A woman who asked the Western Cape High Court to develop the common law to permit unmarried couples in life partnerships to claim maintenance from one another in the event of separation has lost this stage of her application.

A Pretoria News report says she argued that the lack of legal recourse for life partners to claim maintenance from one another following the termination of their partnership is constitutionally unacceptable since it discriminates on the basis of marital status and gender and constitutes unequal protection before the law.

Judges Judith Cloete and Hayley Slingers said there was no need to develop the common law at this stage.

‘We are not persuaded that development of the common law in the manner proposed by her is necessary or appropriate,’ they said.

Cloete, who wrote the judgment, said there were other remedies available to the applicant. 

‘The applicant already has a common law remedy, and her entitlement or otherwise to maintenance rests squarely on that remedy. She must first prove facts establishing that the duty of support existed and that it existed in a familial setting. If proven, her right to legal protection will be established,’ the judge said.

Cloete added that the pending action – in which she will pursue her application for maintenance – afforded her the perfect opportunity to do so.

The judge said in reaching these conclusions, the court made it clear that they pertained only to the particular case presented to them by the applicant.

However, in a dissenting judgment, Judge Derek Wille said he would have made an order declaring that partners are entitled to claim interim financial relief from one another following the termination of the life partnership.

Full Pretoria News report

Judgment