Common law marriage does not exist in South Africa

By Anton Katz

There is, in South Africa, no such thing as a common law marriage. Common law wives and husbands do not exist.

A Cape Town attorney, Archie Shandling, married Edith in 1958. Edith died in 1981. Ethel Robinson’s husband died during a similar period. Mrs Robinson entered into a permanent life partnership with Mr Shandling, which lasted 16 years from 1985 until his death in 2001. They did not marry and no children were born of their relationship. But they had jointly occupied a flat in Cape Town on a continuous basis from early 1989 until Mr Shandling’s death. Ethel remained in occupation of the flat until the end of December 2002.

To a large extent Mr Shandling, while he was alive, supported Ethel financially. He gave her a fair sum of money every month to cover household necessities and would deposit money into her account whenever she needed it. He also provided her with petrol money from his law firm’s account and paid for her car maintenance. She was accepted as a dependant on his medical aid scheme. During the relationship she worked intermittently as a freelance journalist and artist.

This employment brought in some income which she used on general living expenses, gifts for Archie and personal expenses. She also worked on a voluntary basis at Fine Music Radio as a newsreader, programme compiler and presenter. Once a year, Archie would travel to the United States to visit his three major children and grandchildren and on one occasion she accompanied him. Whenever there were social functions at his law firm or at the radio station they would accompany each other. They were accepted as a couple and had many mutual friends.

In Mr Shandling’s will he bequeathed to Ethel a motor vehicle, the contents of the flat they had occupied, a sum of money and permission to remain in the home for nine months. The residue of his estate would devolve upon his three adult children living in the US.

The Maintenance of Surviving Spouses Act of 1990 gives surviving spouses the right to claim maintenance from the estates of their deceased spouses. Mrs Robinson claimed maintenance from Mr Shandling’s estate as a surviving spouse. The estate’s executor rejected her claim because she was not Archie’s spouse. Ethel felt discriminated against because her relationship with Archie (common law wife as she described it) was not properly recognised. Ethel then approached the High Court arguing that her right to dignity and her right to equality and not to be discriminated against on the basis of marital status were violated. Section 9(3) of the Constitution states: “(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” Ethel contended that the survivor of a stable permanent relationship between two persons of the opposite sex who had not been married to each other during their lifetime, but nevertheless lived a life akin to that of husband and wife, should be afforded the same protection that is afforded to the survivor of a marriage. Accordingly, she asserted, she should be entitled to maintenance from Archie’s estate.

The key question for consideration by the Court was whether the protection which the Maintenance of Surviving Spouses Act affords to a “survivor” should be withheld from survivors of permanent life partnerships. The High Court in Cape Town (Davis J) found that the exclusion of the surviving partner of a permanent life partnership from the ambit of the Act was unconstitutional because it unfairly discriminated against those couples who chose not to marry. The Constitutional Court (in a 7-3 decision) disagreed with Davis J.

The Constitutional Court held that marriage and family are important social institutions in South African society. Marriage has a central and special place, and forms one of the important bases for family life in our society. Both the Constitution and international law impose an obligation on South Africa to protect the institution of marriage. Once it was accepted that marriage is a constitutionally recognised institution in South Africa’s constitutional democracy, it followed that the law may legitimately afford protection to marriage, and married persons, which it does not accord to unmarried people.

The Constitutional Court concluded: “Mrs Robinson never married the late Mr Shandling. There is a fundamental difference between her position and spouses or survivors who are predeceased by their husbands. Her relationship with Mr Shandling was one in which each was free to continue or not, and from which each was free to withdraw at will, without obligation and without legal or other formalities. There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouses’ rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married.” The Maintenance Act was held not to be unconstitutional because of its finding that 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, no duty of support arises by operation of law in the case of unmarried cohabitants.

The majority decision of the Constitutional Court in Volks v Robinson has been widely criticised as being out of step with modern family arrangements. However, the decision is the law for now. Until such time as parliament enacts new laws recognising permanent life partnerships those who regard themselves as common law wives and/or husbands should be aware that their choice to not marry has legal consequences, just like the choice to marry does.