Volks NO v Robinson

Mrs Robinson and the late Mr Shandling were in a permanent life partnership for 16 years from 1985 until his death in 2001. They never married although there was no legal impediment to marriage. They lived together continuously from 1989. Mr Shandling supported Mrs Robinson financially during their relationship, paying her R5000 per month for household expenses and providing for her needs. She worked intermittently as a freelance journalist and artist. She nursed him through his bipolar disorder and final illness. In his will, Mr Shandling left Mrs Robinson approximately one-third of his estate (a vehicle, contents of their flat, and R100,000). The residue was left to his three children from a previous marriage. Mrs Robinson applied to claim maintenance from the deceased estate under the Maintenance of Surviving Spouses Act 27 of 1990, which provides that a "survivor" (defined as "the surviving spouse in a marriage dissolved by death") can claim maintenance from the deceased spouse's estate. The executor (Mr Volks) rejected her claim on the basis that she was not a "spouse" as she had not been married to the deceased.

• Whether the exclusion of survivors of permanent heterosexual life partnerships from the definition of 'survivor' in the Maintenance of Surviving Spouses Act 27 of 1990 constitutes unfair discrimination on the ground of marital status contrary to section 9(3) of the Constitution
• Whether the Act can be interpreted to include permanent life partners within the definition of 'survivor'
• If there is unfair discrimination, what is the appropriate remedy
• The relevance of choice (not to marry) in assessing fairness of discrimination
• The constitutional recognition and protection of marriage versus the protection of other family forms

The appeal was upheld by a majority of 8-3. 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. Mrs Robinson's application for maintenance from the deceased estate was dismissed. No order as to costs was made.

Marriage is a constitutionally recognized institution to which the law attaches specific legal consequences by operation of law, including a reciprocal duty of support between spouses. The Maintenance of Surviving Spouses Act extends this duty beyond the death of one spouse. Where no legal duty of support arose by operation of law during the lifetime of unmarried cohabitants, it is not unfair discrimination on the ground of marital status to decline to impose such a duty posthumously on the deceased's estate. The differentiation between married spouses and unmarried cohabitants, in the specific context of posthumous maintenance claims, reflects the fundamental legal difference between relationships where obligations arise by operation of law and those where they do not, and does not constitute unfair discrimination within the meaning of section 9(3) of the Constitution.

Skweyiya J acknowledged that there may be strong arguments that partners in certain circumstances ought to be obliged to maintain each other during their lifetimes, and that comprehensive legislative regulation of cohabitation relationships may be appropriate, but stated this was a matter for the legislature. Ngcobo J noted that different considerations might apply if the deceased had died intestate. Sachs J (dissenting) observed that problems of proof regarding the existence and nature of permanent life partnerships are not insuperable, and outlined factors that could be used to establish such relationships. He noted that the exclusivity principle might be unfair in at least two circumstances: (1) where parties freely committed to mutual support either expressly or tacitly, and (2) where the relationship produced dependency for the more vulnerable partner. Mokgoro and O'Regan JJ (dissenting) noted that the law has tended historically to privilege families founded on marriages recognized by common law, and that this has begun to change. They emphasized that marriage is not merely "a piece of paper" but also noted that cohabitation relationships can create similar patterns of dependence and vulnerability. All judgments acknowledged the ongoing work of the South African Law Reform Commission on the regulation of domestic partnerships.

This case represents a significant decision on the constitutional protection of marriage versus other family forms. It establishes that: (1) While the Constitution prohibits unfair discrimination on the ground of marital status, this does not require that all legal consequences of marriage be extended to unmarried cohabitants; (2) The law may legitimately distinguish between married and unmarried persons where marriage creates specific legal obligations by operation of law; (3) It is not unfair discrimination to limit certain benefits (like posthumous maintenance) to relationships where corresponding legal duties existed during the parties' lifetimes; (4) The constitutional recognition of marriage as an institution permits the law to accord it special protection in appropriate circumstances. The case is also significant for its extensive discussion of the competing values of freedom of choice and equality in intimate relationships, and for highlighting the difference between matrimonial law and the broader field of family law. The dissenting judgments by Sachs J and by Mokgoro and O'Regan JJ articulated an important alternative approach based on functional analysis of family relationships and the remedial purposes of maintenance legislation. The case has been both criticized and defended in academic commentary. It was decided before the Civil Union Act 17 of 2006 extended marriage to same-sex couples, and before subsequent developments in the recognition of various forms of domestic partnerships. The decision illustrates the Court's reluctance to expand legal obligations through judicial interpretation where Parliament has not done so through legislation, particularly in areas requiring comprehensive law reform.