Authored By: Nokwanda Nkumane
University of Fort Hare
Abstract
As a result of the influence of Roman‑Dutch law, South African family law only recognised the right of a spouse to claim maintenance upon the dissolution of the marriage. Under the current Marriage Act and Divorce Act, this protection was not extended to the other partners in a domestic relationship with different spouses. This precedent has now been broken by the judgment of a woman, whose life partnership of 29 years was ‘dissolved,’ in the Western Cape High Court, being awarded interim maintenance against her former partner. The court interpreted the Maintenance Act against the backdrop of other legislation mandated by the constitution to uphold values such as equality and human dignity. In doing so, it extended maintenance protection to the non‑marital life partner without overturning the literal reading of the law. It applied current law to the reality of the more vulnerable partner in such a relationship. This article examines the facts of the case, the applicable law, the judgment, and its significance for women’s lives and the need for reform of family law. It offers a progressive way forward through courts dealing with life partners and truly highlights the need for reform and certainty through legislation recognising life partnerships.
- INTRODUCTION
In South Africa, only spouses who are married may claim maintenance from each other after the termination of marriage. This is the result of the Roman‑Dutch influence, as well as the provisions of the Marriage Act and the Divorce Act. Partners who cohabit and never register their relationship are not covered by this. The Maintenance Act provides for the enforcement of maintenance orders, but this has mainly happened between spouses who are married in law, leaving cohabitants, even after years of commitment, dedication, and contribution to each other’s lives.
This was exactly the barrier the court faced in a recent case. The Western Cape High Court broke new ground by awarding interim maintenance to a woman after the end of her 29‑year cohabitation with her partner. In allegedly ‘reading down’ the Maintenance Act and reading it considering constitutional values such as equality and dignity, the court brought the lives of dependent partners into view, acknowledging the necessity to look beyond the formal institution of marriage to bring the law in line with the reality of dependence. The judgment brings into focus the tension between strict legal provisions and social reality, showcasing the urgency for new legislation to establish a clear and certain framework for recognising domestic partnerships.
This article will discuss legislation that regulates maintenance, the reasoning, trend, inconsistencies, and developments behind the recent judgment, and explore the constitutional justice. It argues that this judgment points toward fairness in the justice system and that there are reforms that need to be made in our legislation to ensure that long-term partners are protected under the Marriage Act.
THE LEGISLATIVE STRUCTURE: NAVIGATING THE STATUTORY FRAMEWORK
The Marriage Act 25 of 1961
It is necessary to look at the main marriage statute, the Marriage Act 25 of 1961, as married spouses under this Act have been viewed in South Africa, prior to life partners being viewed as spouses.
This Act only applies to persons who have contracted a marriage before a marriage officer. Marriage Act dictates the formalities of a valid marriage, consent to marriage, marriages to be solemnized and registered, and prescribes who shall be deemed to be a “spouse.[1] By setting the boundaries of marriage as a legally solemnized union, it excludes partners who cohabit in a permanent life relationship.[2] This has impacted maintenance claims in the sense that only those recognized as spouses according to the provisions of the Marriage Act are able to claim protection under the Divorce Act, and thus the Maintenance Act.
Divorce Act 70 of 1979
The Divorce Act 70 of 1979 deals with divorce between spouses through the death of one of them or divorce, with Section 3 stating the grounds on which a marriage can be dissolved (irretrievable breakdown of marriage, etc.).[3] While this ensures that both spouses are entitled to maintenance and redistribution of property in the event of divorce, its applicability is limited to formal marriages.[4] Life partners, regardless of the length of their relationship, do not fall under this category, owing to the inability of a life partnership to be dissolved through divorce, which is why it is necessary for constitutional principles and broader interpretations of the Maintenance Act to be followed in this case.
Maintenance for spouse
Section 7(2) of the Divorce Act 70 of 1979 states that “A Court that grants a divorce may make an order for maintenance that it considers just, requiring one of the parties to maintain the other until death or remarriage.”[5] This provision is applicable only in the case of divorce between spouses in a formal marriage relationship. Neither of the spouses has a right to post-divorce maintenance, but this is left to the discretion of the Court, which will only grant this if need is proven by evidence.[6]
In the case of EH v SH, the Supreme Court of Appeal highlighted that need is an important factor that must be proven, stating that unless this is done, it would not be “just” for them to issue a maintenance order. The Court also indicated that cohabitation in a life partnership is not in itself a sufficient reason for a former spouse not to be granted maintenance, but if the partner is fully supportive of the former spouse, then the need is no longer present.[7] The other important issue is that Section 7(2) of the Divorce Act links maintenance with a decree of divorce, which means that only spouses who are married under the Marriage Act are entitled to benefit from this section of the Act. This means that life partners are not entitled to claim maintenance under this section of the Act, as they are not “spouses” under the law and are therefore not covered by this section of the Act.
- CONSTITUTIONAL OVERLAY: EQUALITY AND DIGNITY.
The constitution of the Republic of South Africa is the “supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligation imposed by it must be fulfilled”.[8] There are two essential constitutional rights relevant to spousal maintenance: Section 9 (Equality) and Section 10 (Dignity).
3.1 Section 9: The right to equality
Section 9(1) of the Constitution provides that “Everyone is equal before the law and has the right to equal protection and benefit of the law.” Section 9(2) further states that “Equality includes the full enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.” (3) “the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, sex, age, culture, marital status, belief,” etc.[9]
This provision entails that equality is a real substantive right. This means the state must take active steps to correct the disadvantages. When applied to maintenance disputes, these rights show how unfair it is to exclude life partners from legal protection. The Marriage Act and Divorce Act only give maintenance rights to legally married spouses. As a result, cohabiting partners, often women who have spent decades caring for the home and family, are denied the same legal benefits. Courts have therefore used Section 9 to make sure that long‑term life partners are not discriminated against simply because they are not formally married.
3.2 Section 10 Human dignity
Section 10 of the Constitution provides that “Everyone has an inherent dignity and the right to have their dignity respected and protected.”[10] This provision enshrines the value of dignity as an underlying principle of South African law, whereby all people are to be treated with respect and fairness in all aspects of their lives. In terms of maintenance, the issue of dignity is relevant to the situation whereby one partner has dedicated years to a shared household but is not provided for simply because of the lack of legal recognition of their relationship under the Marriage Act or Divorce Act. The failure to provide maintenance to the vulnerable partner undermines their dignity.
CASE LAW ANALYSIS: GROUNDBREAKING JUDGMENTS.
- A.L v R.J.T (17492/2023) [2026] ZAWCHC 99 (4 March 2026).
Judge Gayaat Da Silva‑Salie held that a long-term life partner may obtain interim maintenance where a prima facie duty of support and financial dependence are shown and potential hardship, and that preserving the status quo was justified pending trial.[11]
This is the growing judicial recognition of permanent life partnership in South African law. The court considers the reality of long-term relationships where partners live together and depend on one another financially, instead of focusing on the formal status of marriage.
The case represents a development in family law by allowing the possibility of interim maintenance for a life partner where financial dependence and a duty of support can be shown. This reflects on the injustices and shows the increasing influence of the constitutional values such as equality and human dignity under the Constitution of the Republic of South Africa 1996.
- Volks v Robinson 2005 (5) BCLR 446 (CC)
The court reasoned that the maintenance of a surviving spouse act only applies to a married spouse because marriage creates legal duties, including a duty of support between spouses. People in a life partnership are free to marry if they want the legal protection of marriage. Since Mr. Volks and Ms. Robinson did not marry, no legal duty of support existed at death.[12]
A clear trend in the judgment is that the court emphasises marriage as a legally recognised institution. The court held that the maintenance of a surviving spouse act was intended to protect the spouse because marriage creates a legal duty to support between partners. Since unmarried life partners do not automatically have this legal duty, they are excluded from claiming maintenance from the deceased’s estate.
The decision created an inconsistency with earlier constitutional court cases that extended certain benefits to life partners, particularly same sex partners, before the legislation of same sex marriage. In those cases, the court recognises that a permanent life partnership may require legal protection. However, in Volks, the court refused to extend similar protection to opposite sex life partners, which raised concern about equality and fairness.
A major development in the judgment was the introduction of the choice argument. The majority held that opposite sex life partners have the choice to marry, and if they choose not to marry, they cannot claim legal benefits associated with marriage. Subsequently, the constitutional court recognised the need for greater protection of permanent life partners. In Bwanya v Minister of the High Court, the court recognised an inheritance right for surviving life partners under the Intestate Succession Act 81 of 1987.[13] This demonstrates a gradual shift towards recognising the legal realities of life partnerships.
- Critical Evaluation
Currently, the law on maintenance for life partners is unfair and inconsistent. This is because, under the Marriage Act and Divorce Act, maintenance is provided for in law for those who are legally married. This means that those who are in a life partnership are not provided for in law, even if they have lived with their partners for decades in a life partnership. On the other hand, the Constitution, particularly Section 9 on Equality and Section 10 on Dignity, provides that people should not be denied protection in law on the basis that their relationship does not fit into a category. This means that there is a huge disconnect between what is provided for in law and what is provided for in the Constitution
As a result, a woman who has spent many years caring for the family and the child in a long-term relationship is left in a vulnerable position when the relationship ends. The current legislation does not reflect life as it is lived today and still disadvantages women. The interim judgment by the Western Cape High Court in the maintenance matter was a welcome one as it addressed a gap in the legislation and protected a dependent partner. It also highlights how the current legislation can only be effectively changed by the courts and how such changes will still be subject to doubt and inconsistency.
Opposition to granting maintenance rights to life partners centres on the view that such a decision undermines the institution of marriage and creates confusion between formal and informal relationships. It is further argued that those who choose not to formalize their relationship should not expect the same rights and responsibilities as those who do choose to marry. Such a view does not take into consideration the dependency that exists in a relationship and does not show regard for the principles of equality and dignity that our constitution upholds. The law acknowledges a duty of support in relationships that are outside marriage, for example, between parents and children, so it is wrong to say that maintenance obligations only exist in marriage.
Our maintenance law has reached a turning point. The law is discriminatory and unjust, and it needs to be reformed, but our constitutional principles aim at addressing the injustices and push the judiciary to fair outcomes. The way forward is clear: the law must be changed to allow for the recognition of the maintenance rights of life partners. Equality and dignity must be upheld, not just when a judge is prepared to stretch the law beyond its obvious meaning.
- COMPARATIVE PERSPECTIVES.
Canada
In Canada, “common law spouses” are acknowledged by the courts in many provinces, which grants maintenance rights to partners who have been living together for a certain period, normally three years, or who have a child together. This is based on the principles of equality and fairness. Such dependence and vulnerability are not necessarily based on marriage.[14] By clearly defining what is required for common law status to be acknowledged, the Canadian system seeks to balance the need to respect the institution of marriage while also acknowledging the years of emotional and domestic contribution made to a relationship. The Canadian system is certainly one that would be persuasive for South Africa.
6.2. United Kingdom
In the United Kingdom, life partners are not granted maintenance rights, which shows that they continue to value formal marriage. Nevertheless, the legislature has enacted legislation that has accorded civil partners maintenance rights. This has ensured that they are on the same level as married partners. In addition, the law has provided equitable remedies for cohabitant partners in property disputes. This has ensured that the law has become less rigid in matters that pertain to cohabitant relationships.[15] This model is relevant in the South African context since it has shown that reform does not necessarily have to be a threat to the institution of marriage. It has been shown that reform and the institution of marriage can coexist for the greater good.
Conclusion
South African maintenance law is at a crossroads. For years, only married spouses have been recognized by the Marriage Act and Divorce Act, leaving life partners unprotected, even if they have been together for many years, having children together and create along life together without recognise relationships. This rigid approach no longer fits the realities of today’s world. The constitution demands a different action. Its provisions on equality and dignity require that vulnerable partners are not left without protection simply because they have not married. Recent cases indicate a clear shift in the law.
In the leading case of Volks v Robinson, the Constitutional Court upheld exclusion based on choice and formal marriage. Subsequent cases, however, such as Bwanya v Master of the High Court, and most recently P.A.L v R.J.T, indicate a judicial recognition of life partners.
However, the statute must be reformed, as relying only on the court does not resolve the issues. Judicial innovation assists those who need protection from the law but cannot replace the law. Parliament must be persuaded to modernize maintenance law so that long-term life partners are recognized. Only then will South Africa’s legal framework truly honour equality and dignity, delivering justice to those whose lives and labour sustain families beyond marriage.
Reference(S):
Cases
Bwanya v Minister of the High Court, Cape Town and Others [2021] ZACC 51; 2022 (3) SA 250 (CC).
EH v SH 2012 (4) SA 164 (SCA).
P.A.L v R.J.T (17492/2023) [2026] ZAWCHC 99 (4 March 2026).
Volks v Robinson 2005 (5) BCLR 446 (CC).
Legislations
Constitution of the Republic of South Africa, 1996.
Divorce Act 70 of 1979.
Marriage Act 25 of 1961.
Secondary sources
Civil Partnership Act 2004 (UK); Law Commission, “Cohabitation: The Financial Consequences of Relationship Breakdown” (Law Com No 307, 2007); UK Parliament, Women and Equalities Committee, “The Rights of Cohabiting Partners” (HC 130, 2022).
Family Law Act, RSO 1990, c F.3 (Ontario), s 29; Robert Leckey, “Cohabitation and Comparative Method” (2009) 57 Am J Comp L 1; Anne Sanders, “Cohabitants in Private Law: Trust, Frustration and Unjust Enrichment in England, Germany and Canada” (2013) 62 ICLQ 795.
Heaton J and Kruger H, South African Family Law 4 ed (2015).
[1] Marriage Act 25 of 1961.
[2] Heaton J et al, South African Family Law 4 ed (2015).
[3] Divorce Act 70 of 1979, s3.
[4] Heaton J et al, South African Family Law 4 ed (2015).
[5] Divorce Act, s 7(2).
[6]Heaton J et al, South African Family Law 4 ed (2015).
[7] EH v SH 2012 (4) SA 164 (SCA).
[8] Constitution of the Republic of South Africa, 1996, s 2.
[9] Constitution of the Republic of South Africa, 1996, ss 9(1)– (3).
[10] Constitution of the Republic of South Africa, 1996, s 10.
[11] P.A.L v R.J.T (17492/2023) [2026] ZAWCHC 99 (4 March 2026).
[12] Volks v Robinson 2005 (5) BCLR 446 (cc).
[13] Bwanya v Minister of the High Court, Cape Town and Others [2021] ZACC 51; 2022 (3) SA 250 (CC).
[14] Family Law Act, RSO 1990, c F.3 (Ontario), s 29; Robert Leckey, “Cohabitation and Comparative Method” (2009) 57 Am J Comp L 1; Anne Sanders, “Cohabitants in Private Law: Trust, Frustration and Unjust Enrichment in England, Germany and Canada” (2013) 62 ICLQ 795.
[15] Civil Partnership Act 2004 (UK); Law Commission, “Cohabitation: The Financial Consequences of Relationship Breakdown” (Law Com No 307, 2007); UK Parliament, Women and Equalities Committee, “The Rights of Cohabiting Partners” (HC 130, 2022).
