CAPE TOWN: 20 March 2023

The Women’s Legal Centre Trust (WLCT) is disappointed by the majority judgment handed down by the Western Cape High Court full bench on Friday, 17 March 2023.  The WLCT was admitted as amicus curiae in the matter of EW v VH in which the Applicant (“W”) sought the right to claim interim maintenance from the Respondent (“V”) following the termination of their opposite-sex life partnership and pending the outcome of action proceedings that she had instituted against him. In order for her to be able to claim maintenance, the Applicant required that the High Court develops the common law duty of support so as to allow for maintenance claims between partners in unmarried opposite-sex permanent life partnerships. If she had been successful, countless women in similar circumstances would have been enabled to bring their claims for interim maintenance to court for consideration.  

The majority of the Court, however, opted not to determine this case, instead relying on technical legal grounds to dismiss it rather than addressing the very real discrimination that women in opposite-sex life partnerships experience when their relationships break down irretrievably. The Court therefore missed out on the opportunity to apply a progressive human rights-based approach and through it respect, protect and promote substantive equality. Although the majority recognised that the evidence placed before it by the WLCT had value and clearly showed that women in life partnerships face discrimination, in that there is no legislation that provides for their right to claim maintenance, the Court decided not to deal with the discrimination. The evidence placed before it by the WLCT show many women are left homeless and destitute through no fault of their own and without any recourse when relationships terminate as a result of an irretrievable breakdown and that, unlike in cases of marriage, women are unable to bring maintenance applications in terms of the Divorce Act or any other legislation. 

The court held that “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 referred to herein 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.”

It is our position that it is a grave affront to women’s right to equality and dignity, particularly for those women who dedicate years of their lives to their partners and children and who have no meaningful choice in the decision to marry, to be told that their life partnerships are effectively not worthy of protection through the development of the common law.

It is imperative for our courts to recognise that other family structures outside of the ‘nuclear family’ structure exist in our diverse society and, in the absence of specific legislation that may be impugned for its lack of inclusiveness, s 8(3) of the Constitution does in fact empower courts to develop the common law to give effect to rights in the Bill of Rights. 

Looking at these reasons and considering the tragic history of this country, it will be no stretch of the imagination to deduce that most persons adversely affected by the absence of any kind of financial security upon the termination of life partnerships will be indigent Black women.

This does not detract in any way from the discrimination experienced by the Applicant.  As she rightly points out, the failure of the law to provide her with a right to claim maintenance in the circumstances of this case discriminates against her on the basis of gender and marital status.  While the facts of a particular case may vary, the vulnerability of women and the consequences they suffer are all too similar. It is the women, rather than the men, who are often left financially stricken and without any recourse to support from the men for whom they’ve sacrificed much.

Considering the economic realities of this country, we know that Black women are particularly vulnerable to poverty.  The lack of financial resources, in turn, will play a larger role in a woman’s “choice” to enter and remain in an unmarried life partnership.  The lack of financial resources will also affect the degree to which particularly vulnerable Black women are affected by the discrimination and their ability to seek remedy.  These intersecting grounds of discrimination required the Court to look beyond legal technicalities and embrace their constitutional obligation to develop the common law.

The absence of a remedy to claim maintenance upon the termination of a life partnership, in which the parties had undertaken reciprocal duties of support, violates the constitutional rights of women in those relationships.  The state, while implicitly recognising a need to do so, has failed for over two decades to remedy the constitutional breach and, as pointed out by the minority judgment, it was the duty of this Court to act.

The WLCT remains committed to achieving substantive equality and advancing the rights of women and believes that it is critically important to address the discrimination present in our family law to ensure equal recognition and protection of relationships and to achieve substantive equality in our country.

The Women’s Legal Centre is an African feminist legal centre that advances women’s rights and equality using tools such as litigation, advocacy, education, advice, research, and training.

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