/ 8 July 2020

The fight for equality in domestic relationships goes to the courts

The Marriage That Went From Love To Imprisonment
Too many women continue to believe that domestic partnerships or cohabitation is recognised in our common law and that a “common-law marriage” comes into existence when couples live together as if they were legally married. (Graphic: John McCann/M&G)


South African law currently does not allow women living with a man to claim “spousal” recognition from their deceased partners’ estates, despite the fact that 3.5-million South Africans live in such partnerships.

Women in domestic partnerships, which are not, contrary to popular belief, common-law marriages, have long faced discrimination. The Women’s Legal Centre (WLC) is now working to help redress this discrimination in the case  — Jane Bwanya vs The Executor of the Estate Ruch and Others  — brought before the Cape Town high court in which the WLC is the first amici curiae or friend of the court. 

Under South African law (in the form of the Intestate Succession Act (ISA) or the Maintenance of Surviving Spouses Act) only women who are recognised as spouses have the right to claim inheritance and maintenance in instances where their partner dies without a will. 

Jane Bwanya’s partner Anthony Ruch left no valid will and his estate, therefore, has to be dealt with under the ISA. Since the ISA does not recognise her as a spouse, Bwanya was left unable to inherit from his estate. She was also precluded from instituting a claim under the Maintenance of Surviving Spouses Act.

The matter between Bwanya and the executor (and his extended relatives) of Ruch’s estate has been settled in that they have opted to make a monetary offer to her. The question of the ongoing discrimination caused by the lack of recognition, however, remains before the court for adjudication. 

Judgment has been reserved.

Confusion around common-law marriage 

The WLC has seen increasing numbers of women approach us for legal advice after the death of their long-term domestic partner. In 2018 alone, we recorded more than 40 instances where women living in domestic partnerships found themselves in need of legal assistance. 

These women are often left out of funeral arrangements, are evicted from their homes and are unable to claim maintenance. Male relatives often remove property from a shared home and proceed to register deceased estates without any consultation.

Too many women continue to believe that domestic partnerships or cohabitation is recognised in our common law and that a “common-law marriage” comes into existence when couples live together as if they were legally married. 

In fact, there is no such thing in South African law as a common-law marriage. It is a historical term used by people who live together. Over time, people have attached legal meaning to the term. Couples often think that because they have lived together for more than seven years this means their relationship is the “same” legally as a marriage, but this is simply not true. 

It is a very common misperception and it is the reason women, particularly black women, find themselves destitute when there is a break-up or death. 

Gender disparities in domestic partnerships persist

South African society has continued to evolve in respect of our values and norms and as a result, so have our cultures and traditions.  

This evolution is reflected in the increase in people identifying themselves as living in domestic partnerships, which may have been frowned upon previously. 

Through the national census and the surveys conducted by Statistics South Africa, we see that in 1996, 1.2-million people said they were living in a domestic partnership. In 2001, there were 2.4-million people identified as such. By 2011 the number of people in domestic partnerships had increased to 3.5 million. 

The 2011 statistics also provide us with a more detailed picture of domestic partnerships in South Africa. In terms of race, black women make up most people who self-identified as living in domestic partnerships. Less surprising is the fact that fewer men identified themselves in this way. This clearly indicates that, even though men were in domestic partnerships, they did not admit to this on official documentation. 

The WLC has also noted this incongruence in cases in which domestic relationships break down irretrievably. In these cases, men are more likely to deny that the relationship was a domestic partnership or that any duty to maintain ever came into existence between the parties. Women in these instances are then dismissed as mere “girlfriends” who are not entitled to any financial support or to any rights to housing, land or property which may have accumulated during the relationship.

Based on our experience,  women also frequently lack the ability to negotiate the conclusion of a marriage. 

This is usually because of patriarchal views and practices which requires a proposal of marriage by a man to a woman. In the context of our customs or religious practices, women are often not able to negotiate their own marriage contract. This is instead left to the men in the respective families. 

Women are also more likely to remain in a domestic partnership where the father of their children has no interest in marriage, even though they themselves may wish to marry.

The emphasis should therefore not be on a couple’s choice to enter a marriage, but the couple’s intention of caring, supporting and maintaining each other during their relationship. This is of particular importance in relation to the fact that women are more likely to perform care work, which is unrecognised, undervalued and not paid during a relationship. 

The law must recognise our changing society

There has been a failure on the part of government to legislate the issue. 

In 2008 the department of home affairs sought comment on a draft Domestic Partnership Bill but there has been no further action taken since then. 

The minister of justice, who is the third respondent in the Bwanya case, has agreed to abide by the court’s decision. This indicates that the state has no intention of addressing the discrimination through legislation. 

In fact, the law has advanced significantly faster through our courts than through legislative development. 

Women in heterosexual domestic partnerships have been recognised by courts as being able to claim maintenance from the Road Accident Fund where their partner has died in an accident, for instance. 

We have also seen that where domestic partnerships are contractually entered into and notarised, a duty to maintain is recognised under the Maintenance Act. 

Our courts have also found that women in Muslim marriages are able to claim maintenance even though their marriages are not legally recognised. 

Couples in same-sex domestic partnerships enjoy the very same recognition under the definition of spouse in respect of the ISA. This development occurred because of litigation and the Constitutional Court itself finding that there was a need to recognise our changing society and to recognise the rights of those being discriminated against. 

It therefore stands to reason that the law in its current form is intolerable, as categories of classes of women in domestic partnerships are being created in which some have more rights than others. 

This discrimination needs to be viewed through an intersectional lens that acknowledges that women are not all the same. We do not all have the same options or choices in life and because of factors such as race, ethnicity, culture, age, education and socio-economic circumstances we experience the effects of discrimination differently.  

The law must account for these differences to ensure substantive equality. A failure to do so will lead to continued discrimination as it will have no effect on the lived reality of the very women which the law is required to protect. 

As the relevant government departments have failed to provide legal protection to women, the obligation now falls to the court to give such protection.