A change in the law — Common law husbands and wives do exist

By Anton Katz SC

In April 2018, the Cape Jewish Chronicle published a piece, Common law marriage does not exist in South Africa in which I wrote, “There is, in South Africa, no such thing as a common law marriage. Common law wives and husbands do not exist.”

My analysis was that no matter how long two people lived together as a committed long-term couple they would not in the eyes of the law be regarded as a “married couple.” What I wrote in 2018 is (today) not the correct legal position in South Africa. Did I get the law wrong? Was the law amended? If so, how was it changed? Did parliament pass new legislation? What is the actual position and how did it come about?

The Constitution, the supreme law in South Africa protects the equality of all persons. Therefore, no law may discriminate against anyone on one of a series of listed grounds. The listed grounds are race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

There are many laws which govern intimate family relationships and their consequences. Marriage, divorce, maintenance, pension, inheritance, parents’ rights and obligations to children, taxes, adoption, surrogacy and even immigration are just a few examples. In Volks v Robinson*, the Constitutional Court in 2005 considered the important question — ‘May the law treat and deal with married couples differently to couples who choose not to marry?’ The facts in Volks were: Mrs Robinson had lived as a life partner with Mr Shandling for many years. They lived and conducted themselves like a married couple. But they did not enter into a formal marriage. After Mr Shandling died, Mrs Robinson did not receive the legal benefits and rights she would have had if they had been married. She approached the courts, claiming that she was unconstitutionally and unfairly discriminated against on the basis of their marital status (that is not being married). The majority (7-3) of the Constitutional Court on 21 February 2005 effectively held that Mrs Robinson was not unfairly discriminated against. The couple had made a choice not to get married. That choice had consequences. The election of the couple meant that both the rights and obligations of marriage did not apply to them. Therefore, there was no unfair discrimination; Mrs Robinson did not succeed in her constitutional challenge. And so non-married life couples could lawfully be treated differently to married couples.

Until the saga of Ms Jane Banywa and Mr Tony Ruch. Ms Bwanya, who is originally from Zimbabwe, and Mr Ruch, were involved in a relationship that comprised most, if not all, characteristics of a marriage. They met and entered into a romantic relationship in 2014. Later that year Mr Ruch asked Ms Bwanya to move in with him on a permanent basis. Ms Bwanya obliged. From then on, they split their time between Mr Ruch’s Camps Bay and Mouille Point properties. Ms Bwanya retained her accommodation at the home in Camps Bay where she was employed as a domestic worker. Ms Bwanya’s and Mr Ruch’s friends were aware of the relationship. The pair used to accompany each other to various social gatherings. Mr Ruch introduced Ms Bwanya as his wife to his friends. They often hugged and kissed in the presence of other people. Mr Ruch referred to Ms Bwanya’s brother as his brother-in-law. By October 2015 the partners were contemplating “cementing the relationship with a baby.” Mr Ruch bought all the groceries and other household necessities, and paid for all other household expenses; while Ms Bwanya provided him with love, care, emotional support and companionship. Mr Ruch assisted Ms Bwanya in her efforts to obtain a driver’s licence, and paid for her driving lessons. He intended to buy her a car which she was also to use in a cleaning business they planned to start together. In November 2015 Mr Ruch proposed marriage to Ms Bwanya, and she accepted. Preparations to travel to Zimbabwe began so that lobola negotiations could commence and Mr Ruch could meet Ms Bwanya’s family. These preparations entailed selling the Mouille Point property. The proceeds were to be used to pay lobola and purchase a vehicle for the trip to Zimbabwe. The plan was for the pair to get married after the trip. On 23 April 2016, two months before the scheduled journey, Mr Ruch passed away. In his will he had nominated his mother as the sole heir to his estate. However, his mother had predeceased him. She had died in 2013.

Ms Bwanya lodged two claims against Mr Ruch’s estate in terms of the Administration of Estates Act. They were for maintenance in terms of the Maintenance of Surviving Spouses Act and for inheritance in terms of the Intestate Succession Act. She based the claims on the fact that her permanent life partnership with Mr Ruch was akin to a marriage and that they had undertaken reciprocal duties of support towards each other.

The executor of Mr Ruch’s estate rejected both claims on the basis that the couple had elected not to get married, and under the two Acts the automatic benefits of marriage did not apply, and so, Ms Bwanya did not qualify for the claimed benefits. Ms Banywa challenged the constitutionality of the two Acts in court. The basis of her challenge was that the exclusions under the two Acts violated Ms Bwanya’s constitutional rights to equality and dignity.

But she had a problem. Volks v Robinson just ten years before had decided that she had no claim. And that judgment was by the highest South African court, the apex court, the Constitutional Court.

Academic and other commentators had over time consistently and heavily criticised the reasoning in Volks. Volks didn’t take into account the lived reality of hundreds of thousands of women, so the argument went. And interestingly, all ten justices who decided Volks had retired and there were ten ‘new’ judges who had to decide Ms Bwanya’s case.

In a 6 — 4 judgment of the Constitutional Court dated 31 December 2021 (sixteen years after Volks) Ms Bwanya won her challenge. The majority of the Constitutional Court was careful to say that it was not overruling Volks. The majority was convinced that Volks was wrongly decided. It accepted that “marriage and family are important social institutions in our society.” But the reality is that more than 3.2 million South Africans are cohabiting outside of marriage. Marriage comes in many shapes and sizes; and all categories of families are deserving of protection. Dealing with intimate family relationships and the notion of choice [whether to get married or not] it stated, “And life is not so mechanical that one may ask why, instead of walking away, women stay in permanent life partnerships if — in some of them — it is men that do not want to get married. Much as it may not take much for some to walk away, that is not necessarily how life works. A woman may have to be content with what in essence is the man’s choice.” And thus, the Bwanya majority effectively overturned the Volks rejection of common law marriages.

The law has now been developed by the Constitutional Court to mean that the concept of spouse includes a person in a permanent life partnership in which the partners undertook reciprocal duties of support.

* Disclaimer: I was counsel for Mr Volks, the executor of Mr Shandling’s estate.

Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.

• Published in the PDF edition of the February 2022 issue – Click here to get it.

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