Die grondwetlikheid van die uitsluiting van teenoorgestelde geslag lewensmaats van die strekwydte van die Wet op Onderhoud van Langslewende Gades 27 van 1990

Abstract

The number of people who are involved in opposite sex permanent life partnerships is drastically increasing in South Africa. However, the greater freedom such a relationship brings also entails risks, especially for the surviving partners, to demand maintenance in terms of the Maintenance of Surviving Spouses Act. The South African legal position currently determines that only heterosexual life partners that formalise their relationship by the conclusion of a civil marriage, customary marriage or the completion of a civil union, can rely on a maintenance claim in terms of the Maintenance of Surviving Spouses Act. In the light of recent legislation and case law, there are currently strong arguments against the current legal position as it may give rise to unfair discrimination against the survivor in a opposite sex permanent life partnership that cannot claim maintenance against the estate of the predeceased in terms of section 2(1) of the Maintenance of Surviving Spouses Act. The crux of the matter, however, appears to be whether section 2(1) complies with the criteria of the constitutional limitation clause seen in the light of the confined constitutional equality clause. Judicial review shows that courts regularly see, in light of the criteria set out in section 36 of the Constitution of the Republic of South Africa, the adverse effects that the nature and extent of the distinction between same sex and opposite sex permanent life partnerships has on the rights of disadvantaged persons. On the other hand, it is has been persuasively argued that the right to equality does not mean that everyone can demand equal treatment. However, there were also recent developments according to which South African courts acknowledge that persons of opposite sex permanent life partnerships can use universal partnerships as well as other remedies to give legal recognition and protection to their relationship in order to achieve a similar result as a claim in terms of section 2(1). In 2006, the South African Law Reform Commission acknowledged that parties to a permanent life partnership needed legal protection where after the Draft Domestic Partnerships Bill had emerged. The purpose of the aforementioned Draft Bill is to ensure that partners in domestic partnerships enjoy the right to equality and dignity as well as to reform family law to comply with the applicable provisions of the Bill of Rights. However, the Draft Bill has not yet been promulgated and is it unclear whether the Draft Bill will in any event be raised to legislative status. However, it appears from this research that there is no justification for the current legal position in an open and democratic society such as South Africa based on the constitutional values of human dignity, equality and freedom. Therefore, proactive action by the legislative authority at this stage is advocated in order to reconcile the principles of family law with the constitutional value of equality (and inevitably included is the constitutional value of human dignity) by means of innovative thinking, which at the same time will promote legal certainty.