Common-law claim fails again
WOMAN MUST SEEK REMEDY IN CONCOURT Heterosexual unmarried lovers can’t get maintenance after partner’s death.
APretoria woman will have to approach the Constitutional Court to challenge an anomaly in legislation which has resulted in unmarried heterosexual persons enjoying less protection under the law than samesex unmarried persons.
Martha du Toit turned to the court after the executor of the estate of her late partner, businessman John Maizey, turned down her R5.2 million maintenance claim on the basis that there was no duty to maintain a heterosexual domestic partner beyond the lifetime of the partner.
Maizey was estranged from his wife, but never divorced her and he and Du Toit had lived as husband and wife for six years before his death in 2011.
Du Toit said Maizey had fully maintained her and she was dependent on him, although she was employed as an account executive at his business.
She claimed Maizey had undertaken to care for her until she died and had left his house to her, but knew she could not afford to compensate his wife for her half-share in the property.
The executor of Maizey’s estate relied on a majority Constitutional Court judgment which ruled that the definition of “survivor” in the Maintenance of Surviving Spouses Act was limited to legally married persons and did not extend to life partners.
The executor argued the only way to remedy the position of heterosexual unmarried partners was for parliament to enact a new law and that the court could not trespass into the domain of parliament.
Du Toit maintained parliament had neglected its duty by failing to pass the Domestic Partnership Bill which was published for public comment in 2008, and that the court should develop the common law to protect her rights.
Acting Judge Thina Siwendu refused to set aside the executor’s decision, saying it was for the Constitutional Court to determine if parliament had neglected its duty.
She said the protections afforded to same-sex unmarried persons were rightfully asserted and hard won over time, resulting in the enactment of the Civil Union Act, but there was an inconsistency in the constitutional protection afforded to unmarried heterosexual partners.
However, she ruled that she was bound by the Constitutional Court ruling and could not develop common law where that position had been legislated upon and where Du Toit had not mounted a constitutional challenge.
Protections afforded to same-sex unmarried persons were hard won and resulted in the enactment of the Civil Union Act, but there was an inconsistency in the constitutional protection afforded to unmarried heterosexual partners.