Unmarried ‘survivor’ not entitled to maintenance from the estate of her deceased partner

In the case of Richard Gordon Volks NO v Ethel Robinson and Others, the Constitutional Court heard an application concerning a woman who wanted to be paid maintenance from her unmarried partner’s estate.

Mrs Robinson was in a permanent heterosexual life partnership with Mr Shandling from 1985 until his death in 2001. They did not marry although there was no legal obstacle to marriage. She submitted a maintenance claim against the estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990 (the Act). The executor of the estate, Mr Volks, refused her claim because she was not a “survivor” entitled to maintenance in terms of the Act. As a result, she launched proceedings in the High Court and successfully challenged the definition of the term “survivor” in the Act. She was assisted in this application by the Women’s Legal Centre Trust (the Trust), which was admitted as the second applicant in the proceedings. The claim was upheld because her relationship with Mr Shandling was a “monogamous permanent partnership” substantially similar to a marriage. The exclusion of permanent life partners was found to be in violation of the rights to equality and dignity and therefore unconstitutional.

The executor appealed the decision and relief granted by the High Court, while Mrs Robinson and the Trust sought confirmation of the relief.

The Constitutional Court found that the decision of the High Court was wrong. This was its reasoning:
• The purpose of the Act, viewed in light of its history, is to extend an invariable consequence of marriage beyond the death of one of the spouses. Parties to a marriage are legally obliged to maintain each other during its subsistence.
• The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, the law imposes no such duty upon unmarried persons.
• To extend the provisions of the Act to the estate of a deceased person who was not obliged during his lifetime to maintain his partner would amount to imposing a duty after death where none existed during his lifetime. Thus the differentiation in relation to the provision of maintenance in terms of the Act does not amount to unfair discrimination; neither does it violate the dignity of surviving partners of life partnerships. The High Court order is not confirmed, and the appeal is upheld.

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