Words on Wealth: Progress in the courts for common-law spouses

South African law has never recognised what in other countries are referred to as “common law” marriages. Photo: Pexels.com

South African law has never recognised what in other countries are referred to as “common law” marriages. Photo: Pexels.com

Published Sep 10, 2023


The wheels of justice turn slowly, but it seems our justice system is beginning to recognise the rights of people in long-term, co-dependent relationships who have not legalised their relationship through a marriage contract or drawn up a cohabitation agreement.

South African law has never recognised what in other countries are referred to as “common law” marriages. To enjoy the rights of a spouse, you need to have tied the knot legally and registered your union. Unmarried couples don’t have the same level of protection, but they have the option of signing a legal agreement outlining who gets what in the event of death or a break-up.

However, recent developments in case law have challenged enshrined codes regarding who is entitled to benefit financially when a long-term, co-dependent relationship ends and where no form of legal agreement exists.

About a year ago, I reported on the groundbreaking Bwanya case, which involved the rights of a woman whose life partner had died.

Briefly, Jane Bwanya and her partner had been in a committed relationship. The couple had intended to marry, but Bwanya’s partner died before they could do so. With no will, the deceased estate was subject to the rules of intestate succession, which did not recognise her as a beneficiary. The case found its way to the Constitutional Court, which declared that “permanent life partnerships are a legitimate family structure in South Africa”. The Constitutional Court also declared parts of the Maintenance of Surviving Spouses Act unconstitutional and that “partner/life partner” must be included in the definition of a spouse.

More recently, the legal recognition of long-term partners was tested again. A case before the Western Cape High Court (EW versus VH) involved the termination of a long-term relationship, not through the death of one of the partners, but through a break-up.

EW and VH were in a serious relationship for more than nine years. They lived together for seven years, and had three children together. EW said she and her children had been fully dependent financially on her partner and that the four of them had been left “out in the cold” when the relationship ended. She argued that she was entitled to maintenance, similar to the maintenance a divorced spouse can claim on the break-up of a marriage. (Note that the children’s maintenance was never in question – parents are legally obliged to support their children financially under the Maintenance Act of 1998 and the Children’s Act of 2005.)

Among other things, EW wanted the common law changed to declare that “partners in life partnerships in which the partners had, during the existence of the life partnership, undertaken to each other reciprocal duties of support, alternatively factually reciprocally supported each other, are entitled to claim maintenance from one another, following upon the termination of the life-partnership”.

Three judges decided the case, and the majority judgment went against EW, dismissing her application. The judgment argued: “The applicant already has a common law remedy (referring to the Bwanya case) 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.”

However, it argued that EW had not proved that this duty of support existed in her relationship. “A ‘permanent romantic relationship’ is not synonymous with a permanent life partnership wherein the parties undertook reciprocal duties to support one another within the context of a family setting. Our understanding of the case law … is that a ‘permanent romantic relationship’ does not per se equate to proof of the assumption of a reciprocal duty of support in a family setting,” the judgment said.

The dissenting judge, Derek Wille, argued that this particular romantic relationship was indeed synonymous with a permanent life partnership. “The applicant and the respondent partook in a wedding ceremony abroad akin to a wedding. They manifested their intention to be bound together in a permanent relationship in the presence of witnesses,” Wille said, adding that there was clear evidence of EW’s dependence on her partner. “She did not earn an independent income, she had no assets of her own, she was a mother of three young children, and she was entirely financially dependent on the respondent.”

Commenting on the case in a blog, Roy Bregman of family law specialists Bregman Moodley Attorneys, said: “The court concluded that the law should handle financial support similarly for both married couples and those in long-term relationships. It’s crucial to demonstrate a family-oriented responsibility for support to ensure legal protection. This ruling mirrors evolving laws that acknowledge the rights of people in non-marital relationships, guaranteeing their eligibility for financial assistance.”

* Hesse is the former editor of Personal Finance