Cape Town - The Women’s Legal Centre Trust (WLCT) has expressed disappointment that the Western Cape High Court found it was not persuaded at this stage that the common law should be developed to permit unmarried couples in life partnerships to claim maintenance from one another in the event of separation.
The court recently dismissed a woman’s application for interim financial relief pending further court proceedings.
Judges Judith Cloete and Hayley Slingers found: “We are not persuaded, given the approach adopted by the applicant in this matter, that we are in a position to make a properly informed decision about whether the common law development she seeks is required.
“Nor are we persuaded that development of the common law in the manner proposed by her is necessary or appropriate. The applicant already has a common law remedy 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. The pending action affords her the perfect opportunity to do so.
The application is dismissed with no order as to costs.”
The woman and man were previously involved in a romantic relationship for 8 to 9 years until April 6, 2022 when the man vacated their common home, court papers read.
Three young children were born from their relationship.
When the parties started their romantic relationship they were still entangled with their previous partners.
The applicant had not yet terminated her relationship with her former partner/boyfriend and the respondent remained married until 2019.
There are pending proceedings against the man in which the woman argues that their relationship constituted a permanent life partnership.
Accordingly, her case was that the court should develop the common law in a manner that gives effect to the extent that the common law and legislation do not adequately do so, by effectively recognising a legal duty of support for unmarried permanent life partners following the termination of the life partnership.
To achieve this, she launched an application for interim maintenance, pending the determination of the action, as well as a contribution to her costs in pursuing the action.
She sought cash maintenance of R56 000 a month and payment of her medical and vehicle expenses. She also sought an order, as part of her maintenance claim, that the man pay R1 million as an initial contribution towards her costs in the pending action.
For the WLCT, who was amicus curiae (friends of the court) in the matter, attorney Charlene May said: “We are left disappointed that the Western Cape High Court did not embrace its constitutional obligation to develop the common law to allow for women in opposite sex life partnerships to claim maintenance at the termination of the relationship.
“As the WLCT pointed out to the Court it’s not just (the applicant) who is in this position but countless other women who’d hoped this court would address the discrimination they face in not being able to claim maintenance.”