ADVANCING THE RIGHTS OF HETEROSEXUAL LIFE PARTNERS IN RESPECT OF LOSS OF SUPPORT

The advent of the Constitution (the Constitution of the Republic of South Africa, 1996, hereinafter “the Constitution”), as well as a reorientation in societal values, has seen old Western traditional rules being confronted with new challenges. The era of social change has consequently underscored the need for family law reform in certain areas of the law. A key aspect of family law and one that has come under constitutional scrutiny in recent times is that of persons living together as same-sex or heterosexual life partners (Du Plessis v Road Accident Fund 2003 (11) BCLR 1220 (SCA) (Du Plessis case); Robinson v Volks NO 2004 (6) SA 288 (CC) (Volks case); Gory v Kolver (Starke Intervening) 2007 (3) BCLR 249 (CC) (Gory case); and Verheem v Road Accident Fund 2012 (2) SA 409 (GNP) (Verheem case)).

life partnerships in light of the fact that the Constitution of South Africa is underpinned by values of equality and non-discrimination.
Despite a decade of the aforementioned inequality, there seems to have been some movement made in restoring the dissimilarity of benefits afforded to same-sex life partners to the exclusion of their heterosexual counterparts. In this regard, the Supreme Court of Appeal has, of late, delivered judgments affording unmarried dependants in heterosexual life partnerships the locus standi to institute claims for loss of support arising from the wrongful death of a breadwinner (Verheem case; and in Paixão v Road Accident Fund 2012 JDR 1749 (SCA) (Paixão case)). In this regard the case of Paixão is of particular importance as the case factors in the boni mores of society by finding that a tacit agreement between heterosexual life partners establishes a contractual reciprocal duty of support that is worthy of protection (Paixão par 29). The Paixão decision therefore shows a willingness to advance South Africa's common law by affording protection to unmarried heterosexual life partnerships in line with their same-sex counterparts (Du Plessis case), as precipitated by the rights and values laid down in the Bill of Rights.

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The current legal position in South Africa and Heaton South African Family Law 251), the denial of immigration permits to a foreigner who was involved in a same-sex life partnership with a South African citizen was found to be discriminatory and unconstitutional on the grounds of sexual orientation, marital status and the right to dignity (Heaton South African Family Law 251). The Constitutional Court accordingly extended the benefit to same-sex life partners by amending section 25(5) of the Aliens Control Act (96 of 1991). The inclusion of the terms, "partner in a permanent same-sex partnership" nevertheless excluded heterosexual life partners.

The dependant's action
A claim for loss of support arising from the death of a breadwinner is recognised at common law as a "dependant's action" and such an action may be instituted by the spouse and children of a breadwinner who may have suffered financial loss as a result of the wrongdoer who caused the death of the breadwinner (South African Law Reform Commission Report (Project 118) Report on Domestic Partnerships (2006)  A "dependant's action" has, however, been judicially extended to a partner in a monogamous Muslim marriage (Amod v Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA) par 7-9 as well as Smith and Heaton 2012 THRHR 472), a widow in an African customary marriage (Sibanda v Road Accident Fund (GSJ) unreported case no 9098/07, delivered on 2009-02-03), and parties in a same-sex life partnership that have established a reciprocal duty of support towards each other (Du Plessis case par 14). Despite the aforementioned movement in acknowledging nonnuclear family units by extending such action beyond a civil marriage, the Meyer case held that a survivor of a heterosexual life partnership could not institute a dependant's action (Meyer case par 42; and Smith and Heaton 2012 THRHR 472). In the Meyer case, Ledwaba J held that "to regard any relationship which has features of a marriage, as a marriage, would have a negative effect on the administration of justice, morality, the norms and values of society" (Meyer case par 30). In addition Ledwaba J held that "in view of the couple's choice not to marry, the survivor did not enjoy the same right to maintenance and loss of support as a surviving spouse" (Meyer case par 38-40). The heterosexual life partner's action for loss of support was therefore dismissed on the basis that the parties had a choice to marry, tying in with the "choice argument" and rationale followed in the Volks case (Volks case par 56 reads "no duty exists in the context of heterosexual life partnerships ...").
In the Verheem case, the court had to decide whether a life partner should be placed in the same position as a widow in respect of a claim for loss of support. Goodey AJ held that a dependant's action would arise in instances where the parties had entered into a binding contract with the intention of being legally bound to the life partnership (Smith and Heaton 2012 THRHR 475-476). In arriving at the judgment, Goodey AJ concluded that the parties were in a life partnership, the claimant was entirely dependent on the deceased as the sole breadwinner, and that they had undertaken reciprocal duties of support in respect of each other thereby resulting in a binding contract and legally enforceable duty of support established in light of the prevailing boni mores (Verheem case par 12). The elucidation of the basis for the loss of support action in respect of a heterosexual life partner was expounded further in the more recent case of Paixão.

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The Paixão case Social tradition has brought about marriage, whilst societal change in norms and values is urging a shift from the traditional viewpoint of marriage to a more democratic viewpoint.
The dissimilarities in affording spousal benefits to same-sex life partners to the exclusion of their heterosexual counterparts, are representative of societal change in norms urging legislative reform reflecting both the doctrine of justice as well as the expectation of acknowledging all nontraditional family forms within a heterogonous society (Lind 2005 Acta Juridica 124; and Bailey-Harris "Equality or Inequality Within the Family? Ideology, Reality and the Law's Response" in Eekelaar and Nhlapo (eds) The Changing Family: Family Forms and Family Law (1998) 263).The Paixão case has managed to readdress the preferential treatment afforded to same-sex life partners, despite the "choice argument" stictu sensu also applying to same-sex life partners that choose not to marry. The Paixão case, in the absence of the legislator providing a legal framework for life partnerships, has at least managed to smooth out the indifference between same-sex and heterosexual life partners as far as a dependant's action is concerned.

1 Case summary
The salient facts in the Paixão case were that the plaintiffs in the matter, Maria Angelina Paixão (Paixão) and her daughter Michelle Orlanda Santos instituted a claim for loss of support against the defendant, the Road Accident Fund, in terms of section 17 (1) 10). The deceased however tragically died a few months before the wedding date (Paixão par 10). The deceased and the plaintiffs were accepted as a family unit by their respective friends and families and the deceased even executed a joint will with Paixão in which they nominated each other as sole and universal heirs and referred to Paixão's daughters as "our daughters" (Paixão par 9). The issue before the South Gauteng High Court was whether it was possible for an unmarried dependant in a permanent heterosexual life partnership to claim damages for loss of support from the wrongdoer who caused the death of the dependant's breadwinner (Paixão par 2).
The High Court decided there was no legally enforceable duty on the deceased to support the plaintiffs even though the deceased had promised to take care of them (Paixão par 2). The High Court held that the duty of care did not extend to unmarried cohabitants, whilst also highlighting the need to protect the "institution of marriage" (Paixão par 2). The plaintiff's claim was dismissed but leave to appeal to the Supreme Court of Appeal (SCA) was granted (Paixão par 2).

2 Findings of the Supreme Court of Appeal
The main issue in this matter was whether or not the common law should be developed to extend the dependant's action to permanent heterosexual relationships (Paixão par 1). In determining the aforesaid, the SCA had to firstly determine whether there was a legally enforceable agreement between the parties (Paixão par 18). The SCA held that the agreement between the partners could either be made expressly or tacitly and that the conduct of the parties was important when establishing whether a tacit contract was in existence (McDonald v Young 2012 (3) SA 1 (SCA) 11). The SCA found that there was compelling evidence to suggest that the parties had tacitly undertaken a reciprocal duty of support, and disagreed with the findings of the High Court in that regard (Paixão par 19). The evidence in the form of the joint will, the financial support, the acceptance of their relationship by the community, family and friends all suggested that the deceased had regarded the plaintiffs as his family. The SCA, after taking into account the boni mores of the community, concluded that the community required the common law to be developed so as to protect unmarried persons in permanent heterosexual life partnerships where a reciprocal duty of care had been established (Paixão par 30).
It was held that the importance that society places on marriage as an institution coupled with principles of equity, justice, morality and the changing times dictated that protection be extended to relationships akin to family relationships arising from a legally recognised marriage (Paixão par 36). There was no need for the court to consider the constitutionality of affording protection to married couples whilst ignoring those in a heterosexual life partnership where a duty of support arose (Paixão par 37). The court refused to extend protection only to heterosexual relationships where there was an agreement to marry as this would have precipitated an arbitrary distinction to be drawn against most other relationships where there was no such agreement (Paixão par 39). The crucial question according to the court was whether a contractual reciprocal duty of support had been established (Paixão par 40).

3 Critical matters arising from Paixão
A lack of legislative guidance afforded to heterosexual life partners in recent times has exacerbated the uncertainty facing many South Africans who appear to have been chastised by a legal system that tends to differentiate between married and unmarried relationships in terms of judicial protection. Recent court decisions which highlight the sanctity of marriage tend to ignore other appropriate relationships which have mushroomed as a result of the wave of social change that has engulfed our country ( The Paixão case provides a refreshingly different approach from earlier decisions where the courts have shied away from providing solutions to problems faced by heterosexual life partners (Volks case). Cachalia JA, in Paixão recognised the importance of the courts in developing the common law to fall in line with our evolving society as evident from the following words: "The courts have always had this duty and Section 173 of the Constitution now explicitly recognises it" (Paixão par 30).
Cachalia JA commented on the stance taken by the Constitutional Court in the Volks case, where it was held that it was not unfair to distinguish between the survivors of marriage and the survivors of heterosexual life partnerships (Paixão par 26). He pointed out that, even though the Constitutional Court stated that no reciprocal duty of support arises by operation of law in respect of heterosexual life partners, it did not exclude a duty arising out of agreement between the parties (Paixão par 26). Unlike Volks, which looked at whether a spousal benefit should also be available to the surviving heterosexual life partner, Paixão focused on placing the partner in the same position in respect of support, that they would have been in had the deceased who owed a legally enforceable duty to maintain, not been killed. A criticism of the Volks case is that the court failed to see the importance of the Constitution in analysing and developing the common-law duty of support. The Constitutional Court's tapered focus on marital duty as compared to a "graded system" of support obligations favouring a diverse family system ignores the central fibre of transformation and diversity in an ever-changing social climate ( Paixão has highlighted the need for the life partner to show more than that they were in a relationship when proving that a concomitant obligation existed. An important requirement for any successful claim by a dependant is proof that the partnership had similar characteristics to a marriage. Even in the absence of an agreement to marry, demonstrating a reciprocal duty of support would be crucial to proving that a life partnership existed. It is crucial for the dependant to prove that a contractual duty existed by providing the necessary evidence. The effect is that courts are likely to be inundated with similar loss of support claims which at times can prove complex and timeconsuming when finalising such matters. Despite recognising the importance of marriage within a family unit setting, Paixão looked at the realities facing some South Africans who are unable to marry because of "social, cultural or financial reasons" (Bekker and van Niekerk 2009 South African Public Law 220-222; see also Lind 2005 Acta Juridica 108 and 119; Schäfer 2006 SALJ 627-633; Wood-Bodley 2008 SALJ 52-53;2008 SALJ 259-269;and Smith 2010 PELJ 28-31 in respect of the "homophobia" argument and the choice argument). Despite limited legal protection for heterosexual life partners in recent times, the extension of a claim based on loss of support to heterosexual life partners, as in the case of Paixão, is progressive. It is important to note that, despite the Constitutional Court ruling in Volks that no reciprocal duty of support exists between life partners, it did not preclude such a duty being fixed by agreement. It was this very aspect that the court in Paixão relied upon when overcoming this so called "barrier" to life partners created in Volks. The court could have decided to blindly follow the decision in Volks but it chose not to do so. The progressive approach could also have been precipitated by the difference in facts of the two cases in that Paixão was concerned with the common-law dependant's action in third-party claims as compared to spousal benefits clearly outlined in Volks. The effect of Paixão is that anyone who can prove that a legally enforceable duty of support existed between the parties, will be entitled to claim for damages, in respect of loss of support, against a third party who wrongfully caused the death of the life partner.

Conclusion
In the absence of a legislative framework regulating unmarried cohabitation, the Paixão case provides legal guidance to heterosexual life partners in loss of support claims where a legally enforceable duty of care existed between them. The judgment also has far-reaching consequences in that loss of support actions can extend beyond the ambit of family law. Within the sphere of family law, the case provides legal guidance to life partners in a heterosexual relationship even if the parties did not intend to marry. The case reinforces the duty of our courts to develop the common law to accord with principles of justice. Paixão shows a willingness on the part of our courts to apply each case on its merits, taking cognisance of the dynamics of different family relationships and situations within a progressive environment.