Richard Gordon Volks NO v Ethel Robinson

Mrs Robinson and Mr Shandling (deceased) lived together in a permanent life partnership from 1985 until his death in 2001, lasting 16 years. They never married although there was no legal impediment. Mr Shandling supported Mrs Robinson financially during their relationship. He bequeathed approximately one-third of his estate to her in his will. Mrs Robinson applied for maintenance from the deceased estate under the Maintenance of Surviving Spouses Act 27 of 1990 (the Act). The executor (Mr Volks) rejected her claim on the basis that she did not fall within the definition of "survivor" in section 1 of the Act, which was defined as "the surviving spouse in a marriage dissolved by death". The High Court found the exclusion of survivors of permanent life partnerships from the Act to be unconstitutional and discriminatory on the ground of marital status.

• Whether the exclusion of surviving partners of permanent life partnerships from the definition of 'survivor' in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 constitutes unfair discrimination on the ground of marital status in violation of section 9(3) of the Constitution
• Whether such exclusion violates the right to dignity under section 10 of the Constitution
• What remedy should be granted if the Act is found to be unconstitutional
• Whether the Act can be interpreted to include survivors of permanent life partnerships

Appeal upheld. The order of the High Court declaring section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 inconsistent with the Constitution was not confirmed. No order as to costs.

It does not constitute unfair discrimination on the ground of marital status to limit the right to claim maintenance from a deceased estate to surviving spouses, and not to extend this right to survivors of permanent life partnerships. The discrimination, while based on marital status, is not unfair because: (1) Marriage is a constitutionally recognized institution with invariable legal consequences that arise by operation of law, including a reciprocal duty of support; (2) The Maintenance of Surviving Spouses Act transfers an existing legal duty of support from the deceased spouse to the deceased estate - it does not create a new posthumous duty where none existed during the deceased's lifetime; (3) It is not unfair to distinguish between relationships where a legal duty of support arose by operation of law during the deceased's lifetime (marriage) and relationships where no such duty arose (cohabitation); (4) There are fundamental differences between marriage (where rights and obligations are largely fixed by law) and cohabitation (where the parties are free to continue or withdraw at will without legal obligation); (5) To impose a posthumous duty to maintain where none existed during the deceased's lifetime would be incongruous, unfair, irrational and untenable; (6) The exclusion does not impair the fundamental dignity of cohabitants in a manner that renders the discrimination unfair.

Skweyiya J noted that: (1) Structural dependence of women in relationships is a reality but the plight of vulnerable women in cohabitation is not caused by the under-inclusiveness of the Act but by the absence of any law regulating such relationships during the parties' lifetimes; (2) Legislative intervention to regulate cohabitation relationships and protect vulnerable partners during the subsistence of such relationships would be appropriate; (3) The evidence sought to be introduced by the amicus curiae regarding vulnerability of women in cohabitation was inadmissible under Rule 31 as it was not incontrovertible or capable of easy verification. Mokgoro and O'Regan JJ (dissenting) observed that: (1) The prohibition on discrimination on the ground of marital status was adopted to protect families established outside civilly recognized marriages; (2) Marriage is evolving legally to address gender inequalities; (3) Many people cohabit for various reasons and cohabitation plays an important social role; (4) Recent legislation has increasingly recognized domestic partnerships; (5) The functional approach to family law is gaining ground over the definitional approach; (6) In the absence of comprehensive legal regulation of cohabitation, excluding needy survivors from maintenance claims constitutes unfair discrimination; (7) The legislature has wide discretion in how to regulate cohabitation but cannot ignore such relationships without violating the Constitution; (8) The order should be carefully crafted and suspended to allow legislative intervention. Sachs J (dissenting) observed that: (1) Freedom of choice and equality must be balanced in intimate relationships; (2) South African family demographics differ from "first world" societies; (3) Patriarchy and poverty significantly affect family relationships; (4) Family law should adopt a functional rather than purely definitional approach; (5) Recent legislation shows increasing recognition of domestic partnerships; (6) Marriage should be privileged but not necessarily exclusive; (7) The exclusivity principle operates unfairly where parties committed to mutual support or where dependency was created; (8) The institution of marriage is not undermined by limited recognition of certain life partnerships; (9) Remedial intervention should not pre-empt comprehensive legislative reform.

This case represents a significant statement by the Constitutional Court on the distinction between marriage and cohabitation for purposes of maintenance claims. The majority held that it is not constitutionally required to extend spousal maintenance obligations to cohabitation relationships where no legal duty of support existed during the parties' lifetimes. The judgment confirms that: (1) Marriage as an institution receives constitutional recognition and may be legitimately privileged in appropriate circumstances; (2) The prohibition on unfair discrimination on the ground of marital status does not automatically require identical treatment of all intimate relationships; (3) The law may distinguish between relationships where legal obligations arise by operation of law (marriage) and those where they do not (cohabitation); (4) Context is crucial in determining whether discrimination on the ground of marital status is unfair; (5) The functional approach to family relationships advocated by law reform bodies and some scholars was not adopted by the majority. The dissenting judgments identified a constitutional imperative for legislative intervention to regulate cohabitation relationships and protect vulnerable surviving partners. The case highlights ongoing tension between freedom of choice, protection of marriage, and substantive equality in South African family law. It leaves to the legislature the question of whether and how to regulate the consequences of cohabitation relationships upon termination by death.