In order to better understand the legal position of a life partnership, it is important to reflect it against the recognized marital constructions of our legal system, being a civil marriage (opposite sex), a civil union (same sex) and customary marriages (traditional African marriages).
A civil marriage is defined in the Marriage Act 25 of 1961 as a voluntary union entered into by one man and one woman who have the necessary legal capacity to do so and who are competent to marry. From the latter it is evident that only opposite sex couples can enter into a marriage in terms of the Marriage Act. On the other hand, the Civil Union Act 17 of 2006 defines a civil union as the voluntary union of two persons who are both 18 years of age or older, which is solemnized and registered by either a marriage or a civil partnership, in accordance with the procedures prescribed in the Act. It is therefore not only possible for same sex couples to conclude a marriage in terms of the Civil Union Act, but also for opposite sex couples. It is important to note that the same legal consequences of a civil marriage in terms of the Marriage Act, applies to a civil union in terms of the Civil Union Act and therefore there is no legal difference between the two.
So, what are the legal consequences of a life partnership, given the above legally recognized constructions? The short answer is that there are no automatic legal consequences to a life partnership, however, as is often the case, there are exceptions which will be elaborated on below. A life partnership is where two persons, irrespective of their sex, cohabitate in a permanent intimate relationship without having validly married one another in terms of the above legislation. Due to such partnerships being largely unregulated, it is left to the parties to regulate their rights and obligations by way of express agreements/undertakings, thus on a contractual basis and will have to rely on other legal remedies such as enrichment or the law of partnerships.
As mentioned, there are certain exceptions to the starting point that life partnerships are unregulated;
1. Legislation such as the Domestic Violence Act 116 of 1998 makes provision for a party in a domestic relationship to obtain a protection order where he or she has been the victim of domestic abuse as defined in the Act. The definition of ‘domestic partnership’ includes a partner in a life partnership.
2. With the influence of the Bill of Rights, marital consequences have been extended to life partnerships by the courts on a piecemeal basis, however the latter mostly relates to same sex life partnerships before the enactment of the Civil Union Act.
In order to practically demonstrate the legal position of life partnerships further, one can look at some fundamental differences between itself and the above-mentioned marital constructions as set out below;
1. Neither a spouse in a marriage/civil union or partners in a civil union may enter into a similar relationship with any other person during the subsistence of that relationship, whereas a partner to a life partnership may do so.
2. A marriage or civil partnership may only be terminated by death or on the grounds of a court order (divorce order), whereas a life partnership can be terminated by either or both of the partners thereto at any time.
3. Where a child is born from married parents, both said parent will automatically have full parental rights and responsibilities toward the child. Where a child is born from parents who are not married, but rather life partners, the child is regarded as having been born from unmarried parents and as a result only the biological mother will have full parental rights and responsibilities over the child.
The differences in legal consequence between the above legally recognized constructions and life partnerships:
1. One of the most fundamental legal consequences of marriage is the reciprocal duty of support between spouses/civil partners. These spouses/civil partners are obligated to support each other during the subsistence of the marriage/civil union and in many cases even after such marriage/civil union has been terminated. The latter instance entails maintenance either in terms of the Divorce Act 70 of 1979 or in terms of the Maintenance of Surviving Spouses Act 27 of 1990, in which case maintenance can be claimed from the estate of the deceased spouse. On the other hand, the case of Volks NO v Ronbinson, which was a Constitutional Court judgment, held that partners to a life partnership cannot rely on the Maintenance of Surviving Spouses Act to claim for maintenance from the estate of his or her deceased partner, as there is no automatic reciprocal duty of support in such relationships and therefore the benefit of such a claim is only available to parties to a marriage/civil union. It is however possible for partners in a life partnership to contractually agree with one another and make provision for maintenance as described above.
2. Where a spouse/partner in a marriage or civil partnership dies without leaving a valid will, the legal consequence would follow that the surviving spouse/partner would inherit in terms of the Intestate Succession Act 81 of 1987. On the other hand, due to there being no automatic legal consequences to life partnerships, heterosexual partners to such relationship will not be able to inherit intestate from their deceased partner, however same sex partners to a life partnership will be able to rely on the Intestate Succession Act for inheritance as provided for by the judgment made in the case of Gory v Kolver NO, another Constitutional Court judgment.
The position regarding life partnerships is still very inconsistent. As it stands, our law is of the stance that couples who intentionally decide not to get married, not due to any legally recognized impediment, are not allowed the same benefits as couples who have solemnized their relationship in accordance with any of the above mentioned legislation and resultantly there are no ex lege (by operation of law) consequences ascribed to life partnerships.
- Liam Connan