Pretoria - A woman's maintenance claim of more than R5 million against the estate of her male life- partner has highlighted the unequal protection afforded in law between heterosexual and same-sex unmarried persons.
Same-sex unmarried couples are protected by the enactment of the Civil Union Act, but as the law stands, life-partners are left in the cold because Parliament has not yet enacted a law in this regard.
This subject came under discussion in the high court in Pretoria when Martha du Toit tried to claim more than R5m in maintenance from the estate of her late partner.
Lauren Greyling, the executor of the estate, objected to the claim.
Acting Judge NT Siwendu started off his judgment by saying the issue at hand was whether a cohabiter in a heterosexual partnership or domestic partnership could claim maintenance against the deceased estate of an erstwhile partner.
Du Toit and her now deceased partner lived together for seven years before he passed away.
At the time of their living together, he was still married in community of property to his estranged wife.
He bequeathed the property in which he and Du Toit lived to her. But he was still married to his wife in community of property.
Du Toit told the court that she and the deceased lived together as man and wife and he fully maintained her. He also promised to make provision for her until her death and said there was more than enough money in the joint estate to provide for her.
Du Toit said the man was aware that she did not have the financial means to compensate his wife for her undivided share in the property.
She subsequently claimed more than R5m from her partner’s estate for her future maintenance, but the executor of the estate said her claim was invalid in law.
Du Toit then turned to the court to force the estate to pay her out.
Greyling objected to the claim, saying the claim was based on the Maintenance of Surviving Spouses Act. The legislation defines a survivor to mean the surviving spouse in a marriage dissolved by death. Thus, a cohabiter is excluded from this.
Greyling submitted that the deceased and the applicant had cohabited in a heterosexual relationship and there was no legal duty to maintain a life partner in a heterosexual relationship.
If there were such a relationship, it terminated upon the death of the life-partner.
This defence was premised on a decision of the Constitutional Court, which held that the meaning of a surviving spouse was a party in a legally recognised marriage, and it did not extend to life-partners.
Before 1990, a surviving spouse had no claim for maintenance. But the legislature saw a need for change and enacted the Maintenance of Surviving Spouses Act.
Greyling said the only way unmarried life-partners could be assisted was for Parliament to enact a new law. The Domestic Partnership Bill – which would come to the aid of life-partners – was published for comment in 2008 but has not yet been passed by Parliament.
Judge Siwendu agreed that this situation resulted in unequal protection between heterosexual and same-sex unmarried couples, but said his hands were tied as he could not develop the common law.
He said this was a constitutional matter as it pertained to important legal questions in the development of private and family law.
The judge advised that Du Toit should approach the Constitutional Court.