WHEN I SAID I DO NOT ANYMORE

On 31 December 2021, the Constitutional Court delivered judgment which I believe may have unintended consequences for couples that are, or were, engaged to be married. The facts of the matter are straightforward and in reading the judgment, what stood out for me relates to choosing between permanent life partnership and/or marriage.

In my mind, a permanent life partnership takes place when a couple cannot, or deliberately decide to not, get married for whatever reason. Instead, such a couple would then live together outside an officially recognised marriage set up. For this matter, the couple met in 2014 and in 2015 the deceased proposed to the female applicant. In 2016 and two months before lobola negotiations were to commence, the applicant's fiancé passed away.

As a result of the passing of her fiancé, the applicant lodged claims against the deceased's estate for maintenance and inheritance. The claims were based on permanent life partnership. The executor of the deceased's estate rejected the claims on the basis that legislation did not enable the applicant to lodge such claims. As a result, the applicant challenged the constitutionality of such legislation. In the High Court, the applicant's constitutional challenge in relation to legislation governing maintenance of a surviving spouse was dismissed. However, her constitutional challenge in relation to legislation governing claiming from an estate was successful. It is as a result of the High Court's orders that the Constitutional Court heard and delivered judgment.

In the Constitutional Court, the applicant argued that the exclusion of permanent heterosexual life partners from claiming maintenance from the deceased estate "unjustifiably limits her right not to be unfairly discriminated against on the ground of marital status and her right to dignity." I pause to state that there reason there is a difference between permanent life partnership and marriage is because marriage was only available for some, and so the only option was a permanent life partnership.

The applicant was well on her way to get married. Being on her way to get married, but unfortunately the fiancé having passed, it was not a question of choosing or not choosing to get married. It was a matter of the couple having elected to get married, and so it cannot be said that there was a permanent life partnership. To illustrate my point, I ask this - does it mean that each and every fiancé or fiancée may claim permanent life partnership where one of parties to the engagement passes away, but before the intended marriage?

In Volks N.O. v Robinson [2005] ZACC 2, the Constitutional Court previously held that exclusion of permanent heterosexual life partners from the benefit afforded by legislation to those that were married for maintenance from a deceased's estate is not unfair. After having looked at the Volks judgment, Madlanga - for the majority in the Bwanya matter - held that "I am convinced that Volks was wrongly decided."

In arriving at a decision and discussing why Volks was wrongly decided, Madlanga discussed the "choice argument" and benefits of marriage flowing by operation of the law. Regarding benefits of marriage, Madlanga made the point that "...permanent life partnerships are very much akin to marriages. I am not unmindful of the differences, chief amongst which are the public solemnisation of a marriage and the formalities about termination."

I pause to state that I fully agree that permanent life partners deserve protection, but my issue is in relation to couples who benefit from choosing to get married, but did not conclude the marriage because of death of one of the parties to the engagement. The Constitutional Court's reasoning that permanent life partnership deserve protection, which I agree with, is that "the duty of support arose from an agreement..." What I am wondering is this - do couples that are engaged to get married owe each other a duty of support? Asked differently, when does the duty of support commence? Another question to be asked - should an engaged couple elect to no longer get married, and none of them die, may one of the parties go to court to claim maintenance on the basis of duty of support?