bigotry.195
191 See 11.9 in Chapter 7.
192 See for example Bakker 2009: 18, 19.
193 See Chapters 5 and 6.
194 See Chapter 6.
195 See Goldblatt 2003: 615, 616 for a concise discussion of the merits of State regulation.
797
It is essential that there must be an interrelationship between autonomy and
State regulation. So, for example, the extent to which the consortium omnis vitae
is protected against outside interference will depend on the extent of State
regulation applied to the union which, in turn, is dependent on the degree of
public commitment that is a decision to be made on the basis of an autonomous
choice. Further, while it is essential that the State must play a role in regulating
all forms of interpersonal relationships, the principle of autonomy will dictate that
State regulation has certain limits beyond which it cannot be pressed. For
instance, while matrimonial property law provides an ex lege legal framework for
regulating the proprietary consequences when a marriage is terminated by
divorce, the same does not hold true in the case of the termination of an
unregistered domestic partnership. Consequently, an individual who was a party
to the erstwhile partnership is free to exercise an autonomous choice regarding
whether or not to institute a claim for property division-he or she must opt-in to
the legislative framework as the law will not intervene of its own accord. On the
other hand, autonomy must at times be limited by State intervention, by, for
example, ensuring that the parties have a more limited degree of freedom
relating to the termination of their union where children are involved. Finally, it is
important to note that the Constitution, 1996 also plays an important role
regarding the interrelationship of autonomy and State regulation by, for example,
providing the means by which the Courts adjudicate whether the autonomous
choice made regarding the nature and structure of a particular relationship (such
as, for example, a purely religious Islamic marriage 196 or another less
196
See for example Hassam v Jacobs NO and Others (unreported judgment of the Constitutional
Court (Case CCT 83/08) delivered on 15 July 2009) where the concept of "transformative
constitutionalism" that is informed by "the new ethos of tolerance, pluralism and religious
freedom" (see par [28] of the judgment where Nkabinde J quoted Mahomed CJ in Amod v
Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4)
SA 1319 (SCA) at par [20]) was employed in interpreting the Intestate Succession Act 81 of 1987
and concluding that the words "or spouses" should be read into the Act in order for it to provide
for polygynous (Islamic) marriages (see Chapter 3 note 73 where the question is asked as to
whether the Court's order is indeed restricted to Islamic marriages). For a discussion of what the
concept of transformative constitutionalism entails see Klare 1998: 150 who describes it as "a
long-term project of constitutional enactment, interpretation and enforcement committed ... to
transforming a country's political and social institutions and power relationships in a democratic,
798
conventional relatlonshlp)!" should qualify for State recognition and regulation.
Furthermore, while the Constitution requires that the "dignity of difference,,198of
individuals is respected, it also enjoins the State to comply with its constitutionally
imposed obligations towards the parties themselves, their children and outsiders
to the relationship.
This illustration shows that the State presently plays a vital role in regulating
interpersonal relationships. It is consequently difficult to imagine how the
legislation proposed by Bakker could diminish this role any further.
(ii) Hierarchy, autonomy and legal certainty
Bakker's perceptions regarding the hierarchy of relationships currently
encountered in South African law are also worthy of further consideration. In this
regard, the first part of this Chapter has proposed that the Civil Union Act 17 of
2006 should be repealed with the result that all civil marriages should henceforth
be concluded in terms of the Marriage Act 25 of 1961. Furthermore, it has also
been proposed that ex officio marriage officers should no longer be permitted to
refuse to solemnise marriages involving same-sex couples.l'" It is submitted that
these developments would remove the perceived lesser status of same-sex and
opposite-sex civil unions, at least as far as marriage is concerned. The problem
would however remain that relationships other than marriage would most likely
still be perceived as being of inferior status to marriage. In this regard, it is
submitted, as seen above, that the modifications to the proposed domestic
participatory, and egalitarian direction [that] connotes an enterprise of inducing large-scale
social change through nonviolent political processes grounded in law." Also see Langa 2006: 351
et seq who in essence opines that "transformative constitutionalism" involves moving towards "a
truly equal society" by way of a "social and economic revolution" that occurs in conjunction with
a transformation of the legal culture and is based on the realisation that transformation is an
ongoing process that must constantly be "promote[d] and sustainled]."
197 De Vos (2004: 198 at note 76) mentions examples such as "a male and female same-sex couple
who decide to beget and raise children together as a family; or where more than two individuals
in an intimate relationship with the others decide to beget and raise children ..."
198 See Robinson v Volks NO 2004 (6) SA 288 (C) at 299 (D) - (E).
199 See 4.3.3 above.
799
partnerships legislation occasioned by the domestic partnerships rubric would
provide legislation that plays a role in de-centralising marriage "as the primary
social form,,2oo and contributes towards displacing the "notion of
heteronormativity.F?' In addition, the modifications to the Domestic Partnerships
Bill suggested in Chapter 7 would also provide an alternative means by which
parties to purely religious marriages could secure better recognition of their
relationships and would also facilitate better recognition of polygamous
relationships.202 Nevertheless, it is conceded that despite this development,
some form of perceived hierarchy could still remain. It is however submitted that
while any residual hierarchy may be a perceived hierarchy, this does not mean
that it is a legal or juridical hierarchy, and, moreover, that it is unconstitutional.
Indeed, it is submitted that this is where a proper understanding of autonomous
choice comes into play. In his dissenting minority judgment in Volks NO v
Robinson203 Sachs j made the following perceptive remarks pertaining to
respecting autonomy:
Respecting autonomy means giving legal credence not only to a decision to marry but to
choices people make about alternative lifestyles. Such choices may be freely
undertaken, either expressly or tacitly. Alternatively, they might be imposed by the
unwillingness of one of the parties to marry the other. Yet if the resulting relationships
involve clearly acknowledged commitments to provide mutual support and to promote
respect for stable family life, then the law should not be astute to penalise or ignore
them because they are unconventional. It should certainly not refuse them recognition
because of any moral prejudice, whether open or unconscious, against them.204
This remark reiterates the need (as explained above) for the law as far as
possible to respect the autonomous choices made by individuals regarding their
relationships. However, as seen throughout this study, it is when no such choice
200
Bilchitz and Judge 2007: 466.
201 PerDe Vos 2007(a): 449. See note 106 in Chapter 3.
202
See 3, 5 and 11 in Chapter 7.
203
2005 (5) BCLR446 (CC).
204
Par [156] (emphasis added).
800
is possible that the law should intervene (or at least provide the means to
intervene). In this regard, the contextualised choice model has been developed
and applied to the modified Domestic Partnerships Bill in Part 3 of this study. In
so doing, the modified Bill will comply with the injunction imposed on the law to
intervene where no real choice of formalisation presented itself. The law cannot
necessarily be expected to intervene where a clear and legally-valid autonomous
choice was indeed exercised, even if that choice relates to a hierarchy of
relationships. It is submitted that this is where a true understanding of autonomy
comes in: If the parties exercise a truly autonomous choice to enter into any
given relationship (for example marriage or registered domestic partnership) they
also choose to enter into the hierarchy that prevails. The law can only intervene
if that hierarchy is, or leads to consequences that are, unconstitutional. In this
regard it is of crucial importance to note that where the parties have indeed
exercised an autonomous choice, the modifications proposed to the Bill in Part 3
(Chapter 7) of this study achieve a better alignment between the legal
consequences of and protection enjoyed by marriage with those of the domestic
partnership than originally provided by the Bill. The implementation of these
proposals coupled with the repealing of the Civil Union Act would substantially
deconstruct the hierarchy to which Bakker refers, thereby-it is submitted-
greatly reducing any remaining risk of unconstitutionality.
The final comment regarding Bakker's proposals pertains to the issue of legal
certainty. In this regard it submitted that his proposal of a sole "secular" Act
based on life partnerships is untenable from the point of view of ensuring legal
certainty. It appears that what Bakker would have the Legislature do is to topple
the entire structure of family law overnight and to replace it with a generic Act
that relies largely on the law of contract to regulate aspects which may be of
extreme importance not only to the couple itself but also to outsiders. All of this
would, it appears, be done in the name of ensuring that no hierarchy of
relationships exists and in the interests of compensating for inaccurate
legislation. The question is, is this really necessary? It is submitted that-
801
bearing in mind not only that the existing hierarchy would be substantially
reduced by the proposals made in this study but also that these proposals were
made largely with a view to ensuring legal certainty and removing the "patchwork
of laws,,205that currently exists-the answer to this question must be in the
negative. In the end result, it is submitted that greater legal certainty will be
achieved by implementing the proposals in this study than by adopting the drastic
measures proposed by Bakker.
8.3 Conclusion
It is submitted that due recognition of comments (i) and (ii) in the preceding
paragraph leads to the conclusion that the implementation of the proposals in this
study will succeed in achieving an acceptable midway between Bakker's calls for
the outright removal of the prevailing hierarchy and enactment of new legislation
while still maintaining an acceptable level of State regulation and ensuring legal
certainty.
9. CONCLUSION
This Chapter concludes that the Civil Union Act is an unnecessary and confusing
piece of legislation and that, when compared to Dutch law, South African family
law is supererogatory and overly complicated and therefore out of touch with the
needs of South African society. This unfortunate state of affairs arose as a result
of critical errors made by both the South African Law Reform Commission as well
as the Legislature in its response to the Constitutional Court's decision in Minister
of Home Affairs v Fourie.206 This much becomes evident when it is considered
that:
205
See Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) at par [125].
206
2006 (1) SA 524 (CC).
802
• The Civil Union Act is problematic from an interpretative point of view,
leading to unnecessary confusion;
• The Civil Union Act has in certain instances created-and in others
perpetuated-a number of legal anomalies;
• The Civil Union Act does little to address the policy decision taken by the
South African Law Reform Commission as far as religious autonomy and
moral objections to same-sex marriage are concerned as the concept of a
"civil union" is merely semantic and there is no de iure difference between
a civil marriage in terms of the Marriage Act and a marriage in terms of the
Civil Union Act;
• Nevertheless, if homosexual marriages could in principle take place in
terms of the Marriage Act (which, it must be remembered, is only
concerned with marriage as a secular institution), religious autonomy
could still have been maintained within the existing framework of the
Marriage Act as section 31 of the Act allows marriage officers to refuse to
solemnise marriages that conflict with the viewpoints of their religions; and
• The validation of same-sex marriage should not be tasked with de-
centring marriage as the primary form of interpersonal relationship in
South Africa. Instead, this task should be accomplished by legislation that
is modified and calibrated according to the domestic partnership rubric
that was developed in this study. Enacting such legislation would
furthermore not only succeed in providing a realistic alternative to
marriage, but would simultaneously facilitate doing away with the civil
partnership.
In the end result, it is proposed that the Civil Union Act should be repealed.
In the second part of this Chapter diverging perspectives on the way forward for
family law were discussed. In this regard the conclusion was reached that the
proposals made in this study negate the need for the implementation of
803
Bakker's207drastic proposal to replace the existing family law legislative structure
with a single uniform Act akin to the Domestic Partnerships Bill of 2008.
207 2009: 1 et seq.
805
CHAPTER 9:
CONCLUSION
1. The analysis of the development of matrimonial law and the juxtaposition of the
development of marriage in pre-1994 South Africa with the global development of
marriage in the Western legal tradition conducted in Chapter 2 leads to three
major conclusions:
1.1 Although the question as to whether the Dutch settlers at the Cape of Good Hope
were vested with the competence to legislate has no clear-cut answer, the
broader interpretation of the 1602 charter under which they received their
instructions may permit the inference that the same was in fact granted to them.
Nevertheless, the Political Ordinance of 1580 as (most likely inadvertently)
applied in Batavia and consequently at the Cape of Good Hope implies that
family law constitutes one of the building blocks of the common law as it is still
applied in South Africa today.
1.2 Second, there can be no doubt that the South African law of marriage as it
existed at 27 April 1994 was "concerned with marriage solely as a secular
lnstitutlon." Nevertheless, while gradually beginning to align itself with many of
the reforms occasioned by the general shift in Western jurisdictions towards the
"contractarian" model of marriage during the final decade of Apartheid rule, South
African matrimonial law confined itself to recognising and regulating the civil
marriage inherited from the Western legal tradition, with the result that it refused
(inter alia) to broaden the essence and objective hallmark of marriage as
embodied in the concept of consortium omnis vitae beyond the monogamous
heterosexual marriage so as to embrace any form of plurality.
Per Farlam JA in Minister of Home Affairs v Fourie 2005 (3) SA 429 (SeA) at par (78).
806
1.3 Finally, Chapter 2 also concludes that the problems encountered in the wake of
the global shift towards a contractarian model of marriage cannot be solved by a
reversion towards the pre-Enlightenment models of marriage (a development
which on the contrary could in fact exacerbate these problems), but that it is
imperative for legislation to be enacted on the basis of a domestic partnership
rubric that provides legal recognition to relationships outside of marriage and
adequately protects the men, women and children involved in such relationships,
and the outsiders who deal with them.
2. In Chapter 3 the post-1994 developments in South African family law are
considered, and the conclusion is reached that interpersonal relationships in
South Africa are currently governed by an incoherent interpersonal relationship
framework, thereby making the enactment of "catch-al!" domestic partnership
legislation that is developed on the basis of a robust domestic partnership rubric
essential. The conclusion is also reached that an essential feature of such
legislation would be for it to provide context-specific recognition of the consortium
omnis vitae that exists between such partners, in the sense of differentiating
between the extent to which consortium is recognised in formalised versus non-
formalised domestic partnerships. As far as the composition of the rubric is
concerned, the conclusion is reached that the draft Domestic Partnerships Bill of
2008 should constitute the legislative substructure of the rubric, which Bill is then
(i) to be modified in the light of conclusions drawn in consequence of an in-depth
analysis of case law, common law and legislation impacting on unmarried
couples, and (ii) to be calibrated with attendant legislation.
3. After considering the various terms used to describe the incidence of non-marital
unions in Chapter 4, the conclusion is reached that the narrow sense of the term
In this sense, "catch-all" implies that the legislation should cater for both formalised and non-formalised
relationships by permitting the partners to elect to formalise their relationships (such as by registration)
as well as, in the alternative, that the legislation should-under the so-called "judicial-discretion model"-
permit an application to Court to be brought at the termination of a non-formalised partnership that
permits a Court to grant relief (for example, in the form of maintenance or property division) to one of the
partners to a relationship that satisfies the criteria posed by the legislation.
807
"life partnership" should-in the interests, inter alia, of not confusing it with the
terminology employed by the Domestic Partnerships Bill, 2008-as far as
possible be utilised for the purposes of conducting the analysis of case law,
common law and legislation that takes place throughout Part 2 of the study.
4. Chapter 5 is dedicated to the analysis of post-1994 case law involving
heterosexual and homosexual life partnerships. In this regard one of the major
focal areas of this Chapter is the so-called "choice argument" in terms of which it
is generally argued that persons who have chosen not to marry one another are
not entitled to the protection provided to married spouses by matrimonial
(property) law. The impact of the legalisation of same-sex marriage in this regard
is considered, and the conclusion is reached that the "lived reality" experienced
by both heterosexual and homosexual unmarried couples in contemporary South
African society implies that neither same-sex nor opposite-sex couples
necessarily have the option of marriage available to them. Nevertheless, in
terms of the preliminary "contextualised choice model" that is developed in that
Chapter it is found that the choice not to marry cannot be discarded completely,
and that, drawing from Canadian jurisprudence, a distinction may be drawn
between claims based on need and those involving property disputes. In the
former regard, the model holds that choice is irrelevant and that such claims are
permissible provided that a reciprocal duty of support existed while the
relationship subsisted, while in the case of claims based on property disputes, a
clear choice hot to marry could possibly justify the refusal to extend matrimonial
property law in order to resolve the dispute. A further conclusion reached in
Chapter 5 is that the Courts have not yet fully extended consortium omnis vitae
to unmarried life partners. Finally, it is concluded that various provisions of the
Children's Act 38 of 2005 require amendment in order (i) to be aligned with the
Constitutional Court's pronouncement in J v Director General, Department of
Home Affairs, and Others3 and (ii) to ensure a consistent legal position regarding
2003 (5) SA 621 (CC).
808
children conceived by artificial fertilisation and those born in terms of surrogacy
agreements.
5. As far as the protection provided by the law of obligations is concerned, it is
pointed out in Chapter 6 that neither proprietary estoppel nor unjustified
enrichment provides a viable protective mechanism for life partners. The same
could also be said for the (constructive) trust which, although providing a
valuable means of protection in a jurisdiction such as England, is not recognised
in South Africa. As far as the law of contract is concerned, although valuable
protection can be ensured by means of a life partnership agreement or by relying
on the existence of a universal partnership, the major problem encountered in the
context of such protection is the relatively high level of sophistication required in
order for it to be effective. In this Chapter it is also seen that the positive law
currently dictates that no protection is provided to a "second spouse" to an
existing civil rnarriaqe:" a situation which, unfortunately is out of touch with the
rationale behind the putative spouse doctrine and is one which cannot be
countenanced. The possible development of the legal position in this regard is
proposed, and it is submitted that such a development may have important
implications for a life partner who is involved in a partnership with someone who
is still a party to a subsisting civil marriage with a third person. The analysis of
legislation impacting on life partnerships in the second part of the Chapter
reveals that such legislation employs diverging and inconsistent terminology and
that certain Acts are prima facie unconstitutional. It is concluded that legislative
intervention is urgently required in this regard.
6. In Part 3 (Chapter 7) the domestic partnerships rubric is put into action. The
following remarks are apposite in this regard:
Zulu v Zulu and Others 2008 (4) SA 12 (D).
809
6.1 The application of the rubric commences with an analysis of the scope and ambit
of the draft Domestic Partnerships Bill of 2008 in consequence of which it is inter
alia found:
6.1.1 That the preamble to the Bill should be amended; and
6.1.2 That the Bill should cater for so-called "care partners" in its chapter dealing with
unregistered domestic partnerships (chapter 4).
6.2 An analysis of the prospective legal position under the Bill vis-a-vis pre-Civil
Union Acf case law reveals that although no major discrepancies are
encountered within the context of the registered domestic partnership, significant
discrepancies present themselves in the unregistered domestic partnership
setting as far as the reciprocal duty of support (particularly regarding claims for
loss of support) and the legal position of children are concerned. Measures to
address these discrepancies are proposed later in the Chapter.
6.3 An assessment of the need to modify the formal and substantive requirements
for the entering into and recognition of registered domestic partnerships as well
as the role (if any) to be played by the putative spouse doctrine reveals the need
for legislative amendments in respect of grounds that do not nullify domestic
partnerships (such as defective registration) and the concomitant need for a
contextualised form of the putative spouse doctrine to play a role in as far as
invalid domestic partnerships are concerned. The legislative prescription of
various other formal requirements (such as witnessing and identification
documents) is also proposed.
6.4 Regarding the concept of consortium omnis vitae, the conclusion is reached in
Chapter 7 that the act of entering into a registered domestic partnership should
entail that a consortium that is identical to that created by marriage is recognised
17 of 2006.
810
and protected by domestic partnership legislation. As far as the unregistered
domestic partnership is concerned, it is concluded that a contextualised form of
consortium that is recognised inter partes only should be recognised.
6.5 Various amendments are proposed regarding the property regime and the
termination of the registered domestic partnership. In the interests of avoiding
unnecessary repetition, these amendments will not be discussed here as they
are considered fully in paragraphs 7 and 9 of the Chapter in question. It is
however important to note that the preliminary "contextualised choice model" is
updated so as to conclude that, within the context of property disputes, the
refusal to permit the extension of matrimonial property law to solve a dispute
involving unmarried partners can only be justified if domestic partnership
legislation provides an effective and well-defined alternative to matrimonial
property law. As the Domestic Partnerships Bill does not do so, it should be
amended so as to empower a Court to permit such an extension to take place in
apposite circumstances.
6.6 The enactment of registered domestic partnership legislation will necessitate the
amendment of a number of statutes that will otherwise not provide due
recognition of such partnerships. In this regard a number of examples are
considered including the Marriage Act 25 of 1961, the Recognition of Customary
Marriages Act 120 of 1998 and the Wills Act 7 of 1953.
6.7 A number of vital conclusions are reached in paragraph 11 of Chapter 7 which is
dedicated to a detailed analysis of the unregistered domestic partnership as it
appears in chapter 4 of the Bill. These include:
6.7.1 The necessity of the provision of an appropriate threshold criterion which must
(as the preliminary enquiry) be satisfied before any specific claim under the
legislation (such as a claim for property division) is to be adjudicated;
811
6.7.2 As far as need-based claims under chapter 4 of the Bill are concerned (such as
maintenance and succession), the crucial conclusion is reached that, in the light
of the "contextualised choice model," the presence of a reciprocal duty of support
that existed during the relationship is a sine qua non for any such claim to be
granted;
6.7.3 Regarding property disputes, the conclusion is reached that even in the event of
a clear choice not to marry (or, for that matter to enter into a registered domestic
partnership) being evident, the law should still provide adequate protection for an
applicant partner involved in such a non-formalised relationship. Nevertheless, it
is opined that provided the modifications suggested for the Bill are indeed
adopted, the Bill should comply with the adequate protection requirement, with
the result that the refusal to extend the protection any further could possibly be
justified on the basis of the choice not to marry or to formalise the union in any
other way. It is however submitted that such a scenario would be unlikely in view
of the more comprehensive protection offered to unregistered domestic partners
by the modified Bill.
6.8 The final facet of the rubric involves the calibration of the newly-modified
Domestic Partnerships Bill with legislation that already provides some form of
recognition of or protection for domestic or life partners. In this regard a
significant number of amendments are proposed in paragraph 12 of Chapter 7.
7. In the final Part of this study (Part 4; Chapter 8) the conclusion is reached that
the Civil Union Act 17 of 2006 should, in view both of the enactment of domestic
partnerships legislation in accordance with the rubric and the uncertainty and
confusion which the Act creates, be repealed. The Chapter closes with a
consideration of the way forward for South African family law and concludes that,
despite recent calls for the deregulation of marriage and a completely new
statutory dispensation," the proposals made in this study are to be preferred as
6 See Bakker 2009: 1 et seq.
812
they succeed in attaining certain commendable objectives behind these drastic
proposals while still maintaining an acceptable level of State regulation and
ensuring that legal certainty is not compromised.
813
SUMMARY lOPSOMMING
In strictly adhering to the concept of marriage inherited from the Western legaltradition, pre-1994 South African family law paid scant regard to marriages otherthan monogamous heterosexual civil marriages, while the common law provided no
express legal recognition for unmarried life or domestic partnerships. The advent of the
democratic constitutional era in 1994 however spawned a flurry of legal development
that broadened the notion of marriage by recognising customary marriages as well as
certain consequences of marriages concluded according to the tenets of a recognised
faith such as Islam. Commencing with the watershed National Coalition for Gay and
Lesbian Equality cases,' the legal position in which same-sex life partners found
themselves was also dramatically improved by a number of ad hoc judicial
pronouncements which extended certain consequences of marriage to such partners on
the premise that they were at the time precluded from marrying one another. The
flipside of this premise-namely that heterosexual life partners have always been
permitted to marry one another and thus cannot request an extension of matrimonial
(property) law where they have exercised a choice not to marry (the so-called "choice
argument")-was, however, to constitute the major justification for the judiciary's refusal
to extend similar recognition to heterosexual life partners. The application of this line of
reasoning has implied that, within little more than a decade into the democratic
constitutional dispensation, same-sex life partners ostensibly enjoy better legal
protection and recognition of their relationships than their heterosexual counterparts.
This state of affairs implies that the current legal position regarding unmarried life
partners is inconsistent and fraught with anomalous legal consequences.
In National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) the
Constitutional Court struck down the crime of sodomy as well as certain other laws that prohibited male-
to-male sexual relations, and in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1 (CC) the same Court, inter alia, specifically recognised "conjugal relationship[s] between two
people of the same sex" as "another form of life partnership" distinct from marriage (at par [36]) and also
recognised the ability of such couples "to establish a consortium omnis vitae" (at par [53]).
814
Over and above the judicial developments, post-1994 legislation has also provided
increasing recognition for unmarried life partners. However, as was the case with the
judicial developments, the legislative developments were also merely piecemeal in
nature. The upshot of this state of affairs is that interpersonal relationships in South
Africa are governed by "a patchwork of laws that did not [and still do not] express a
coherent set of family law rules."
While the validation of same-sex marriages by way of the promulgation of the Civil
Union Act 17 of 2006 was a salutary development from a human rights perspective, this
development has created difficulties of its own. To begin with, the validation of same-
sex marriage implies, strictu sensu, that the "choice argument" applies equally to same-
sex couples who elect not to marry one another. This entails that such couples could
potentially be deprived of the consortium omnis vitae that the Courts have in principle
found to exist between them and that they may no longer be able to rely on the
piecemeal judicial extensions granted by the Courts prior to 30 November 2006 (the day
on which same-sex marriage became permissible). The legal position in this regard
however remains unclear. In addition, the validation of same-sex marriage has been
accomplished by way of legislation that not only requires same-sex couples to marry
one another in terms of separate legislation but that also further overcomplicates the
legal landscape by providing for "civil unions" that can take the form of either marriages
or civil partnerships. As such, no legislation has as yet been enacted that deals with the
position of life or domestic partners per se.
In January 2008 a draft Domestic Partnerships Bill, 2008 saw the light of day. Using
this Bill as a prototype, this study attempts-by applying a domestic partnership rubric
that requires the modification of the Bill and its calibration with attendant legislation-to
iron out the inconsistencies and anomalies alluded to above by providing effective
domestic partnership legislation. In order to achieve this, an in-depth analysis of case
law, legislation and common law is conducted with a view to establishing certain
Per Sachs J in Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian &
Gay Equality Project v Minister of Home Affairs 2006 (1) SA 524 (CC) at par [125).
815
fundamental principles that ought not only to feature in the domestic partnerships
legislation itself, but which are also required in order to facilitate the Bill's alignment with
applicable legislation. In the light of the modified Bill, the study concludes with an
evaluation of the case for retaining the Civil Union Act 17 of 2006. In the final analysis,
the conclusion is reached that the enactment of the Domestic Partnerships Bill as
developed in accordance with the rubric, coupled with the repeal of the Civil Union Act
17 of 2006, will provide a more consistent, coherent and less complex legal framework
within which interpersonal relationships in South Africa can be regulated.
DIE ONTWIKKELING VAN DIE SUID-AFRIKAANSE HUWELIKSREG MET
SPESIFIEKE VERWYSING NA DIE BEHOEFTE AAN EN TOEPASSING VAN "N
HUISHOUDELIKE DEELGENOOTSKAPSRUBRIEK3
Deur die huweliksbegrip soos van die Westerse regstradisie geërf streng na tevolg, het die Suid-Afrikaanse familiereg voor 1994 wynig aandag aan anderhuwelike dan die heteroseksuele monogame siviele huwelik gegee. Die
gemenereg het geen uitdruklike erkenning aan buite-egtelike lewensverhoudings
(oftewel huishoudelike deelgenootskappe) verleen nie. Die koms van die demokratiese
grondwetlike bestel in 1994 het egter 'n vlaag van regsontwikkeling ontketen. Die
huweliksbegrip is verbreed deur onder andere die erkenning van gebruiklike huwelike,
asook die erkenning van sekere regsgevolge van huwelike wat ingevolge erkende
geloofstelsels soos Islam gesluit is. Na aanleiding van die waterskeidende National
Coalition for Gay and Lesbian Equality-sake4 is die posisie waarin homoseksuele
Die skepping van die term "huishoudelike deelgenootskap" ("domestic partnership") kan aan Bakker
(2009: et seq) toegeskryf word.
In National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) het die
Konstitusionele Hof die kriminalisering van sodomie asook dié van ander seksuele aktiwiteite tussen mans
ongrondwetlik verklaar en in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1 (CC) het dieselfde hof inter alia spesifieke erkenning verleen aan "conjugal relationship[s)
between two people of the same sex" as "another form of life partnership" wat losstaan van die huwelik
(op par [36)) en het ook partye tot sodanige verhoudings se vermoë "to establish a consortium omnis
vitae" (op par [53)) erken.
816
lewensmaats hulself bevind het stelselmatig deur 'n aantal ad hoc hofuitsprake waarin
sekere gevolge van huweliksluiting na sodanige verhoudings uitgebrei is, aansienlik
verbeter. Die uitgangspunt vir hierdie ontwikkeling was die feit dat partye van dieselfde
geslag op daardie stadium nie regtens met mekaar kon trou nie. Die omgekeerde van
hierdie uitgangspunt-dat heteroseksuele lewensmaats nog altyd die keuse gehad het
om met mekaar in die huwelik te tree en derhalwe nie geregtig kan wees om te versoek
dat die huweliks(goedere)reg na hul verhouding uitgebrei kan word waar hulle gekies
het om nie te trou nie (die sogenaamde "keuse-argument")-was die vernaamste rede
vir die howe se weiering om soortgelyke erkenning aan heterosekuele
lewensverhoudings te gee. 'n Uitvloeisel van die toepassing van hierdie redenasie is
dat homoseksuele lewensmaats, binne net meer as 'n dekade van die bestaan van die
demokratiese grondwetlike bestel, skynbaar beter regsbeskerming en -erkenning van
hul verhoudings geniet as dié van hul heteroseksuele eweknieë. Hierdie stand van
sake impliseer dat die huidige regsposisie ten aansien van ongetroude
lewensvershoudings deurspek is met inkonsekwensies en onreëlmatighede.
80- en behalwe die ontwikkeling wat deur die howe na 1994 teweeggebring is het die
wetgewer ook toenemende erkenning aan ongetroude lewensmaats verleen. Soos in
die geval van die regsprekende ontwikkelings is die wetgewende ontwikkelings ook
slegs stuksgewys van aard. Die uiteinde van hierdie toedrag van sake is dat
lewensverhoudings in Suid-Afrika deur ""a patchwork of laws that did not [and still do
not] express a coherent set of family law rules'" gereguleer word.
Terwyl die wettiging van homoseksuele huwelike deur middel van die Civil Union Act 17
van 2006 'n gesonde ontwikkeling vanaf 'n menseregte oogpunt was, het hierdie
ontwikkeling probleme van sy eie veroorsaak: Eerstens impliseer die wettiging van
homoseksuele huwelike dat die "keuse argument" strictu sensu ook op homoseksuele
lewensmaats wat besluit om nie in die huwelik te tree nie, van toepassing is. Hierdie
argument kan veroorsaak dat die consortium omnis vitae wat die howe reeds in
Volgens Sachs R in Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian
& Gay Equality Project v Minister of Home Affairs 2006 (1) SA 524 (CC) op par [125].
817
beginsel tussen sodanige lewensmaats erken het, asook die stuksgewyse uitbreiding
van die huweliksreg na sodanige verhoudings wat voor 30 November 2006 (die datum
waarop die sluiting van homoseksuele huwelike moontlik geword het) plaasgevind het,
verval. Die regsposisie in hierdie verband is egter steeds onduidelik. Die wettiging van
homoseksuele huwelike is voorts deur wetgewing teweeggebring wat nie alleen van
homoseksuele pare vereis om ingevolge aparte wetgewing te trou nie, maar wat ook die
regsterrein oorkompliseer deur vir "civil unions" voorsiening te maak, wat die vorm van
óf 'n huwelik óf 'n "civil partnership" kan aanneem. Daar bestaan as sodanig geen
wetgewing om lewensverhoudings per se te reguleer nie.
In Januarie 2008 het 'n konsep Domestic Partnerships Bill die lig gesien. Deur hierdie
konsepwet as 'n grondbeeld te gebruik, poog hierdie studie om-deur middel van die
toepassing van 'n huishoudelike deelgenootskapsrubriek wat aanpassing van die
konsepwet en die belyning daarvan met relevante wetgewing vereis-die
inkonsekwensies en onreëlmatighede waarna vroeër verwys, is uit die weg te ruim deur
die daarstelling van doeltreffende huishoudelike deelgenootskapswetgewing. Ten einde
dit te bewerkstellig word 'n in-diepte ondersoek na regspraak, wetgewing en die
gemenereg onderneem met die oog op die vasstelling van grondliggende beginsels wat
nie net in die huishoudelike deelgenootskapswetgewing ingesluit behoort te word nie,
maar ook die belyning daarvan met toepaslike wetgewing sal bewerkstellig. In die lig
van die gewysigde konsepwet, sluit die studie af met 'n evaluering van die argument ten
gunste van die behoud van die Civil Union Act 17 van 2006. Daar word tot die slotsom
gekom dat die promulgering van die Domestic Partnerships Bill (soos deur die rubriek
aangepas), tesame met die herroeping van die Civil Union Wet 17 van 2006, 'n meer
konsekwente, samehangende en eenvoudige regsraamwerk waarbinne
lewensverhoudings gereguleer kan word, daar sal stel.
819
BIBLIOGRAPHY
BOOKS:
ALLEN, RE (ed)
1991. The concise Oxford dictionary of current English. 8th edition.
London: BCA.
ATKIN, B and BANDA, F (eds)
2008. The international survey of family law 2008 edition. Bristol: Jordan
Publishing Limited.
2009. The international survey of family law 2009 edition. Bristol: Jordan
Publishing Limited.
BEKKER, JC et al
2006. Introduction to legal pluralism in South Africa. 2nd edition. Durban:
LexisNexis Butterworths.
BOTHA,C
1999. Statutory interpretation: An introduction for students. 3rd edition.
Kenwyn: Juta & Co, Ltd.
BURCHELL, J and MILTON, J
2000. Principles of criminal law. 2nd edition. Lansdowne: Juta & Co, Ltd.
CHLOROS, A, RHEINSTEIN, A and GLENDON, MA (eds)
2007. International encyclopedia of comparative law. Volume IV: Persons
and Family. Leiden, Boston: Mohr, Siebeck, TObingen and
Martinus Nijhoff Publishers.
820
CHRISTlE, RH
2006. The law of contract in South Africa. 5th edition. Durban: LexisNexis
Butterworths.
COESTER-WAL TJEN, 0 and CO ESTER, M
2007. Formation of marriage in Chloros A, Rheinstein, A and Glendon,
MA (eds): Chapter 3: 3 - 123.
CORBETT, MM; HOFMEYR, G and KAHN, E
2001. The law of succession in South Africa. 2nd edition. Lansdowne:
Juta.
CRONJÉ, DSP
1990. Die Suid-Afrikaanse persone- en familiereg. 2nd edition. Durban:
Butterworths.
CRONJÉ, DSP and HEATON, J
1999. South African family law. Durban: Butterworths.
2004. South African family law. 2nd edition. Durban: LexisNexis
Butterworths.
2004(a). Casebook on South African family law. Durban: LexisNexis
Butterworths.
CURRIE, I and DE WAAL, J
2005. The bill of rights handbook. 5th edition. Lansdowne: Juta & Co,
Ltd.
CURRY-SUMNER, I
2008. The Netherlands - Party autonomy and responsibility in Atkin, B
and Banda, F (eds) 2008: 255 - 274.
821
CURRY-SUMNER, I and VONK, MJ
2009. It all depends on who you ask: Dutch parentage and adoption law
in four acts in Atkin, B and Banda, F (eds) 2009: 329 - 351.
DAVEL, CJ and SKELTON AM (eds)
2007. Commentary on the Children's Act. Original service 2007 (loose-
leaf). Cape Town: Juta & Co Ltd.
DEVENISH, GE
2005. The South African Constitution. Durban: LexisNexis Butterworths.
DE WAAL, MJ and SCHOEMAN-MALAN, MC
2008. Law of succession. 4th edition. Cape Town: Juta & Co Ltd.
DE WET, JC
1985. Strafreg.4th edition. Durban: Butterworth.
DE ZULU ETA, F
1953. The Institutes of Gaius. Part II. Commentary. Oxford: Oxford
University Press.
DU PLESSIS, LM
2002. Re-interpretation of statutes. Durban: LexisNexis Butterworths.
DU TOIT, F
2007. South African trust law: Principles and practice. 2nd edition.
Durban: LexisNexis Butterworths.
EISELEN, S and PIENAAR, G
1999. Unjustified enrichment: A casebook. z= edition Durban:
Butterworths.
822
ERASMUS HJ et al
1983. Lee and Honoré: Family, things and succession. 2nd edition.
Durban: Butterworths.
FRIEDMAN, LM
1985. A history of American law. 2nd edition. New York: Simon &
Schuster.
GAUM, F
2009. Is Calvyn altyd die sondaar? Rapport 26 July 2009.
GLENDON,MA
1977. State, law and family. Family law in transition in the United States
and Western Europe. Amsterdam: North-Holland Publishing
Company.
GLENDON, MA et al
1982. Comparative legal traditions in a nutshell. St Paul, Minnesota:
West Publishing Company.
GOOlAM, NMI
2002. "Islamic law" in Rautenbach, C and Gooiam, NMI (eds) 14 - 20 and
60 - 67.
GROENEWEGEN VAN DER MADE, S et al
1738. Inleydinge tot den Hollandfche rechts-geleertheyt, befchreven by
Hugo de Groot. Amsterdam: Jan Boom.
GRUTTER, Wand VAN ZYL, DJ
1982. The story of South Africa. 2nd edition. Cape Town: Human &
Rousseau.
823
HAHLO,HR
1975. The South African law of husband and wife. 4th edition. Cape
Town, Juta and Co, Ltd.
1985. The South African law of husband and wife. s" edition. Cape
Town, Juta and Co, Ltd.
HAHLO, HR and KAHN, E
1960. South Africa: The development of its laws and constitution. Cape
Town: Juta and Co, Ltd.
1968. The South African legal system and its background. Cape Town,
Juta and Co, Ltd.
HAHLO, HR and SINCLAIR, J
1980. The reform of the South African law of divorce. Cape Town, Juta
and Co, Ltd.
HAVES, CJH et al
1967. History of Western civilization. 2nd Edition. London: The Macmillan
Company.
HEATON, J
2007. Parental responsibilities and rights in Davel CJ and Skelton AM
(eds): Chapter 3.
2008 (a). The South African law of persons. 3rd edition. Durban: LexisNexis.
HIEMSTRA, VG and GONIN, HL
1992. Trilingual legal dictionary. Kenwyn: Juta and Company, Limited.
HONORÉ, AM and CAMERON, E
2002. Honoré's South African law of trusts. 5th edition. Lansdowne: Juta.
824
JANSEN, R-M
2006. "Family law" in Bekker, JC et al 2006 29 - 52.
JOUBERT, WA and FARRIS, JA (eds)
1998. The law of South Africa. First reissue. Volume 16 ("Marriage").
Durban: Butterworths.
KAHN,E
1975. "Jurisdiction and conflict of laws in the South African law of
husband and wife" in Hahlo, HR 1975531 - 674.
1991. Law, life and laughter. Legal anecdotes and portraits. Cape Town:
Juta and Co, Ltd.
1999. Law, life and laughter - encore. Cape Town: Juta and Co, Ltd.
KElUNG, AS
1975. Artikel 17 van die ewige edik van 1540-'n histories-
kritiesebeskouing daarvan. Unpublished LL.B dissertation,
University of the Orange Free State, Bloemfontein, South Africa.
KENNY, AJP (ed)
1994. The Oxford illustrated history of Western philosophy. Oxford
University Press.
KERR, AJ
2002. The principles of the law of contract. 6th Edition. Durban:
Butterworths.
KLOPPER,HB
2000. Law of third party compensation. Durban: Butterworths.
825
LEE, RW
1931. An introduction to Roman-Dutch law. 3rd edition. Oxford University
Press.
1954. "Putative marriage" in Price, TW and Beinart, B (eds) 36 - 48.
MAINE, HS
1901. Ancient law. Its connection with the early history of society and its
relation to modern ideas. 17th impression. London: John Murray.
MAUTNER, T (ed)
2000. The Penguin dictionary of philosophy. London: Penguin Books.
MERIN, Y
2002. Equality for same-sex couples. The legal recognition of gay
partnerships in Europe and the United States. Chicago: The
University of Chicago Press.
NEETHLING, J et al
2005. Neethling's law of personality. 2nd Edition. Durban: LexisNexis
Butterworths.
2006. Law of delict. 5th Edition. Durban: LexisNexis Butterworths.
OLIVIER, NJJ et al
1995. Indigenous law. Durban: Butterworths.
OLIVIER, PJJ (translated by NATHAN, C)
1974. The South African law of persons and family law. Durban:
Butterworths.
826
POLLOCK, Sir F and MAITLAND, FW
1898 (a). The history of English law before the time of Edward I. Volume I.
2nd Edition. Cambridge: Cambridge University Press.
1898 (b). The history of English law before the time of Edward I. Volume II.
2nd Edition. Cambridge: Cambridge University Press.
PRICE, TW and BEINART, B (eds)
1954. Butterworths South African Law Review. Durban: Butterworth &
Co. (Africa) Ltd.
QUINTON, A
1993. "Political philosophy" in Kenny, AJP (ed) 275 - 362.
RAUTENBACH, C and GOOLAM, NMI (eds)
2002. Introduction to legal pluralism in South Africa (Part II Religious legal
systems). Durban: Butterworths.
RHEINSTEIN, M
2007. The family and the law in Chloros A, Rheinstein A and Glendon MA
(eds): Chapter 1: 3 - 19.
ROBINSON, JA et al
2009. Introduction to South African family law. 4th edition.
Potchefstroom: Printing Things.
SACHS, A
1973. Justice in South Africa. Berkeley: University of California Press.
SANDARS, TC
1905. The Institutes of Justinian. 12th impression. New York: Longmans,
Green, and Co.
827
SCHWELLNUS, T
1994. The legal implications of cohabitation in South Africa - a
comparative approach. Unpublished LLD thesis Rijksuniversiteit
Leiden.
SHARROCK, R et al
2000. Hockly's insolvency law. 6th edition. Lansdowne: Juta & Co, ltd.
SINCLAIR, JD
2008. South Africa - A new definition of marriage: Gay and lesbian
couples may marry in Atkin, B and Banda, F (eds) 397 - 409.
SINCLAIR, JD and HEATON J
1996. The law of marriage. Volume 1. Kenwyn: Juta and Co, ltd.
SINCLAIR, JM (ed)
2001. Collins Concise Dictionary. 5th Edition. Glasgow. HarperCollins
Publishers.
SLEIGH,O
2004. Die buiteposte: VOC-buiteposte onder Kaapse bestuur 1652 -
1795. Pretoria: Protea Boekhuis.
SMITH, BS
2002. A general enrichment action for South Africa? Unpublished LL.B
dissertation, University of the Free State, Bloemfontein, South
Africa.
2006. The authorization of trustees in the South African law of trusts.
Unpublished LL.M dissertation, University of the Free State,
Bloemfontein, South Africa.
828
SMITH, W (ed)
1855. Tacitus. Germania, Agricola, and the first book of the Annals.
London: Walton and Maberly.
SOHM, R (translated by LEDLlE, JC)
1907. The Institutes. A textbook of the history and system of Roman
private law. 3rd edition. London: Oxford.
SONNEKUS, JC
2000. The law of estoppel in South Africa. 2nd Edition. Durban:
Butterworths.
SOUTH AFRICAN LAW COMMISSION, THE (also "SALC")
1982. Report pertaining to the matrimonial property law with special
reference to the Matrimonial Affairs Act, 1953, the status of the
married woman, and the law of succession in so far as it affects the
spouses. Pretoria: Government printers.
SOUTH AFRICAN lAW COMMISSION, THE (also "SALC")
1983. Working paper 2: Law of succession: Intestate succession.
Pretoria: Government printers.
SPILlER, P
1986. A manual of Roman law. Durban: Butterworths.
VAN DER KEESSEl, DG (translated by LORENZ, CA)
1855. Select theses on the laws of Holland and Zeeland. London:
Edward Stanford, 6 Charing Cross.
VAN DER MERWE, S et al
2007. Contract: General principles. 3rd edition. Lansdowne: Juta.
829
VAN DER VYVER, JD and JOUBERT, DJ
1991. Persone- en familiereg. 3rd edition. Cape Town: Juta and Co, Ltd.
VAN HEERDEN, B et al
1998. "Marriage" in Joubert, WA and Farris, JA (eds): Vo116.
VAN WARMELO, P
1954. "Die verlowing" in Price, TW and Beinart, B (eds) 73 - 123.
1957. 'n Inleiding tot die studie van die Romeinse reg. Cape Town;
Amsterdam: AA Balkema.
VAN ZYL, DJ
1983. History and principles of Roman private law. Durban: Butterworths.
1983 (a). Geskiedenis van die Romeins-Hollandse Reg. Durban:
Butterworths.
VAN ZYL, L
2005. Handbook of the South African law of maintenance. 2nd edition.
Durban: LexisNexis Butterworths.
VERSCHRAEGEN,B
2007. Divorce in Chloros A, Rheinstein, A and Glendon, MA (eds):
Chapter 5: 3 - 157.
VISAGIE, GG
1969. Regspleging en reg aan die Kaap van 1652 tot 1806. Cape Town:
Juta and Co, Ltd.
VISSER, PJ and POTGIETER, JM
1998. Introduction to family law. 2nd edition. Kenwyn: Juta and Co. Ltd.
830
VOET, J (translated by JONES, H)
1902. Commentarius ad pandectas. Book XXIV. Cape Town: J.C. Juta &
Co.
WESSELS, Sir JW
1908. History of the Roman-Dutch law. Grahamstown: African Book
Company, Limited.
WESTERMARCK, E
1903. The history of human marriage. London: MacMillan and Co., Ltd.
WITTE, J (Jr)
1997. From sacrament to contract. Marriage, religion and law in the
Western tradition. Louisville, Kentucky: Westminster John Knox
Press.
ARTICLES:
BAKKER, P
2009. Die Civil Union Act, Draft Domestic Partnership Bill en moontlike
deregulering van die huwelik. Journal for Juridical Science 1 - 20.
BALA,N
2000. Alternatives for extending spousal status in Canada. Canadian
Journal of Family Law Vol 17 169 - 199.
BEKINK, B
2008. The intrinsic uneasy triangle between constitutionalism, secularism
and the right to freedom of religion - a South African perspective.
Tydskrif vir die Suid-Afrikaanse Reg 481 - 498.
831
BERMAN, HJ
1983. Religious foundations of law in the West: An historical perspective.
Journal of law and religion Vol 1(1) 3 - 43.
1984. Law and belief in three revolutions. Valparaiso University Law
Review Vol 18(3) 569 - 629.
BILCHITZ, D and JUDGE, M
2007. For whom does the bell toll? The challenges and possibilities of the
Civil Union Act for family law in South Africa. South African Journal
on Human Rights 466 - 499.
BLAKESlEY,Cl
1985. The putative marriage doctrine. Tulane Law Review Vol 60 1 - 60.
BONTHUYS,E
2001. Labours of love: Child custody and the division of matrimonial
property at divorce. Tydskrif vir Hedendaagse Romeins-Hollandse
Reg 192 - 217.
2007. Race and gender in the Civil Union Act. South African Journal on
Human Rights 526 - 542.
2008. Irrational accommodation: Conscience, religion and same-sex
marriage in South Africa. South African Law Journa/473 - 483.
BONTHUYS, E and PIETERSE, M
2000. Still unclear: the validity of certain customary marriages in terms of
the Recognition of Customary Marriages Act. Tydskrif vir
Hedendaagse Romeins-Hollandse Reg 616 - 625.
BOTHA, CG
1914. Early Cape matrimonial law. The South African Law Journal 250 -
260.
832
1921. The early inferior courts of justice at the Cape. The South African
Law Journa/406 - 423.
BRAND, FDJ
2009. The role of good faith, equity and fairness in the South African law
of contract: The influence of the common law and the Constitution.
The South African Law Journal71 - 90.
BROWN, R
2004. Putative spouse was the "surviving spouse"? American Journal of
Family Law Vol3 182.
2006. Entering a bigamous marriage did not automatically deprive a
spouse of community property rights. American Journal of Family
Law Vol 3 209, 210.
BRYSON, WH
1984. Legal growth through evolution. Comment on the Puritan
Revolution and English Law. Valparaiso University Law Review
Vol 18(3) 643 - 649.
CHURCH, J
1979. Consortium omnis vitae. Tydskrif vir Hedendaagse Romeins-
Hollandse Reg 376 - 388.
2003. Same-sex unions - different voices. Fundamina 44 - 61.
ClAASEN, JY
1987. Veelwywery as deliktuele aksiegrond. Tydskrif vir Regswetenskap
VoI12(1) 55 - 62.
833
CLARK,B
1993. Surrogate motherhood: Comment on the South African Law
Commission's Report on surrogate motherhood (Project 65). The
South African Law Journal 769 - 778.
. CORBETT, MM
1987. Aspects of the role of policy in the evolution of our common law.
The South African Law Journal 52 - 69.
C.T.C.
1886 (a). Amendment of the marriage law. The Cape Law Journa/64 - 68.
1886 (b). Amendment of the marriage law. The Cape Law Journal 121 -
124.
DE BRUIN, JH AND SNYMAN, E
1998. Universele Vennootskap: Oplossing vir Ryland v Edros? SA
Mercantile Law Journal 368 - 372.
DE VOS, P
2004. Same-sex sexual desire and the re-imagining of the South African
family. South African Journal on Human Rights 179 - 206.
2007 (a). The 'inevitability' of same-sex marriage in South Africa's post-
Apartheid state. South African Journal on Human Rights 432-
465.
DE VOS, P and BARNARD, J
2007. Same-sex marriage, civil unions and domestic partnerships in
South Africa: Critical reflections on an ongoing saga. South African
Law Journal 795 - 826.
834
DE WAAL, MJ
1997. The social and ecomomic foundations of the law of succession.
Stellenbosch Law Review 162 - 175.
DE WET, JC
1957. Coen, die Engelse en die politieke ordonnansie. Tydskrif vir
Hedendaagse Romeins-Hollandse Reg 237 - 244.
1958 (a). "Nederlandse" reg in Suid-Afrika tot 1806. Tydskrif vir
Hedendaagse Romeins-Hollandse Reg 162 - 175.
1958 (b). Die resepsie van die Romeins-Hollandse reg in Suid-Afrika.
Tydskrif vir Hedendaagse Romeins-Hollandse Reg 84 - 97.
1958 (c). Die Romeins-Hollandse reg in Suid-Afrika na 1806. Tydskrif vir
Hedendaagse Romeins-Hollandse Reg 239 - 248.
DU PLESSIS, W
1990. Regshistoriese grondslae van die Wet op Intestate Erfopvolging 81
van 1987. De Jure 231 - 247.
DU rorr, F
2001. 'n Verdere perspektief op die sosiale en ekonomiese grondslae van
die erfreg. Tydskrif vir Regswetenskap 1 - 18.
EISELEN, GTS
1992. Herlewing van die algemene verrykingsaksie. Blesbok
Eiendomsagentskap v Cantamessa 1991 2 SA 712 (T). Tydskrif vir
Hedendaagse Romeins-Hollandse Reg 124 - 128.
ESKRIDGE, WN jr
1993. A history of same-sex marriage. Virginia Law Review 1419 -
1513.
835
FINE, JD
1983. The rights of putative spouses: Choice of law issues and
comparative insights. International and Comparative Law Quarterly
Vol 32 708 - 736.
FRIEDMAN, BK
1993. An intent-based approach to the accpetance of benefits doctrine in
the federal courts. Michigan Law Review Vol 92 742 - 773.
GOLDBLATT, B
2003. Regulating domestic partnerships - a necessary step in the
development of South African family law. South African Law
Journa/610 - 629.
HAHLO,HR
1967. Law of persons. Annual Survey of South African Law 55 - 71.
1972. The law of concubinage. The South African Law Journal 321 -
332.
HEATON, J
2008 (b). The Marriage Act 25 of 1961, the Divorce Act 70 of 1979, and the
dissolution of a Hindu marriage [Discussion of Singh v Ramparsad
20073 SA 445 (D)]. Stellenbosch Law Review 452 - 465.
HEFER, JJF
2004. Billikheid in die kontraktereg. Journal for Juridical Science 1 - 14.
HENDERSON, JB
1941. The civil effects of a putative marriage. Loyola Law Review Vol 1
54 - 68.
836
HENNING, JJ
1997. The uncovering of a key source of the law of partnership and of the
efficacy of a partnership of all future and present property. Tydskrif
vir Regswetenskap 52 - 68.
HEXHAM, I
1980. Dutch Calvinism and the development of Afrikaner nationalism.
African Affairs 195 - 208.
HUTCHINGS, S and DELPORT, E
1992. Cohabitation: A responsible approach. De Rebus 121 - 125.
JANSEN, R-M
2003. Multiple marriages, burial rights and the role of lobolo at the
dissolution of the marriage. Journal for Juridical Science 120 -
132.
KlARIE,KE
1998. Legal culture and transformative constitutionalism. South African
Journal on Human Rights 146 - 188.
KOTZÉ, Sir JG
1909. History of the Roman-Dutch law. A review. The South African Law
Journal 387 - 409.
lABUSCHAGNE, E
1985. Die universele vennootskap in die de facto
samewoningsverhouding: Ally v Dinath. Tydskrif vir die Suid-
Afrikaanse Reg 219 - 222.
1989. Die lotgevalle van die konkubinaatsverhouding in die Romeinse reg
tot by Justinianus. Tydskrif vir die Suid-Afrikaanse Reg 649 - 662.
837
LABUSCHAGNE, JMT
1989. Nietige en vernietigbare huwelike: Opmerkinge oor die deregulering
van die huwelik. Tydskrif vir die Suid-Afrikaanse Reg 370 - 389.
1990. Teoretiese verklaring van die bloedskande verbod. Tydskrif vir die
Suid-Afrikaanse Reg 415 - 425.
LANGA, P
2006. Transformative constitutionalism. Stellenbosch Law Review 351 -
360.
LINO, C
2005. Domestic partnerships and marital status discrimination. Acta
Juridica 108 - 130.
LOUW, A
2007. The acquisition of shared parental responsibility by same-sex civil
union partners. Obiter 324 - 330.
MOULD, K
2008. Tacit responsibilities assigned to the drafter of a credit agreement
by the National Credit Act 34 of 2005 with particular emphasis on
contractual consensus: A critical analysis. Journal for Juridical
Science 109 - 127.
aOMEN, B
2000. Traditional woman-to-woman marriages, and the Recognition of
Customary Marriages Act. Tydskrif vir Hedendaagse Romeins-
Hollandse Reg 274 - 282.
838
OOSTHUIZEN, AJ
1989. The Intestate Succession Act 81 of 1987. Tydskrif vir
Hedendaagse Romeins-Hollandse Reg 94 - 98.
RAATH, AWG
2009. Benevolence and conjugal union: Luther's views on the moral
context of marriage, natural right and the moral limits of marital
union. Journal for Christian Scholarship 1 - 27.
REID, JR Jr and WITTE, J, Jr
1999. In the steps of Gratian: Writing the history of canon law in the
1990's. Emory Law Journa/647 - 688.
RITNER, SR
1967. The Dutch Reformed Church and Apartheid. Journal of
Contemporary History 2 - 37.
ROBINSON, JA
1991. Gedagtes rondom die huwelikscansartium en egskeiding. Tydskrif
vir Hedendaagse Romeins-Hollandse Reg 508 - 512.
2005. The evolution of the concept of marriage in South Africa: The
influence of the Bill of Rights in 1994. Obiter 488 - 505.
ROBSON,R
2007. Sexual democracy. South African Journal on Human Rights 409-
431.
ROOS, J de V
1897. The Plakaat Books of the Cape. Cape Law Journa/1 - 23.
839
1906. The statute law at the Cape in pre-British days, and some judicial
decisions in relation thereto. The South African Law Journal 242 -
254.
SCHÁFER, l
2006. Marriage and marriage-like relationships: Constructing a new
hierarchy of life partnerships. The South African Law Journal 626 -
647.
SCHOLTENS, JE
1959. Delictual actions between spouses in Roman-Dutch law. The
South African Law Journal 205 - 215.
SCHRAMA, WM
2008. The Dutch approach to informal lifestyles: Family function over
family form? International Journal of Law, Policy and the Family
311-332.
SCHWELLNUS, T
1995. The legal position of cohabitees in the South African law. Obiter
133 -157.
SINGH, D
1996. Cohabitation relationships revisited: Is it not time for acceptance?
The Comparative International Law Journal of Southern Africa 317
- 328.
SMITH, BS and GROBLER, NJ
2005. Gay rights (and obligations!): Consequences and implications of
Fourie v Minister of Home Affairs. Tydskrif vir die Suid-Afrikaanse
Reg 745 - 766.
840
SMITH, BS and ROBINSON, JA
2008 (a). The South African Civil Union Act 2006: Progressive legislation with
regressive implications? International Journal of Law, Policy and
the Family 356 - 392.
2008 (b). The South African Civil Union Act 17 of 2006: A good example of
the dangers of rushing the legislative process. Brigham Young
University Journal of Public Law 419 - 439.
SONNEKUS, JC
1990. Verlengde onderhoudsaanspraak van die langslewende gade - 'n
aanvaarbare ondergrawing van beskikkings-bevoegdheid?
Tydskrif vir die Suid-Afrikaanse Reg 491 - 513.
2009. Huweliksluiting, die ouderdom en ander beperkings. Tydskrif vir
Hedendaagse Romeins-Hollandse Reg 136 - 148.
STOCK, JlW
1915. The new Statutes of India at the Cape. The South African Law
Journal 328 - 337.
SWANEPOEL, Hl
1958. Oor die resepsie van die Romeins-Hollandse reg in Suid-Afrika.
Acta Juridica 7 - 26.
THOMAS, PH
1984. Konkubinaat. Tydskrif vir Hedendaagse Romeins-Hollandse Reg
455 - 459.
2005. The South African common law into the twenty-first century.
Tydskrif vir die Suid-Afrikaanse Reg 292 - 298.
VAN lOER BURGHT, G
2000. Registered partnership in the Netherlands. De Jure 76 - 94.
841
VAN DER MERWE, J
1995. Die reg aan die Kaap tydens die inwerkingtreding van die
Regsoktrooie. Tydskrif vir Hedendaagse Romeins-Hollandse Reg
234 - 256.
VAN NIEKERK, JP
2008. Co-habiting same-sex partners. Reinterpreting old concepts in
insurance contracts to fit our new legal order. Juta's Business Law.
2-3.
VAN SCHALKWYK, LN
1990. Onderhoudsooreenkomste tussen eggenotes by egskeiding. De
Jure 67 - 80.
1993. Honey v Honey 19923 SA 609 (W). De Jure. 215 - 221.
2007(a). Kommentaar op die "Civil Union Act" 17 van 2006. De Jure 166 -
173.
2007(b ). Botha v Botha 2005 (5) SA 228 (W). De Jure 425 - 429.
VAN WARMELO, P
1969. Botes v. Afrikaanse Lewensversekeringsmaatskappy, Bpk. 1967 (3)
SA 19 (W). Verlowing - Skenking - Beding t.b.v. 'n derde. Tydskrif
vir Hedendaagse Romeins-Hollandse Reg 185 - 187.
VAN WYK, A
1985 (a). Gemeenskap van goedere en aanwasdeling volgens die Wet op
Huweliksgoedere, 1984 (DeeI1). De Rebus 20 - 26.
1985 (b). Community of property and accrual sharing in terms of the
Matrimonial Property Act, 1984 (Part 2). De Rebus 59 - 61 and 99.
842
VAN ZYL, CH
1907. The Batavian and the Cape plakaten. An historical narrative. The
South African Law Journa/132 - 147.
1908. The Batavian and the Cape plakaten. An historical narrative
(continued). The South African Law Journa/4 - 25.
VENTREllA, JJ Esq
2009. Square circles?!! Restoring rationality to the same-sex 'marriage'
debate. Journal for Christian Scholarship 81 - 129.
VISSER, OP
2002. The general enrichment action cometh. The South African Law
Journal260 - 269.
VONK,M
2008. The role of formalised and non-formalised intentions in legal parent-
child relationships in Dutch law. Utrecht Law Review 117 - 134.
WAALDIJK, K
2000. Civil developments: Patterns of reform in the legal position of same-
sex partners in Europe. Canadian Journal of Family Law 62 - 88.
2004. Others may follow: The introduction of marriage, quasi-marriage,
and semi-marriage for same-sex couples in European countries.
New England Law Review 569 - 589.
WAllACE, MH
2003. The pitfalls of a putative marriage and the call for a putative
divorce. Louisiana Law Review Vol 64 71 - 118.
843
WATT, JR
2006. Sex, marriage, and family in John Calvin's Geneva. Volume 1:
Courtship, engagement, and marriage. Edited by John Witte, Jr
and Robert M. Kingdon (Book review). Catholic Historical Review
326,327.
WHITTLE, B
2008. LSSA comments on amendments proposed to Intestate Succession
Act. De Rebus (November) p 19.
WILDENBOER, H
2000. The status of same-sex unions in South Africa. Codicil/us 54 - 62.
WOOD-BODLEY, MC
2008(a). Intestate succession and gay and lesbian couples. The South
African Law Journa/46 - 62.
2008(b). Establishing the existence of a same-sex life partnership for the
purposes of intestate succession. The South African Law Journal
259 - 273.
2008(c). Same-sex couple discrimination in employment benefits: Where to
now? The South African Law Journal 483 - 488.
INTERNET SOURCES:
BOSMAN, FJ and VAN ZYL GJ
1997. "Children, young persons and their parents" in Robinson et a/1997.
BRIANS, P
1998. The enlightenment. Accessed from:
http://www.wsu.edu/-brians/hum303/enlightenment.html
844
CHRISTlE, J
2008. Conveyancing practice guide. Accessed from:
http://bwpubs.uovs.ac.za/nxUgateway.dll?f=templates$fn=default.ht
m$vid=mylnb:1 0.1048/enu
CLARK, B (ed)
2008. Family law service. Accessed from:
http://bwpubs.uovs.ac.za/nxUgateway.dll?f=templates$fn=default.ht
m$vid=mylnb:1 0.1048/enu
DE WAAL, MJ
2006. "The law of succession and the bill of rights" in Bill of rights
compendium. Accessed from:
http://bwpubs.uovs.ac.za/nxUgateway.dll?f=templates$fn=default.ht
m$vid=mylnb: 10.1048/enu
HEATON, J
2005. "Family law and the bill of rights" in Bill of rights compendium.
Accessed from:
http://bwpubs.uovs.ac.za/nxtlgateway.dll?f=templates$fn=default.ht
m$vid=mylnb: 10.1048/enu
JOUBERT, DJ
2008. "Law of marriage and civil unions" (Division A) in Clark, B (ed).
LAW COMMISSION (cited as "EWLC" as, although this is not its official name, the
Commission deals with law reform in England and Wales)
2006. Cohabitation: The financial consequences of relationship
breakdown. (Consultation Paper No 179). Accessed from:
http://www.lawcom.gov.uk/docs/cp179.pdf
845
2007. Cohabitation: The financial consequences of relationship
breakdown. Accessed from:
http://www.lawcom.gov.uk/docs/lc307.pdf
LUPTON, Ml (Updated by CLARK, B)
2008. "Medica-legal aspects" (Division J) in Clark, B (ed).
MAXWELL, NG
2000. Opening up civil marriage to same-gender couples: A Netherlands-
United States comparison. Electronic Journal of Comparative Law
(VoI4.3). Accessed from http://www.ejcl.org/43/abs43-1.html.
MESKIN, PM et al
2008. Insolvency law. Accessed from:
http://bwpubs.uovs.ac.za/nxUgateway.dll?f=templates$fn=default.ht
m$vid=mylnb: 10.1048/enu
NETHERLANDS MINISTRY OF JUSTICE
2006. Fact sheet: "Same-sex marriages". Accessed from:
http://english.justitie.nl/currenttopics/factsheets/
(obtained on 12 September 2007).
PACE, RP and VAN DER WESTHUIZEN, WM
2008. Wills and trusts. Accessed from:
http://bwpubs.uovs.ac.za/nxUgateway.dll?f=templates$fn=default.ht
m$vid=mylnb: 10.1048/enu
RAYE, VW and PIERSON, PE (esq)
2009. "Non-marital relationships and termination of invalid marriage" in
California Civil Practice Family Law Litigation (Database update
2009). Accessed from:
846
http://international.westlaw.com/resultldefault.wl?srch=TRUE&rltdb
=CLlD DB248430551125&effdate=1 %2f1%2fO001+12%3aOO%3aO
O+AM&db=CCP-
FAM&sv=Full&service=Search&eq=search&fmqv=s&method=TNC
&action=Search&query=PUT ATIVE+SPOUSE&mt=Westlawlnterna
tional&fn= top&cfid=1 &vr=2.0&origin=Search&rlt=CLlD QRYRLT7
078540561125&rp=%2fsearch%2fdefault. wl&ifm=NotSet&sp=intufs
-000&rs=WLlN9.04 (obtained on 2 May 2009).
ROBINSON, JA et al
1997. Law of children and young persons. Accessed from:
http://bwpubs.uovs.ac.za/nxtlgateway.dll?f=templates$fn=default.ht
m$vid=mylnb: 10.1048/enu
SARNO,GG
2010 Rights in decedent's estate as between lawful and putative spouses
(81 A.L.R.3d 6). Accessed from:
http://international.westlaw.com/find/default.wl?carerlt=CLID CARE
97635185622 CaRE 0 N 1&tc=1&sv=Full&tf=779&ncare=1&seria
Inum=1977017899&care=Y&mt=314&fn= top&vr=2.0&ifm=NotSet
&sp=intufs-OOO&rpcat=ALR&rs=W LIN10.01
SCHAFER,lI
2008(a). "Young persons" (Division E) in Clark, B (ed).
2008(b). "Same-sex life partnerships" (Division R) in Clark B (ed).
SCHWEllNUS, T
2008. "Cohabitation" (Division N) in Clark B (ed).
847
SHAPIRO, FR and EPSTEIN, J
2006. The Yale book of quotations. Yale University Press. Accessed
from:
http://books.google.co.za/bkshp?hl=en&tab=wp (obtained on 19
June 2009).
SONNEKUS, JC (Updated by CLARK, B)
2008. "Matrimonial property" (Division B) in Clark B (ed).
SOUTH AFRICAN lAW REFORM COMMISSION, THE (also "SAlRC")
2003. Discussion paper 104 (Project 118): Domestic partnerships.
Accessed from:
http://www.doj.gov.za/salrc/dpapers.htm
2006. Project 118: Report on domestic partnerships. Accessed from:
http://www.doj.gov.za/salrc/reports/r prj118 2006march.pdf
2009. Project 25: Statutory law revision (legislation administered by the
Department of Labour). (Consultation paper, not yet electronically
available).
SWEDISH MINISTRY OF JUSTICE
2003. Fact sheet: Cohabitees and their joint home. Accessed from:
http://www.regeringen.se/sb/d/2768/a/16218 (obtained on 9 July
2009).
VAN ZYL, L
2008. "Maintenance" in Clark, B (ed).
WAALDIJK, K
2005. Major legal consequences of marriage, cohabitation and registered
partnership for different-sex and same-sex partners in the
Netherlands. Accessed from:
848
http://www-same-
sex.ined.fr/pdf/DocTrav125/05Doc125TheNetherlands.pdf
(obtained on 11 September 2007).
WITTE, J, Jr
2004. Law and legal theory in the western tradition. Accessed from:
http://papers.ssrn.com/abstract=755086 (obtained on 12 April
2008).
849
KEY TERMS
1. Domestic partnership
2. Life partnership
3. Universal partnership
4. Registered domestic partnership
5. Unregistered domestic partnership
6. Domestic Partnerships Bill, 2008
7. Cohabitation
8. Civil union
9. Civil partnership
10. Civil marriage
11. Customary marriage
12. Purely religious marriage
13. Rubric
850
14. Life partnership agreement
15. Reciprocal duty of support
16. Contextualised choice model
17. Choice argument
18. Models of marriage
19. Consortium omnis vitae
20. Putative marriage
21. Common-law marriage
851
CASE LAW CONSULTED
SOUTH AFRICA:
Abbot v Bergman 1922 AD 53
Administrators, Estate Richards v Nicho/1996 (4) SA 253 (C)
Advtech Resourcing (Pty) Ltd t/a Communicate Personnel v Kuhn 2008 (2) SA375 (C)
Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA)
Allen v Allen 1951 (3) SA 320 (A)
Ally v Dinath 1984 (2) SA451 (T)
Amalgamated Banks of SA Bpk v De Goede 1997 (4) SA66 (SCA)
Amalgamated Bank of South Africa Bpk v Lydenburg Passasiersdienste BKen Andere 1995 (3) SA314 (T)
Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999
(4) SA 1319 (SCA)
Andersson, Exparte 1964 (2) SA75 (C)
Annabhay v Ramlall and Others 1960 (3) SA802 (N)
Apostoliese Geloofsending van Suid-Afrika (Maitland Gemeente) v Capes 1978 (4) SA48 (C)
Arendse v Roode 1989 (1) SA 763 (C)
Baart v Malan 1990 (2) SA862 (E)
Bam v Bhabha 1947 (4) SA 798 (A)
Barkhuizen v Napier 2007 (5) SA323 (CC)
Barlow v Barlow 1920 OPD 73
Beaumont v Beaumont 1987 (1) SA967 (A)
Bennett NO v Le Roux 1984 (2) SA 134 (ZH)
Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SCA)
Bezuidenhout NO v ABSA Versekeringsmaatskappy Bpk (unreported judgment of the Transvaal Provincial
Division [now the North Gauteng High Court, Pretoria in consequence of the Renaming of High
Courts Act 30 of 2008], case no 40688/2008 delivered on 26 February 2008)
852
Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus
Curiae),' Shibi v Sithole and Others; South African Human Rights Commission and Another v
President of the Republic of South Africa and Another 2005 (1) SA 580 (CC)
Biccard v Biccard and Fryer (1891-1892) 9 SC 473
Biloden Properties (Pty) Ltd v Wilson 1946 NPD 736
Bopape and Another v Moloto 2000 (1) SA 383 (T)
Botes, NO vAfrikaanse Lewensversekeringsmaatskappy Bpk en 'n Ander 1967 (3) SA 19 (W)
Botha v Botha 2005 (5) SA 228 (W)
Botha v Deetlefs and Another 2008 (3) SA 419 (N)
Botha (now Griessel) v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A)
Bowman, De Wet and Du Plessis NNO and Others v Fidelity Bank Ltd 1997 (2) SA 35 (A)
Brisley v Drotsky 2002 (4) SA 1 (SCA)
Brooks v Minister of Safety and Security 2008 (2) SA 397 (C)
Buttner v Buttner 2006 (3) SA 23 (SCA)
Cv C 1958 (3) SA 547 (SR)
Campher v Campher 1978 (3) SA 797 (0)
Cape Dairy and General Livestock Auctioneers v Sim 1924 AD 167
Carter v Carter 1953 (1) SA 202 (A)
Casserly v Stubbs 1916 TPD 310
Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the RSA, 1996, Ex
parte 1996 (4) SA 744 (CC)
Charles Velkes Mail Order 1973 (Pty) Ltd v Commissioner for Inland Revenue 1987 (3) SA 345 (A)
Chaplin NO v Gregory (or Wyld) 1950 (3) SA 555 (C)
Chinamora v Angwa Furnishers (Pvt) Ltd and Another (Attorney-General Intervening) 1998 (2) SA 432
(ZS)
Cohen v Cohen 2003 (3) SA 337 (SCA)
Commercial Union Assurance Company of South Africa Ltd v Clarke 1972 (3) SA 508 (A)
Cunningham v Cunningham 1952 (1) SA 167 (C)
Daniels v Campbell NO and Others 2005 (5) SA 531 (CC)
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home
Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936
(CC)
853
De Beer v Keyser and Others 2002 (1) SA 827 (SCA)
De Vos NNO en 'n Ander v Potgietersrusse Tabakkorporasie Bpk en 'n Ander 1976 (3) SA 488 (A)
Dhanabakium v Subramanian and Another 1943 AD 160
Dineen and Another, Exparte 1955 (4) SA 49 (0)
Dow, Exparte 1987 (3) SA 829 (D)
Drummond v Drummond 1979 (1) SA 161 (A)
Du Plessis v Rood Accident Fund 2004 (1) SA 359 (SCA)
Du Preez v Cohen Bros 1904 TS157
Du Toit and Another v Minister of Welfare and Population Development and Others 2001 (12) BCLR1225
(T)
Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay
Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC)
Eastwood v Shepstone 1902 TS294
Edelstein v Edelstein 1952 (3) SA 1 (A)
Edwards v Fleming 1909 TH 232
Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA)
Estate Visser, In re 1948 (3) SA 1129 (C)
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)
Excell v Douglas 1924 CPD 472
Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2000 (2) SA 54 (C)
Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C)
Feldman v Feldman 1949 (3) SA 493 (A)
Fink v Fink 1945 WLD 226
First National Bank of South African Ltd v Perry NO and Others 2001 (3) SA 960 (SCA)
Ford v Allan 1925 TPD 5
Fourie And Another v Minister of Home Affairs and Another (The Lesbian and Gay Equality Project
intervening as amicus curiae) unreported judgment of the High Court in Pretoria; Case No
17280/02 delivered on 18 October 2002
Fourie and Another v Minister of Home Affairs and Another 2003 (5) SA 301 (CC)
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA)
Gero vLinder 1995 (2) SA 132 (0)
Gildenhuys v Transvaal Hindu Educational Council 1938 WLD 260
854
Gory v Kolver NO and Others 2006 (5) SA 145 (T)
Gory v Kolver NO 2007 (4) SA97 (CC)
Govender and Another v Maitin and Another 2008 (6) SA 64 (D)
Govender v Ragavayah NO and Others 2009 (3) SA 178 (D)
Grobbelaar v Havenga 1964 (3) SA522 (N)
Harksen v Lane NO and Others 1998 (1) SA 300 (CC)
Harvey v Harvey 1923 NPD 281
Hassam v Jacobs NO [2008] 4 All SA 350 (C)
Hassam v Jacobs NO (Case no. CCT83/08: unreported judgment of the Constitutional Court delivered on
15 July 2009)
Hees NO v Southern Life Association Ltd 2000 (1) SA 943 (W)
Hlathi v University of Fort Hare Retirement Fund and Others PFA/EC/9015/2006 (18 March 2009)
Hodges v Coubrough NO 1991 (3) SA 58 (D)
Holland v Holland 1973 (1) SA897 (T)
Honey v Honey 1992 (3) SA609 (W)
Inkley and inkley, Exparte 1995 (3) SA 528 (C)
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re
Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA545 (CC)
Isaacs visaacs 1949 (1) SA952 (e)
Ismael v Smith 2000 (2) SA526 (C)
Ismail v Ismail 1983 (1) SA 1006 (A)
Ismail v Ismail and Others 2007 (4) SA 557 (E)
J and Another v Director General, Department of Home Affairs, and Others 2003 (5) SA 605 (D)
J and Another v Director General, Department of Home Affairs, and Others 2003 (5) SA 621 (CC)
Jerrard v Jerrard 1992 (1) SA426 (T)
Jodaiken v Jodaiken 1978 (1) SA 784 (W)
Jooste v Botha 2000 (2) SA 199 (T)
Joshua v Joshua 1961 (1) SA455 (GW)
Juglal v Shoprite Checkers (Pty) Ltd 2004 (5) SA 248 (SCA)
Kader v Kader 1972 (3) SA 203 (RA)
Kambuie v The Master and Others 2007 (3) SA403 (E)
Kannemeyer v Gloriosa 1953 (1) SA 580 (W)
855
Katz v Katz 1989 (3) SA 1 (A)
Khan v Khan 2005 (2) SA 272 (T)
Kloosman et Uxor, Exparte 1947 (1) SA 342 (T)
Kommissaris van Binnelandse Inkomste en 'n Ander v Willers en Andere 1994 (3) SA 283 (A)
Kritzinger v Kritzinger 1989 (1) SA 67 (A)
L (Also known as A), Exparte 1947 (3) SA 50 (C)
Land and Agricultural Bank of South Africa v Parker and Others 2005 (2) SA 77 (SCA)
Langemaat v Minister of Safety and Security and Others 1998 (3) SA 312 (T)
Laws v Rutherford 1924 AD 261
Linvestment CC v Hammersley and Another 2008 (3) SA 283 (SCA)
Loedolff & Smuts v Robertson and Others (1861-1863) 4 Searle 128
Lloyd v Mitchell [2004) 2 All SA 542 (e)
M v M 1962 (2) SA 114 (GW)
Magna Alloys and Research SA (Pty) Ltd v Ellis 1984 (4) SA 874 (A)
Markram v Scholtz and another [2000) 4 All SA 452 (NC)
Mashia Ebrahim v Mahomed Essop 1905 TS 59
McAlpine v McAlpine NO and Another 1997 (1) SA 736 (A)
McGill v McGill (1926) 47 NPD 398
Meeg Bank Ltd v Waymark 2004 (5) SA 529 (SCA)
Menzies et Uxor, Ex parte 1993 (3) SA 799 (C)
Meyers v Marcus and Another 2004 (5) SA 315 (C)
Minister of Education v Syfrets Trust Ltd 2006 (4) SA 205 (C)
Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian & Gay Equality
Project v Minister of Home Affairs 2006 (1) SA 524 (CC)
Minister of Justice: In re Nedbank Ltd v Abstein Distributors (Pty) Ltd & Donelly v Barclays National Bank
Ltd, Ex parte 1995 (3) SA 1 (A)
Mograbi v Mograbi 1921 AD 274
Moola v Aulsebrook NO 1983 (1) SA 687 (N)
Motan and Another v Joosub 1930 AD 61
Mi.ihlmann v Mi.ihlmann 1984 (3) SA 102 (A)
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs and Others 1999 (3) SA 173
(C)
856
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA
6 (CC)
Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA)
Neugarten and Others v Standard Bank of South Africa Ltd 1989 (1) SA 797 (A)
Ngubane v Ngubane 1983 (2) SA 770 (T)
Nkabinde v SAMotor General Insurance Co Ltd 1961 (1) SA 302 (N)
Nkonki v Nkonki 2001 (4) SA 790 (C)
Nortje v Pool 1966 (3) SA 96 (A)
Nortje en 'n Ander, Exparte 1977 (3) SA 1058 (T)
Odendaal v Odendaal2002 (1) SA 763 (W)
Odgers v De Gersigny 2007 (2) SA 305 (SCA)
Oelofse v Grundling 1952 (1) SA 338 (C)
Pandor's Trustee v Beatley & Co 1935 TPD 358
Peter v Minister of Law and Order 1990 (4) SA 6 (E)
Peterson and Another NNO v Claassen and Others 2006 (5) SA 191 (C)
Pil/ay v Pil/ay 2004 (4) SA 81 (SE)
Pinnacle Point Casino (Pty) Ltd v Auret NO and others [1999] 2 Ali SA 511 (C)
Plotkin v Western Assurance Co Ltd and Another 1955 (2) SA 385 (W)
Potgieter v Bel/ingan 1940 EDL 264
President of the RSAv Hugo 1997 (4) SA 1 (CC)
Pretorius v Pretorius 1948 (4) SA 144 (0)
Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC)
Qoza v Qoza 1989 (4) SA 838 (CK)
Rattigan v Chief Immigration Officer, Zimbabwe 1995 (2) SA 182 (ZS)
Rhodesia Railways and Others v Commissioner of Taxes 1925 AD 438
Ripol/-Dausa v Middleton NO and Others 2005 (3) SA 141 (C)
Robinson v Volks NO 2004 (6) SA 288 (C)
Robson v Theron 1978 (1) SA 841 (A)
Rowe v Rowe 1997 (4) SA 160 (SCA)
Rubenstein v Rubenstein 1992 (2) SA 709 (T)
Ryland v Edros 1997 (2) SA 690 (C)
857
S v Col/op 1981 (1) SA 150 (A)
S v K 1997 (9) BCLR 1283 (C)
S v Ncanywa 1992 (2) SA 182 (CK)
SABank of Athens Ltd v Von Zy/2005 (5) SA 93 (SCA)
SASentrale Ko-op Graanmaatskappy Bpk v Snifren en Andere 1964 (4) SA 760 (A)
Salem v Chief Immigration Officer, Zimbabwe, and Another 1995 (4) SA 280 (ZS)
Sontam Bpk v Henery 1999 (3) SA 421 (SCA)
Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A)
Satchwel/ v President of the Republic of South Africa and Another 2001 (12) BCLR 1284 (T)
Satchwel/ v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC)
Satchwel/ v President of the Republic of South Africa 2003 (4) SA 266 (CC)
Schierhout v Minister of Justice 1926 AD 99
Schlesinger v Schlesinger 1968 (1) SA 699 (W)
Schutte v Schutte 1986 (1) SA 872 (A)
Seedat's Executors v The Master (Natal) 1917 AD 302
Sempapalele v Sempapalele 2001 (2) SA 306 (0)
Sepheri v ScanIon 2008 (1) SA 322 (C)
Shields v Shields 1959 (4) SA 16 (W)
Singh v Ramporsad 2007 (3) SA 445 (D)
Shanahan v Shanahan (1907) 28 NLR 15
Snyman v Snyman 1984 (4) SA 262 (W)
Salomons v Abrams 1991 (4) SA 437 (W)
South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA)
Sperling v Sperling 1975 (3) SA 707 (A)
Spies v Lombard 1950 (3) SA 469 (A)
Spinazze and Another NNO, Exporte 1983 (4) SA 751 (T)
Spinazze and Another NNO, Exporte 1985 (3) SA 650 (A)
Standard Bonk of SA Ltd v Wilkinson 1993 (3) SA 822 (C)
Steenkamp NO v Provincial Tender Board, Eastern Cope 2006 (3) SA 151 (SCA)
Suid-Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo 1960 (2) SA 467 (A)
Tv T 1968 (3) SA 554 (R)
858
Telematrix (Pty) Ltd tja Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461
(SCA)
Thompson v Model Steam Laundry Ltd 1926 TPD 674
Torgos (Pty) Ltd v Body Corporate of Anchors Aweigh and Another 2006 (3) SA369 (W)
Triegaardt v Van der Vyver 1910 EDL44
Turffontein Estates v Mining Commissioner Johannesburg 1917 AD 419
Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657
V (also known as L) v De Wet, NO 1953 (1) SA612 (0)
Vale v Vale 1966 (1) SA 541 (SR)
Van Aswegen v Van Aswegen 2006 (5) SA 221 (SE)
Van der Merwe v Road Accident Fund and Another (Women's Legal Centre Trust as Amicus Curiae) 2006
(4) SA 230 (CC)
Van der Walt et uxor, Exparte 1954 (1) SA565 (C)
Van Duyn v Visser 1963 (1) SA445 (0)
Van Erk v Holmer 1992 (2) SA 636 (W)
Van Rooyen v Van Rooyen 1994 (2) SA 325 (W)
Van Staden v Venter 1992 (1) SA 552 (A)
Van Vuuren v Van Vuuren 1949 (4) SA 749 (D)
Viviers v Kilian 1927 AD 449
Volks NO v Robinson 2005 (5) BCLR446 (CC)
W v S and Others (1) 1988 (1) SA475 (N)
Waterson v Mayberry 1934 TPD 210
Watson NO and Another v Shaw NO and Others 2008 (1) SA350 (C)
Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A)
Wiese v Moolman 2009 (3) SA 112 (T)
Women's Legal Centre Trust v President of the Republic of South Africa and Others (unreported
judgment of the Constitutional Court (Case CCT13/09) delivered on 22 July 2009)
Young v Coleman 1956 (4) SA 213 (N)
Zulu v Zulu and Others 2008 (4) SA 12 (D)
Zwiegelaar v Zwiegelaar 2001 (1) SA 1208 (SCA)
859
CANADA:
M.A.S. v F. K.M. 2003 BCSC849 (CanlIl)
Nova Scotia (Attorney General) v Walsh 2002 SCC83,32 R.F.L. (5th) 81, 221 D.L.R. (4th) 1, 211 N.S.R. (2d)
273, 102 C.R.R. (2d) 1, [2002] 4 S.C.R.325, 297 N.R. 203, 659 A.P.R. 273, REJB2002-36303, J.E.
2003-102
ENGLAND:
Best v Samuel Fox Co. Ltd. (1952) 2 All ER394
DaIrympIe v DaIrympIe 2 Hag. Con. 65; 161 Eng. Rep. 1752 -1865 (16 July 1811)
Gammons v Ekins [1950] 2 All ER140 (CA)
Gillett v Holt [2000] 2 All ER289
Ottey v Grundy [2003] EWCACiv 1176
Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981]1 All ER897
Wayling v Jones 1993 WL 963305 (CA (Civ Div)); [1993]69 P. & C.R. 170
Whittington vBowIes 1934 EDL142
THE NETHERLANDS:
HR19 oktober 1990, NJ 1992,192, m.nt EAALen EAA (homohuwelijk)
HR24 januari 2003, NJ 2003/386
RbAmsterdam 13 februari 1990, NJCM-Bulletin, 456-560
UNITED STATES OF AMERICA:
Central States v Gray 2003 WL 22339272 (N.D.III)
Davis v Davis 521 S.W.2d 603, 606 (Tex. 1975)
Ellis vArriaga 162 Cal.App.a" 1000; 76 Cal.Rptr.3d 401
860
Estate of Ricci 201 Cal.App.Zd 146, 19 Cal.Rptr. 739
Estate of Vargas Cal.App.Bd 714
Forest v Forest 9 III.App.3d 111,291 N.E.2d 880
Garduno v Garduno 760 S.W.2d 735
Goodman v Goodman 125 III.App.2d 190, 260 N.E.2d 257
Griswold v Connecticut 381 U.S. 479 (1965)
Hammond v Hammond 49 lex.Civ.App. 482, 108 S.W. 1024
Hawkins v Hawkins 999 S.W.2d 171, 178 (lex.App.1999)
Koebke v Bernardo Heights Country Club (2005) 36 Cal.4th 824
Lee v Lee 112 lex. 392, 247 S.W. 828
Marriage of Vryonis, In re (1988) 202 Cal.App.Bd 712
Marvin v Marvin (1976) 18 Cal. 3d 660
Matter of Blanchflower 834 A.2d 1010 (N.H. 2003)
Parker v Parker 222 F. 186
Roe v Wade 410 U.S. 113 (1973)
Smith v Smith 893 A.2d 934; 2006 Del. LEXIS113
Sousa v Freitas 10 Cal.App.Bd 660, 89 Cal.Rptr. 485 (1st Dist. 1970)
Succession of Chavis 211 La. 313, 2950.20860 (1947)
Velez v Smith (2006) 142 Cal.App.a" 1154
861
LEGISLATION CONSULTED
SOUTH AFRICA:
Cape of Good Hope:
Articles of Capitulation of 10 and 18 January 1806
Cape Statute Law Revision Act 25 of 1934
Marriage Act 16 of 1860 (C)
Marriage Order in Council, 1838
Statutes of Batavia
Natal:
Ordinance 17 of 1846
Transvaal:
Transvaal Huweliks Ordonnantie 3 of 1871
General:
Administration of Estates Act 66 of 1965
Aliens Control Act 96 of 1991
Alteration of Sex Description and Sex Status Act 49 of 2003
Basic Conditions of Employment Act 75 of 1997
Black Administration Act 38 of 1927
Child Care Act 74 of 1983
Children's Act 38 of 2005
Children's Status Act 82 of 1987
Civil Aviation Act 13 of 2009
Civil Proceedings Evidence Act 25 of 1965
Civil Union Act 17 of 2006
Compensation for Occupational Diseases and Injuries Act 130 of 1993
Compensation for Occupational Injuries and Diseases Amendment Act 61 of 1997
Constitution of the Republic of South Africa Act 200 of 1993
Constitution of the Republic of South Africo, 1996
862
Construction Industry Development Board Act 38 of 2000
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
Criminal Procedure Act 51 of 1977
Deeds Registries Act 47 of 1937
Diplomatic Immunities and Privileges Act 37 of 2001
Diplomatic Immunities and Privileges Amendment Act 35 of 2008
Divorce Act 70 of 1979
Domestic Violence Act 116 of 1998
Domicile Act 3 of 1992
Employment Equity Act 55 of 1998
Estate Duty Act 45 of 1955
General Law Fourth Amendment Act 132 of 1993
Government Employees Pension Law, 1996
Guardianship Act 192 of 1993
Identification Act 68 of 1997
Immigration Act 13 of 2002
Immorality Act 23 of 1957
Immorality and Prohibition of Mixed Marriages Amendment Act 72 of 1985
Income Tax Act 58 of 1962
Independent Media Commission Act 148 of 1993
Insolvency Act 24 of 1936
Intestate Succession Act 81 of 1987
Judicial Matters Amendment Act 66 of 2008
Judicial Officers (Amendment of Conditions of Service) Act 28 of 2003
Judicial Service Commission Act 9 of 1994
Judicial Service Commission Amendment Act 20 of 2008
Judges' Remuneration and Conditions of Employment Act 88 of 1989
Judges' Remuneration and Conditions of Employment Act 47 of 2001
Land and Agricultural Development Bank Act 15 of 2002
Local Government: Municipal Systems Act 32 of 2000
Lotteries Act 57 of 1997
Maintenance Act 23 of 1963
863
Maintenance Act 99 of 1998
Maintenance of Surviving Spouses Act 27 of 1990
Marriage Act 25 of 1961
Marriage Amendment Act 12 of 1973
Marriage and Matrimonial Property Law Amendment Act 3 of 1988
Marriage Law Amendment Act 8 of 1935
Matrimonial Affairs Act 7 of 1953
Matrimonial Property Act 88 of 1984
Mediation in Certain Divorce Matters Act 24 of 1987
Medical Schemes Act Blaf 1998
National Credit Act 34 of 2005
National Energy Act 34 of 2008
National Energy Regulator Act 40 of 2004
National Nuclear Regulator Act 47 of 1999
National Railway Safety Regulator Act 16 of 2002
Natural Fathers of Children Born out of Wedlock Act 86 of 1997
Older Persons Act 13 of 2006
Pension Funds Act 24 of 1956
Pension Funds Amendment Act 11 of 2007
Prescription Act 68 of 1969
Prevention of Family Violence Act 133 of 1993
Prohibition of Mixed Marriages Act SS of 1949
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
Recognition of Customary Marriages Act 120 of 1998
Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009
Renaming of High Courts Act 30 of 2008
Rental Housing Act SOof 1999
Road Accident Fund Act 56 of 1996
Road Traffic Management Act 20 of 1999
Sexual Offences Act 23 of 1957
South African Civil Aviation Authority Act 40 of 1998
Special Pensions Act 69 of 1996
864
Succession Act 13 of 1934
Supreme Court Act 59 of 1959
Transfer Duty Act 40 of 1949
Unemployment Insurance Act 63 of 2001
Wills Act 7 of 1953
BILLS:
Civil Union Bill [B26-2006]
Draft Domestic Partnerships Bill, 2008
Draft Muslim Marriages Bill, 2009
Judicial Matters Amendment Bill [B48-2008]
Judicial Officers Amendment Bill 72 of 2001
Draft Marriage Amendment Bill, 2008
Draft Marriage Amendment Bill, 2009
CONVENTIONS:
Convention on the Privileges and Immunities of the Specialised Agencies, 1947
Convention on the Privileges and Immunities of the United Nations, 1946
Vienna Convention on Consular Relations, 1963
Vienna Convention on Diplomatic Relations, 1961
AUSTRALIA:
Commonwealth Family Law Act of 1975
New South Wales:
Children and Young Persons (Care and Protection) Act, 1998
Probate and Administration Act, 1898
Property (Relationships) Act, 1984
Property (Relationships) Amendment Act, 2005
Status of Children Act, 1996
Queensland:
Anti-Discrimination Act, 1991
Discrimination Law Amendment Act, 2002
865
CANADA:
Canadian Charter of Rights and Freedoms
British Columbia:
Definition of Spouse Amendment Act of 2000
Estate Administration Act of 1996
Ontario:
Family Law Act R.S.a. 1990, c. F.3
ENGLAND:
Act of Settlement, 1700
Act of Toleration, 1689
Bill of Rights, 1689 (An Act Dec/aring the Rights and Liberties of the Subject and Settling the
Succession of the Crown)
Confirmatio Cartarum. 1297
Magna Carta, 1215
Matrimonial Causes Act, 1857
Statute of Marlborough, 1267
FRANCE:
French Civil Code
THE NETHERLANDS:
Burgerlijk Wetboek
Perpetual Edict of 1540
Political Ordinance of the States of Holland and West Friesland of 1580
Wet opneming buitenlandse kinderen ter adoptie (24 oktober 2008)
NEW ZEALAND:
Property (Relationships) Act, 1976
SWEDEN:
Cohabitees Act of 2003
866
Cohabitees (Joint Homes) Act of 1987
UNITED STATES OF AMERICA:
Uniform Marriage and Divorce Act of 1973
California:
California Constitution
California Family Law Act of 1972
California Probate Code
Domestic Partner Rights and Responsibilities Act of 2003
Illinois:
Illinois Marriage and Dissolution of Marriage Act (7S0ILCSS/)
Louisiana:
Louisiana Civil Code
New Hampshire:
Revised Statutes Annotated
Texas:
Texas Family Code
867
l J