ADVANCING THE RIGHTS OF HETEROSEXUAL LIFE PARTNERS IN RESPECT OF LOSS OF SUPPORT Paixão v Road Accident Fund 2012 JDR 1749 (SCA)

Abstract

The advent of 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. Life partnerships have none of the ex lege consequences of a civil marriage, and as such the consequences of a legally recognised marriage do not generally apply to life partners. A range of statutes have, however, given rise to specific spousal benefits being awarded to life partnerships , whilst, in the absence of same-sex partners being able to legalise their relationships, a number of ad hoc judgments have extended certain additional consequences of a civil marriage to same-sex life partners. The disparity in extending spousal benefits to same-sex life partners, to the exclusion of heterosexual life partners, raises the question of the tenability of the present legal position of 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. 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. 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, as precipitated by the rights and values laid down in the Bill of Rights.