n Acta Juridica - Domestic partnerships and marital status discrimination




In a judgment handed down in February 2005, the South African Constitutional Court decided not to involve itself in the transformation of the law regulating cohabitation. It opted instead to leave the matter to the executive and to Parliament to resolve. The Court seems to have been daunted by the scale of the problems presented by this endemic social phenomenon. Its response was to opt for apathy. This reluctance to involve itself in a pressing law reform problem is regrettable.

At some point the Court will have to pass judgment on the permissible constitutional parameters of legislative reform in this area. It is a pity that it did not take this opportunity to set out those parameters. It could have aided government in its formulation of the structure of reform, and provided real solutions to those trapped in the inequities that cohabitation creates in the period leading up to the final reform that is adopted by government.
The failure of the majority judgment to provide solutions highlights the need for reflection once again on the nature of the problems that social change in family life has created, and to consider the role of the Constitution and the judiciary in resolving those problems. I will, therefore, try to do two things in this article. I will focus on the specific facts in and offer a critique of the decisions that the judges in the Constitutional Court handed down in that case. But I will also generalise the decision to the trends in family law on which the case is based. In doing so, I hope to offer some thoughts on the way in which I believe government and the courts should approach matters dealing with cohabitation in the future.
The overarching approach that I will adopt in discussing the problems that were encapsulated in this case is the need to achieve a just resolution of the problems unmarried partners face. It is important to spell out the nature of the claim to justice that is being promoted. Solutions to the problems of cohabitants must, clearly, be even handed; they must, present a solution which is fair to partners. This obviously means that the personal circumstances of both individuals in a cohabiting relationship should feature in the resolution of their cohabitation dispute. It also means that the social context in which their relationship is lived must feature (prominently, I would argue) in the just resolution of their disputes. The public face of family life and the currents of prejudice which exist in the social world and which envelop real families must be acknowledged and dealt with if any resolution is to be just to the parties to cohabitation disputes. My plea is especially for gendered power relations in society to be taken seriously and to be addressed appropriately in providing solutions for cohabitants. Policy makers as well as judges have a responsibility to adopt a broad perspective on the nature and sources of injustice that arise when cohabitation relationships end. And judges, in particular, should not balk at offering limited solutions to problems which appear to be dwarfed by the greater injustices perpetrated on the parties by the social context in which the solution is offered. A partial solution is, it is submitted, almost always better than no solution at all.


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