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2 GENERAL
The general rule of our law is that none of the ex lege consequences of
marriage automatically ensue if a couple lives together without getting
married. This is the case regardless of whether or not the life partners are
legally permitted to marry each other. This rule is set out and explained
with examples in the first part of the first paragraph under this heading on
page 227 of the textbook. In the second part of that paragraph it is stated
that legislation and court decisions have, however, extended some of the
consequences of marriage to life partnerships. This aspect is further
elucidated under the next two headings.
3 RECOGNITION OF HETEROSEXUAL LIFE PARTNERSHIPS
Firstly, you must know that various Acts, such as the Insolvency Act 24 of
1936, the Compensation for Occupational Injuries and Diseases Act 130 of
1993, the Estate Duty Act 45 of 1955, the Pension Funds Act 24 of 1956,
the Income Tax Act 58 of 1962, the Maintenance Act 99 of 1998, the
Domestic Violence Act 116 of 1998 and the Rental Housing Act 50 of
1999 treat heterosexual life partners and spouses alike. All these Acts are
discussed on pages 229 to 230 of the textbook. You need not study the
detail and numbers or dates of these Acts. Just note that most of these
Acts extend the same protection to heterosexual and same-sex life
partners.
Ignore the discussion of Robinson v Volks in your textbook on page 230, and
only read the following section on this case:
In this case, the Cape provincial division of the high court initially
declared section 1 of the Maintenance of Surviving Spouses Act 27 of 1990
unconstitutional to the extent that it fails to include permanent life
partners within the ambit of the Act. The decision of the Cape provincial
division of the high court was, however, overturned by the constitutional
court in Volks v Robinson 2005 (5) BCLR 446 (CC). The majority of the
judges of the constitutional court found that differentiating between a
spouse and a heterosexual life partner by excluding the life partner from a
maintenance claim against the estate of his or her deceased life partner in
circumstances where a spouse would have had such a claim in terms of the
Maintenance of Surviving Spouses Act 27 of 1990 does not constitute
unfair discrimination. Nor does it violate the surviving life partner's right
to dignity. The majority pointed out that although the Bill of Rights does
not contain the right to marry and to found a family, section 15(3)(a)(i)
recognises marriage as an institution. Also, the constitutional court has
recognised that marriage and family are important social institutions in
our society: Dawood v Minister of Home Affairs; Shalabi v Minister of Home
Affairs; Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (CC), 2000
(3) SA 936 (CC) pars [30] and [31]; Du Toit v Minister for Welfare and
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