A Duty of Support for All South African Unmarried Intimate Partners Part I

32 Pages Posted: 26 Apr 2019

See all articles by Elsje Bonthuys

Elsje Bonthuys

University of the Witwatersrand

Date Written: October 19, 2018

Abstract

The democratic Constitutional dispensation has led to the gradual extension of spousal duties of support to unmarried couples who hitherto could not legally claim support from their partners or from third parties who had unlawfully caused the death of their partners. The new recipients of rights to support can be divided into three groups: wives in Muslim religious marriages, partners in same-sex intimate relationships and unmarried opposite sex cohabitants whose relationships closely resemble civil marriage in both form and function. However, certain distinctive features of customary marriage, the continuing consequences of apartheid policies for African families and certain distinctive patrilineal features of traditional African families have largely excluded African women – who constitute the largest and most economically vulnerable group of women – from the benefits of these developments. Part one of this two-part article analyses the trajectory of the developing right to support intimate partnerships which appears to be based either on marriage (in the case of Muslim marriages) or similarity to marriage, including monogamy and permanent co-residence in the case of same-sex and opposite sex partners. This leaves no room to extend rights to unmarried intimate partners whose relationships do not fit the template of civil marriage, and, in particular, excludes many disadvantaged African women from obtaining legal rights to support from their relationships.

Keywords: African women, duty of support, maintenance, unmarried opposite sex partners, cohabitation, Muslim marriage, customary law

Suggested Citation

Bonthuys, Elsje, A Duty of Support for All South African Unmarried Intimate Partners Part I (October 19, 2018). Potchefstroom Electronic Law Journal, Vol. 21, 2018. Available at SSRN: https://ssrn.com/abstract=3378447

Elsje Bonthuys (Contact Author)

University of the Witwatersrand ( email )

1 Jan Smuts Avenue
Gauteng 2000
South Africa

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