The South African Law Commission is reviewing the marriage Act to develop legislation to protect domestic partnerships, whether same- sex relationships or heterosexual cohabitation.
While its report will only be out in July, another report looking at the sharing of pension benefits after a relationship has ended is due soon.
The pension-benefits discussion paper will consider whether a partner is entitled to a share of pension benefits after a relationship lasting several years comes to and end.
A Texas woman recently caused a stir in the United States when, at the end of a 34-year marriage, she claimed half her husband’s estate, some R20-million and half his future retirement benefits. Debate centred around whether or not she was entitled to future earnings, even if those were retirement funds.
This case highlights the need to enter into a contract at the beginning of any partnership where lives and homes are shared. This is easier said than done, however.
South Africa’s new Constitution is the most progressive in the world: it protects the right to same-sex relationships and is vigorous in its protection of children’s rights. However, the legal system has not caught up with the Constitution yet.
For example, neither heterosexual cohabitation nor same-sex “marriages” are recognised as committed relationships in law. If a partner in one of these relationships dies intestate, the surviving partner is entitled to nothing.
Similarly, if a child is adopted by a gay couple, or a partner in a gay relationship has a child, and the child is raised by both partners as its parents, the partner who has custodianship of the child can refuse access to the other partner in the event of the relationship breaking up.
Pierre van Wyk of the South African law commission said that at a meeting last week it was decided the commission would look into the question of domestic partnerships, including same-sex relationships, as part of a review of the 1961 marriage Act.
He said that requests for comment on amendments to the marriage Act had drawn copious correspondence from those arguing for the legalisation of same-sex marriages, but nothing on the extension of rights to heterosexual couples who cohabit.
Beth Goldblatt of the Gender Research Project at the Centre for Applied Legal Studies said there would probably be a Constitutional Court application this year for gay marriages to be legitimised.
She says that in any relationship agreement, whether marriage or cohabitation, regardless of sexual orientation, there are three main aspects to be taken into account – property, children and a will.
A will is possibly the easiest step (and most banks will draw one up free of charge for clients). Without it, a married spouse will automatically receive the estate, while a gay or cohabiting partner will receive nothing.
“If you have shared property, it is important to contractually note the nature of that property, what will happen if it is shared and if the partners split up. This is particularly important where women and men live together: often men earn more and women may look after the kids. If they split up and the man has paid toward the house, he will be entitled to keep it and the woman may be left with the children and no home.”
Heterosexual marriages are entitled in law to draw up either ante-natal contracts, which delineate ownership of property, or opt for community of property -which most lawyers counsel against – which sees a 50/50 split.
Despite progressive constitutional rights protecting children, these rights falter when children are born or adopted outside the confines of marriage.
Goldblatt explains: “If you cohabit and have children, they are considered illegitimate.
“The father of illegitimate children does not have the same rights as a married father: he is obliged to pay maintenance, but there is controversy about his rights of access and say in the event of adoption.”
She says that because the law is contradictory and vague, parents who cohabit should get legal advice when drawing up a contract to define parameters with regard to a child, and even then the courts may not recognise the contract.
The situation becomes even more complicated when a member of a same-sex couple adopts or bears a child.
Goldblatt says the law only recognises the relationship between parent and child based on biology or marriage. If a gay relationship breaks up after the couple have raised a child as its parents, the non-custodial parent may have no rights of access.
Jonathan Berger, co-ordinator of the Gay and Lesbian Legal Advice Centre, says a gay person can adopt as a single person, but not as a partner in a relationship.
He suggests the couple should draw up a contract to outline their intent and provide a court challenge if necessary.
He points out that if the custodial parent dies, “the other party is a stranger in terms of the law and would not automatically be a person who could adopt the child”.
In a conventional marriage it is comparatively easy to have a spouse recognised as a dependant in terms of medical aid or pension rules.
But despite a recent court case that found that Polmed, the police medical aid society, was discriminating when it would not allow the partner of a lesbian police officer on the medical aid, medical aid societies, insurance companies and pension funds have not rushed to liberalise their rules.
Goldblatt said in the event of a dispute it would be essential to prove that the relationship is a “a committed cohabited relationship”, what Berger calls a “universal partnership”.
Proving this is not easy. Goldblatt said courts examine whether partners have made “a public commitment to each other [and] if they share finances, as an example”.
She says courts essentially want the relationship to look like traditional concepts of marriage, but not even marriage is traditional anymore.
“The historical hangover of a marriage-based nuclear family barely exists, and that, too, is a Western white concept.”
Berger and Goldblatt recommend that the moment a couple start contributing jointly to their life together they should enter into a contract.