Volks NO v Robinson and Others

Mrs Robinson and the late Mr Shandling lived together in a permanent, monogamous life partnership from 1985 until Mr Shandling’s death in November 2001. They never married, though there was no legal impediment. For the last twelve years they shared a flat in Cape Town; Mr Shandling financially supported Mrs Robinson, paid her household expenses, listed her as a dependant on his medical aid, and she nursed him through prolonged illness. In his will he bequeathed specific assets (including a car, the contents of their flat and R100 000) to Mrs Robinson, but left the residue of his estate to his three children from a prior marriage. The executor of the estate, Mr Volks, rejected Mrs Robinson’s claim for maintenance under the Maintenance of Surviving Spouses Act 27 of 1990 on the basis that she was not a “surviving spouse” as defined in section 1 of the Act. Mrs Robinson and the Women’s Legal Centre Trust challenged the Act’s constitutionality in the High Court, which declared the definition of “survivor” unconstitutional and read in words to include surviving partners of permanent life partnerships. The executor appealed to the Constitutional Court against that order.

• Whether the Maintenance of Surviving Spouses Act 27 of 1990 is capable of being interpreted to extend maintenance benefits to surviving partners of permanent life partnerships.
• Whether the exclusion of surviving partners of permanent life partnerships from the definition of “survivor” in section 1 of the Act constitutes unfair discrimination on the ground of marital status in contravention of section 9(3) of the Constitution.
• Whether the exclusion infringes the right to dignity guaranteed by section 10 of the Constitution.
• Whether the High Court’s remedy of reading in definitions of “survivor”, “spouse” and “marriage” should be confirmed.
• Whether the amicus curiae’s additional evidence on the vulnerability of women in cohabitation relationships should be admitted under Rule 31.

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

The Maintenance of Surviving Spouses Act is structured around marriage and is incapable of being interpreted to include permanent life partnerships without doing violence to its text. Differentiation between surviving spouses and surviving unmarried life partners on the ground of marital status is not unfair discrimination under section 9(3) of the Constitution because marriage creates a reciprocal duty of support by operation of law that continues beyond death through the deceased’s estate, whereas unmarried cohabitants are not subject to such a duty during their lifetimes, and the Constitution does not require its posthumous imposition. The right to dignity under section 10 is not infringed by withholding a marriage-based maintenance benefit from unmarried partners, as the distinction reflects the legal consequences of marriage rather than a denial of equal moral worth.

The court expressed concern about the economic vulnerability of women in cohabitation relationships, particularly poor and illiterate women, but observed that this vulnerability is caused by the absence of legal duties of support during the lifetime of the relationship and is best remedied by legislative regulation rather than by extending posthumous maintenance under the Act. The court noted that the existence and consequences of permanent life partnerships are difficult to determine and require legislative clarity. It also remarked that it was unfortunate the appellant withdrew the equality challenge at a late stage and that the state respondents intervened only after initially abiding the High Court order.

The judgment is a leading authority on the constitutional distinction between marriage and permanent life partnerships. It establishes that legislative schemes conferring benefits exclusively on surviving spouses do not necessarily amount to unfair discrimination on the ground of marital status, because marriage carries unique legal obligations that arise by operation of law and extend beyond death. The case affirms the constitutional recognition of marriage under section 15(3)(a)(i) of the Constitution and underscores that reform of domestic partnerships is primarily a legislative function. It is frequently cited in equality jurisprudence concerning differentiated treatment based on marital status and in debates on the legal protection of cohabitees, while also highlighting that the vulnerability of women in cohabitation relationships requires broader legislative and social intervention.