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Law of Life Partnerships

1. Introduction
Across the ages , a particular familial form has held monogamous, heterosexual,
permanent and reproductive. This family is natural and has helped establish and
maintain a kind for civilisation, including our own
The case in South Africa:
- This particular description of marriage is problematic in South Africa because

it has never really been the case here

In fact, both US and in SA = declining marriage rates
Change in the importance of marriage being attached to religion
Educational opportunities, specifically among indigenous South
African women, result in women not marrying at a traditionally
young age and perhaps never getting married because of the
available opportunities for women to succeed in the corporate

Difficult to find a partner that shares the same traditional ideal
Ellman [Martial roles and declining marital rates] suggests that this is
Womens education and labour force participation (straying away
from the man only being the breadwinner) BUT PRIMARILY

combined with mens increasing labour force problems

Choices about marital roles
There is multiple ways in which individual can be intimate and what the law needs to
do is accommodate all those ways rather than just the traditional ideal of what
marriage is.
Ellman (at 485) argues that people who are married are more likely to stay together,
they pool their financial resources, feel a sense of responsibility to each other, and
have confidence in the durability the relationship.
Being married may also guarantee certain legal benefits
Barret [Law of Persons and the Family] (at 172): marriage (or family law) seeks to
promote protection, legal certainty value system and symbolism.
You what you sow [H Kruuse article]:
- Marriage-centric approach

2. Social Changes in the evolution of traditional concepts

Ancient history:
- Marriage became something that was governed by the church but gradually

became more secular I.e. not necessarily tied to the church

Marriage in law:
Sui generis - of its own kind, something unique
Consortium omnis vitae partnership in all of life
What makes marriage in the law unique, An abstraction
comprising the totality of a number of rights, duties and advantages
accruing to spouses of a marriage. These embrace intangibles
In terms of common law, marriage creates a physical, moral and
spiritual community of life. This community of life includes
reciprocal obligations of cohabitation, fidelity and sexual

The courts consider marriage a highly significant institution


International instruments recognises the right to marry nd obliges states to respect
and protect marriage and the family :
- The Universal Declaration of Human Rights, 1948: article 16
- The International Covenant of Civil and Political Rights, 1966: article 23
- The African Charter on Human and Peoples Rights, 1981, Article 18
In our Constitution , section 15(3), does not have an explicit right but that does not
stop the court from interpreting the right encompassing marriage
Recognition of the institution of marriage vs the right to marriage:

Dawood, Shalabi and Thomas v Minister of Home Affairs:


Para 30: 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 that marriage, for they
make a promise to one another to establish an 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... But such relationships have more than personal significance at least in part
because human beings are social beings whose humanity is expressed through their relationships
with others. Entering into a marriage therefor is to enter into a relationship that has public

significance as well
Para 31: The institutions of marriage and the family are important social institutions that provide
for the security, support and companionship of members of our society and bear an important
role in the rearing of children. The celebration of a marriage gives rise to moral and legal
obligations... These legal obligations perform an important social function.
Para 32: South African families are diverse in character and marriages can be contracted under
several different legal regimes including African customary law, Islamic personal law and the civil
or common law. However, full legal recognition has historically been afforded only to civil

Volks NO v Robinson and Others


Para 80: Although our Constitution contains no express provision protecting the institution of

marriage, it nevertheless recognises the right to freely marry and raise a family
Para 81: There can be no doubt that our Constitution recognises the institution of marriage. This
much is apparent from section 15(3)(a)(I) which in substance makes provision for the recognition

of marriages concluded under any tradition, or a system of religious, personal or family law
Para 82: The Constitutional recognition of the right freely to marry and the institution of marriage
is consistent with the obligations imposed on our country by international and regional human
rights instruments which impose obligations upon states to respect and protect marriage

Para 83: Under article 23(4) of the ICCPR states that state parties are required to take appropriate
steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and

its dissolution.
Para 84: Article 16 of the Universal Declaration of Human Rights provides that men and women
have the right to marry and to found a family; as well as entitled to equal rights. Furthermore,

marriage shall only be entered into with the free and full consents of the intending spouses
Para 85: Therefore, both the Constitution and international instruments impose an obligation on our
country to protect the institution of marriage.

Concluded in terms of Marriage Act or the Civil Union Act
Law does not identify civil marriages with any particular religion secular

Definition: a customary marriage is one that is considered to be in line with customary
law and the Recognition of Customary Marriages Act
Customary law refers to the customs and usages traditionally observed among the
indigenous African people of South Africa
Prior to 2000 customary marriages only received limited recognition : this was due
to the fact that customary law permits polygyny, which is not law according to the
Marriage Act
Recognition of Customary Marriages Act now fully recognised :
- Role of the act is to bring customary marriages in line with the precepts of the

While there are several key differences between the RCMA and Marriages
Act, many of the requirements and consequences imposed by the RCMA are

similar to the Marriage Act

- Some commentators argue that equality and dignity are infringed by:
- It was also argued that the fact that the RCMA allows for polygamy, but the
Marriage Act expressly forbids it, amounts to an infringement of equality and

creates conflicting and unfair laws

Important to critically look at whos perspective this is coming from because
these infringements on rights in the Constitution is apply a Western
perspective towards customary traditions
Customary law is in very limitedly represented in light of the

Constitution and is still bound by the Constitution

Perhaps those concepts are being abused and hence they infringe on
certain rights. (Malpractice of customary marriages not the actual

institution itself)
Sections of Constitution that support recognition of customary marriages:

s9(3) and (4); 15(1) and (3) also s30 and s(31)
Sections against recognition: s9(3) and (4) and s10 again perhaps against the

malpractices of customary marriages rather than the marriage itself

For now the current position of this debate is that the specific elements of
alleged inequality in the RCMA is justified by the fact that it brought about a
great deal of equality and fairness that had not existed before the Act was

Current position = Muslim marriages receive only limited recognition.
- There has been an attempt to force government to legislate: Womens Legal
Centre Trust v President of the Republic of South Africa and Others 2009 (6)
SA 94 (CC)
Application for direct access
Sought a declaratory order and order directing the President and
Parliament (ito s 167(4) of the Constitution)
Statutory recognition of Muslim marriages:
- Definition of marriage in Childrens Act 38 of 2005

marriage means a marriage (4) recognised in terms of South

African law or customary law; or (4) concluded in accordance with a
system of religious law subject to specified procedures, and any
reference to a husband, wife, widower, widow, divorced person,
married person or spouse must be construed accordingly

Criminal Procedure Act 51 of 1977, s 195(2)

For the purposes of the law of evidence in criminal proceedings,
marriage shall include... any marriage concluded under any system

of religious law
Judicial recognition of Muslim marriages
Ryland v Edros 1997 (2) SA 690

The parties were married according to Muslim rites. The husband had terminated the

marriage as required by Muslim religious law.

He instituted action for the eviction of his former wife from their common home.
She defended the action on the basis of an alleged precarium and argued that the

plaintiff had failed to give her reasonable notice of termination.

The defendant also filed a claimed based on the existence of an alleged contractual

agreement in terms which she had been entitled to arrear maintenance.

Court was asked to decide whether the defendant was entitled to the maintenance
Before addressing substantive issues, the court had to resolve whether it was
precluded from enforcing the 'contractual agreement' between the parties on the basis
that it was void because of public policy as was decided in Ismail v Ismail 1983 (1)
SA 1006 (A), where the court refused to enforce claims for maintenance and deferred
dowry because the marriage according to Muslim rites was potentially polygamous

and therefore contrary to public policy.

The court held that the principles of equality, tolerance and accommodation which
underlie the Constitution 'irradiate' the concepts of public policy and the boni mores
that our courts have to apply (at 707H-I, read with 708-9), and that the Ismail decision
did not preclude a court from enforcing claims such as those brought by the

Courts can enforce contracts arising from (monogamous) Muslim marriages
Accordingly it was decided that the defendant was entitled to succeed in her claim for
non-prescriptive arrear maintenance

Hassam v Jacobs [2008] 4 ALL SA 350 (C) & 2009 (5) SA 572 (CC)

Do the benefits provided by the

Cape High Court held that s1(4)(f) of the Intestate Succession Act is inconsistent:
interpret spouse is to concluded in polygamous Muslim Marriages. Survivor in

MSSA read to include polygamous Muslim Marriages


Draft Muslim Marriages Bill

- Been a hugely controversial drafting because of the subjugation of Islamic

law being governed by South African private law

Polygyny was widely debated
Islamic law is patriarchal in nature also debated
Important contents:
No automatic application (it is an opt-in system)
Men can marry up to 4 wives (court approval required wife/wives

joined in proceedings)
Recognises a husbands right to talaq his wife but regulates the


Singh v Ramparsad

Plaintiff and husband married in terms of the Vedic branch of the Hindu religion
This branch does not recognise divorce (marriage is an in dissoluble sacrament)
Plaintiff and defendant are separated and the plaintiff wants divorce. She approaches

the court to get a divorce

The court refused to grant the relief sought by the plaintiff. In essence, the relief tge
plaintiff sought amounted to a request to convert her Hindu marriage that has not been
solemnised in terms of the Marriage Act into a civil marriage, by declaring that it falls

within the ambit of the Marriage Act

It further explained that it would have been futile for the court to declare the
plaintiffs Hindu marriage to fall within the ambit of the Divorce Act uness the court
also imposed divorce on all Hindu spouse. It was submitted that it is impermissible
for the court to impose divorce on Hindi spouses

Govender v Ragavaya NO

Plaintiff and husband married in terms of Hindu rites in 2004

Husband dies and widow lays claim against the estate
Executor (father-in-law) refuses claim = marriage invalid (not solemnised in terms of

the Marriage Act)

Following the decision of Campbell , the court recognised that monogamous Hindu
marriages could be recognised


Living together outside marriage in a relationship which is analogous to
Self-regulation of domestic partnerships
- NB: there is no such thing as a common law marriage
- Wills
- Contract provided it is not unlawful
Jointly entering contracts of sale/lease
Life partnership contracts
Contracts of agency
- Claims of unjustified enrichment
- Estoppel (a person is prevented from asserting certain matters before the court
to prevent injustice - the person is said to be "estopped")
- Universal Partnership
Statutory recognition
- Estate Duty Act 45 of 1995
- Pension Fund Act 24 of 1956
- Income Tax Act 58 of 1998
- Domestic Violence Act 116 of 1998
- Rental Housing Act 50 of 1999
Universal Partnership
- Taken from a commercial setting
- Requirements:
a) That each of the partners bring something into the partnership, whether it be
money, labour or skill
b) That the partnership
Judicial recognition
Butters v Mncora
Cloete v Maritz
Paixao v RAF

Wrongful death of a breadwinner (dependants action)

HC would be an affront to the fabric of society and seriously erode the institution

of marriage if the dependants action were to be extended

SCA no reason to restrict the action to the traditional family and blood relationships
when social change does not require it

Volks v Robinson

Courts had skirted the issue of heterosexual life partnerships in comtext of same-sex

domestic partnerships, not necessarily the same

Constitutionality of the denial of statutory spousal benefits to heterosexual life

Confirmation of HC order exclusion i.t.o Maintenance of the Surviving Spouses Act
= unconstitutional (unjustifiably unfair discrimination and violation of the righ to
Majority upheld appeal:
Inappropriate to ex post facto impose a duty of support

Future Status: debate on recognition:

- Recognition of domestic partnerships in SA:
Civil Union Act (registered same-sex focus)
Domestic Partnerships Bill 14 January 2008 (been heavily criticised:
badly drafted)



Fourie and Bonthuys approached HC in 2002 compel the state to register their

HC refused application and they applied to CC for direct access which was similarly

The SCA found it appropirate to develop the common law to include the registration
of same-sex marriages

SCA developed common law, but

Inability to procreate (para 85)
- Demeaning those who are unable or choose not to
- Not relevant from a legal/constitutional perspective