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February 22, 2005

Unmarried survivor cannot claim maintenance - ConCourt

A woman, who wanted to claim maintenance after the death of her life partner, was refused remedy by the Constitutional Court, which, in a majority decision, ruled that Ethel Robinson, who was not married to her partner Aaron Shandling when he died in 2001, did not have the legal right to financial support from Shandling's estate. A report on the IoL site says the court recognised that many women become economically dependent on men, and could be left destitute on the death of their male partners, but said these wrongs would not be put right by including unmarried partners in the Maintenance of Surviving Spouses Act. The MSS Act gives rights to survivors of a marriage, but defines a survivor as ‘the surviving spouse in a marriage dissolved by death’. Robinson, represented by the Women's Legal Centre (WLC), contended that the Act was in conflict with the Constitution, because it unfairly discriminated against domestic partners. Robinson and Shandling had been involved in a monogamous life partnership for 15 years. Justice Skweyiya, who wrote the judgment, said changing the wording of the Act would be a ‘palliative measure’. He said the vulnerability of women in domestic relationships was a widespread problem that should be addressed through the empowerment of women. The judgment also noted the need to improve the law to put more general rights and obligations on people who live in domestic relationships.
Full report on the IoL site

Noting that the ruling has adverse implications for women in domestic life partnerships, the WLC’s Director, Michelle O’Sullivan, says: ‘The majority decision seems to suggest that the economic and social problems faced by women in domestic partnerships are so widespread that the limited assistance available to them through claiming maintenance from their partners deceased estate is unlikely to alleviate the level of vulnerability that they experience.’ O’Sullivan adds in a statement on the Legalbrief Today site that Judge Skweyiya also suggests that it is only once relationships are recognised by legislation during the subsistence of the relationship that the court could meaningfully consider what should happen upon the death of a partner to that relationship. ’It is strange that when faced with the opportunity to diminish the vulnerability of women at the end of a domestic partnership, the Constitutional Court relies on the severity of the vulnerability of women in the group concerned in order to justify refusing an extension of benefits to women in domestic partnerships.’ However, the statement finds light in the dissenting judgments of Justice Mokgoro and O’Regan, the two women on the Court, and the dissent by Justice Sachs. They found there was a constitutional violation and would have given the legislature two years to remedy the violation.
Full WLC statement on the Legalbrief Today site

General: ANC attacks on judiciary ‘manipulative’ – Leon
As the debate on racism in the judiciary simmers behind closed doors, DA leader Tony Leon has accused government of seeking to manipulate the debate to ensure a more docile judiciary, says a
Business Day report. Government is smarting from a series of recent losses in court, including defeated proposals on new medicine pricing, its overturned decision to allow the construction of a pebble bed modular reactor, and the thwarting of its decision that the Mikro Primary School teach learners in English and Afrikaans. The report says Leon accused the ANC of seeking to ‘intimidate the judiciary’, using the debate around racism on the Bench. ‘Stung by its defeat at the Supreme Court of Appeal in the pharmaceutical pricing case late last year, and looking ahead to a number of critical judicial decisions in the next few months, the ANC has launched a well-planned series of attacks on the independence of the SA judiciary,’ he said.
Full report in Business Day


Supplied courtesy of Legalbrief Today.