Unmarried mother of 3 loses first leg of her bid for maintenance

ZELDA VENTER zelda.venter@inl.co.za



African News Agency



A WOMAN who asked the Western Cape High Court to develop the common law to permit unmarried couples in life partnerships to claim maintenance from one another in the event of separation has lost this leg of her application. The applicant argued that the lack of legal recourse for life partners to claim maintenance from one another following the termination of their partnership is constitutionally unacceptable since it discriminates on the basis of marital status and gender and constitutes unequal protection before the law. Judges Judith Cloete and Hayley Slingers this week said there was no need to develop the common law at this stage. “We are not persuaded that development of the common law in the manner proposed by her is necessary or appropriate,” they said. Judge Cloete, who wrote the judgment, said there were other remedies available to the applicant. “The applicant already has a common law remedy, and her entitlement or otherwise to maintenance rests squarely on that remedy. She must first prove facts establishing that the duty of support existed and that it existed in a familial setting. If proven, her right to legal protection will be established,” the judge said. Judge Cloete added that the pending action – in which she will pursue her application for maintenance – afforded her the perfect opportunity to do so. The judge said in reaching these conclusions, the court made it clear that they pertained only to the particular case presented to them by the applicant. The application was heard by a full bench of three judges. The third judge, Derek Wille, issued a dissenting judgment in which he said he would have made an order declaring that partners are entitled to claim interim financial relief from one another following the termination of the life partnership. This is in the context of where the life partners undertook reciprocal duties of support towards each other. The application was sparked by the applicant, who was in a life partnership for nine years with her partner and the father of her three children. They have broken up, and she is trying to claim maintenance from him. As the law stands, the right is reserved only for heterosexual couples who are legally married. As the law does not make provision for this, and in light of her partner refusing to financially maintain her, she has turned to the court in a bid for the common law to allow for maintenance. This was to be her first step before she turned to court to determine the maintenance. She, however, at this stage, asked for interim maintenance, which the judges refused in the majority judgment, while Judge Wille, in his minority judgment, said he would have allowed this. The applicant’s lawyer, leading family law expert Bertus Preller, meanwhile, said they intended to take this matter further, and he envisaged that it would later reach the Constitutional Court.