When the affair ends
Renee van den Heever, a Director at Herold Gie Attorneys and a family law expert, says that the Commission has highlighted the overwhelming social pressure for reform.
"Only 40% of Coloured and African couples in South Africa who have formed permanent intimate relationships, are married and at least 50% of these couples are cohabiting. These unions tend to be dependence producing and one of the parties, normally the woman, is often left destitute when they break up.""Pro-marriage sectors have protested that these women choose their own fate by not marrying their partners, but traditional African weddings are costly and involve the presentation of gifts in the form of cattle or cash," explains van den Heever. "Couples often complain that they cannot afford the wedding. A woman with children may choose to remain in a relationship where the man refuses to marry her, simply because she does not have the financial resources to go her own way."
But the question arises whether the move to afford partners who are intimately involved, but not married, the same rights and obligations as married couples, will prejudice the wife of an errant husband financially.
"Surely it will if a partner in an intimate relationship is given the right to share in property or the right to be maintained," says van den Heever. "Up till now the financial loss to which the wife may have been exposed was perhaps limited to her errant husband's hotel or restaurant bills and a few gifts along the way – expenses easily hidden or explained, not necessarily hurting the household budget."
What could the consequences be, should a jilted mistress be able to convince a court that she was a partner in an intimate relationship and therefore has legally enforceable rights?
"It seems likely that the proposed legislation will favour the granting of a right to share in joint property or to share in the separate property of the other partner. This will in effect mean that a mistress may be able to claim a share of the property which belongs to the man."
"Care has been taken in the proposed bill to try and avoid a situation like this," explains van den Heever. "It is recommended that a party (let's say the mistress) should only be able to claim a share in the other party (the man's) property where she actually contributed to the rise in value of his property. All very well, but the married sugar daddy may be well warned to conduct his business with caution should he be involved in an intimate relationship outside his marriage."
"Consider the scenario where an architect regularly gives his mistress a lump sum to assist her in paying off her bond, suggesting that they share in the profit should she ever sell her apartment. He uses her computer regularly to design high-rise buildings when he visits her at night or when his wife is away visiting her family. She is also his personal assistant in his practise and secures work for him through her brother who is a property developer. The relationship ends and the mistress claims a share in the architect's practice as a settlement."
"The claim could very well succeed," says van den Heever. The mistress contributed indirectly to profit made in the business over a lengthy period. Apart from that, he contributed to the bond instalments. The mistress's apartment could be regarded as partnership property, again providing grounds for the averment that partnership property was utilised to accomplish an increase in the value of the man's separate property, i.e: his architectural practice."
However, members of religious institutions are adamant that the granting of any form of status to "domestic partnerships" would contribute to a break down in family life and encourage people to "live in sin".
According to van den Heever, the very real threat of getting saddled with a maintenance order should dampen the amorous advances of many a straying husband.
"The proposed bill makes provision for a party involved in an intimate relationship to obtain a maintenance order against her former lover. The woman applying for the maintenance order would have to convince the court that she is unable to support herself adequately because her earning capacity has been adversely affected by the so-called partnership with the man."
The proposed Domestic Partnership Act must still be pummelled into shape and attract wider safeguards to prevent court orders which may be repugnant to justice, but fact remains, legislation is looming to provide relief to those who are left destitute upon the break-up of a relationship which fostered dependency.