There are many South African couples who chose to live together in a committed relationship without entering into any formal marriage.
This is according to Gauteng High Court Judge Colleen Collis, who delivered a groundbreaking judgment for unmarried couples.
The judge ruled the courts simply had to keep up with the times, especially if regard is given to the fact that relationships and marriages have evolved.
She granted an order in favour of a woman whose partner died in a car accident. The two had lived together, although he was still married to his estranged wife at the time of the accident. The woman claimed maintenance and support from the Road Accident Fund as he had supported her financially.
But the RAF refused to pay up, as the couple were not legally married.
In granting the order, Judge Collis remarked: “Cohabitation outside a formal marriage and, dare I say, even where one of the parties is still married, is now widely practised and accepted by many communities.”
Brenda Jacobs turned to court after her partner, Wesley Stevens, died in September 2015 following injuries he suffered in a car crash. She said at the time of his death they had lived together for a number of years and they were engaged, even though he was not yet divorced.
He moved in with her and he supported her financially while she was a stay-at-home partner. Jacobs said they had been due to get married as soon as his divorce was finalised and he had assured her of his love and commitment.
Thus, she said, he had a duty to maintain her and her two children.
The RAF, on the other hand, questioned whether their relationship was worthy of the law’s protection and whether it did not perhaps go “against good morals”.
Judge Collis said Jacobs convinced the court that it was a true relationship, Stevens loved her and had wanted to marry her once his divorce was finalised.
He had not lied to her about being married and she had been fully aware of this.
In turning to the issue of morals, the judge quoted another judgment in which it was said “Marriage and family are important social institutions in our society. Marriage has a central part and special place and forms one of the important bases for family life in our society”.
She added that married couples make a commitment to each other to live together and be faithful. This obliged them to support one another.
“But the matter, however, does not end there. There can be no doubt that our courts also have a duty to develop the common law.”
The judge said given the fact that times had changed and while some still valued the sanctity of marriage, the reality was that some people find themselves living together intending to get married, but they cannot do so due some or another legal bar.
“This was precisely the case here,” the judge concluded, ruling in favour of Jacobs.