Last Monday, the Constitutional Court handed down judgement in the case of Ethel Robinson and dealt a blow to the 2,3-million South Africans who described themselves as life partners in the most recent census. Robinson was in a monogamous life partnership for 15 years and sought to claim maintenance from her deceased partner’s estate.
Justice Thembile Skweyiya, writing for the majority, ruled that it is not unfair discrimination to make a distinction between the survivors of marriage on the one hand and survivors of heterosexual life partnerships on the other in the context of maintenance claims. Justices Yvonne Mokgoro, Kate O’Regan and Albie Sachs penned thoughtful dissenting judgements.
In determining whether the discrimination is unfair, the majority judgement failed to consider the position of domestic partners in our society. It did not examine whether they suffer patterns of disadvantage, the purpose of maintenance claims or the extent to which the discrimination affects domestic partners negatively and undermines their dignity.
Instead it drew formal legal distinctions between married people and unmarried people, emphasised the importance of marriage as an institution in our society as well as the fact that there is no legal obligation of support imposed on domestic partners during the subsistence of these relationships. The majority concluded that while the law is discriminatory, it is nonetheless fair in according this benefit to married people, and that there is no infringement of the right to dignity.Â
This begs the question: What then is the purpose of “marital status” being included as a prohibited ground of unfair discrimination in the Constitution?
The intention of our constitutional drafters was unquestionably to ensure that marriage was not privileged. They sought to guarantee that in our constitutional democracy a wide range of family forms that fulfil important social and economic functions in our society are treated with equal concern and respect. This was also in recognition of our historical legacy of domestic partnerships, which resulted from the migrant labour system as well as the denial of legal recognition of Muslim and customary marriages. Â
In his judgement, Justice Skweyiya accepts that women in domestic partnerships become economically dependent on men and are left destitute and suffer hardships on the death of their male partners:
“In the case of the very poor and the illiterate the effects of vulnerability are more pronounced. The vulnerability of this group of women is, in my view, part of a broader societal reality that must be corrected through the empowerment of women and social policies by the legislature.
‘It is a widespread problem that needs more than just implementation of what, in their case, would be no more than palliative measures. It needs more than the extension of benefits under Section 2(1) to survivors who are predeceased by their partners. Unfortunately the reality is that maintenance claims in a poverty situation are unlikely to alleviate vulnerability in any meaningful way.”Â
The Constitutional Court ruling has nothing to offer women in this vulnerable group, not even palliative measures such as maintenance claims, because it suggests this must be dealt with by the legislature.
However, judges make decisions all the time that are empowering and have significant policy implications. Where there is judicial will, judges will find a way. In 2004 in the Juleiga Daniels and Nonkululeko Bhe cases, the Constitutional Court extended inheritance rights and maintenance claims to spouses in Muslim marriages and to women under African customary law, with significant rather than palliative consequences for women in those groups.
Being able to claim maintenance would significantly assist poor women in domestic partnerships. Even if their partner’s deceased estate consists of only their home, a maintenance claim may make the difference between keeping and losing that home in practice.
What this judgement makes clear is that domestic partners have no rights to maintenance during their relationships or when they end, unless they enter into contracts or execute wills, options that are available to few. It also makes it clear that there is a drastic need for law reform to recognise and protect such relationships
Michelle O’Sullivan is director of the Women’s Legal Centre which represented Ethel Robinson in this matter