Recent developments in the Law
By WILLEM PRETORIUS
COUNCILLOR: GAUTENG LAW COUNCIL
EDITION 02/2004 JUNE 2004
A seminar on Family Law was held on 4 May 2004 at Gallagher Estate, various speakers participated and Beth Goldblatt gave a very interesting presentation on the Recognition of Domestic Partnerships, Recent Development in the Law.
At present, marriage (recognized in terms of the Common Law) is confined to heterosexual couples and there is extremely limited protection for domestic partners under our family laws. These partnerships are widespread in our country and arise out of a specific history and social context. They reflect many of the unequal gender relations prevalent elsewhere in our society. Legal protection for the parties to these relationships operates particularly harshly on the woman partners who are usually left with no property of support when the relationship ends. During the last ten years, theConstitutional Court has provided protection for a number of different family forms that have fallen outside of the traditional marriage relationship. It is soon to consider the rights of domestic partners. The South African Law Reform Commission (SALRC) is currently considering new laws recognizing regulating domestic partnerships. It thus seems likely that change in this area of family law is imminent and inevitable.
With regards to domestic partnerships there are a number of options that cover both same sex and opposite sex partnerships:
- Create a registered partnership law:
Similar but slightly less, than marriage that is the default property regime is an accrual system and maintenance rights are not as absolute as in marriage (not automatic duty support). Cannot be married as well. Cannot register multiple domestic partnerships.
- Unregistered partnerships:
Here, the law recognizes partnerships by ascribing a certain status to people who conduct themselves in a particular way rather than by requiring them to register their relationship. There are two models of this type of partnership:
2.1 De facto:
In this model the relationship is recognized during its existence judicial discretion to distribute property on dissolution. Limited maintenance (only where kids or where partner’s earning capacity was compromised by the relationship).
2.2 Ex post facto:
In this model, the law can only intervene after the relationship ends. Again, the Courts can distribute property equitably and order maintenance in certain instances. This option also applies to care partnerships (non-conjugal partnerships such as between family members).
Karin Folkes-Jones SC gave a very interesting talk at the seminar on Common Law Relationships as well as Customary and Islamic marriages in South Africa.
Common Law Relationships are relationships between heterosexual couples who are able to marry, but choose not to, as well as same sex partners who are unable to marry because the law precludes these types of marriages.
There is sometimes referred to Common Law Relationships as Domestic Relationships.
Couples in Common Law Relationship often find themselves at the end of a relationship in a situation where they have no legal rights against one another, unlike their counterparts who’ve entered into a legal marriage relationship.
There are three types of remedies available to a party at the end of a relationship namely:
- Contractual remedies;
- Propriety Estoppel;
- Unjustified Enrichment.
It would seem inevitable that due to unfair discrimination same sex marriages will in due course be sanctioned. On the other hand non-married heterosexual couples must enter into cohabitation agreements to protect their rights.
The Recognition of Customary Marriages Act No 120 of 1998 has regulated the rights if a wife, named by customary union and her maintenance and property rights are now largely protected by legislation.
The same cannot currently be said of Islamic Marriages where legislation has long been under consideration, but little real progress appears to have been made.