With its ‘marriage-centric’ focus, the Constitutional Court privileges religious unions in its approach to the term spousal relationship, thereby failing to force the legislature to protect all legally unrecognised unions that play the same social role as marriage. So argues Ladysmith Magistrate Desmond Francke.

In a De Rebus analysis, Francke says it is more important to determine whether a spousal relationship exists than legalising a relationship through marriage and the solemnisation of a civil union.

However, he acknowledges that relationships outside marriage are much more difficult to ascertain and that legislation provides little guidance on what constitutes cohabiting in a spousal relationship or when such a relationship may be said to start or end.

'The Constitutional Court (CC) has decided in various decisions whether people must choose whether to marry or not and, depending on their decision, whether protection flows from it or not. It seems the court sided with sectional religious or moral views despite the wording of s 9(3) of the Constitution,' Francke writes.

He refers to comments by Justice Sachs in his minority decision of Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC): ‘By opting not to marry, thereby not accepting the legal responsibilities and entitlements that go with marriage, a person cannot complain if she is denied the legal benefits she would have had if she had married. Having chosen cohabitation rather than marriage, she must bear the consequences. Just as the choice to marry is one of life’s defining moments, so, it is contended, the choice not to marry must be a determinative feature of one’s life.'

Francke says the Constitutional Court had several opportunities to adopt an inclusive approach in defining the term ‘spouse’ when challenged with the term ‘spouse’.

In Daniels v Campbell NO and Others 2004 (5) SA 331 (CC), the apex court held the word spouse as used in the Intestate Succession Act, includes the surviving partner to monogamous Muslim marriage.

'In Volks the court held at para 56: "The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in section 2(1) of the (Maintenance of Surviving Spouses)  Act falls within the scope of the maintenance support obligation attached to marriage".'

He says the justification offered for the special treatment of the married has traditionally been moralistic and religious.

'Certain kinds of intimate and family relationships are seen as morally superior to their functional equivalents, and it is thought appropriate to use the law to encourage such relationships by bestowing more favourable treatment and the stamp of legitimacy on those who enter into them by acquiring an official licence from the state.'

Full analysis in De Rebus