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Breakups, divorce, separation – all synonymous with difficulty
01 February 2021  | Simei Verster | Views: 88
 

I always think of an ending like ripping of a band-aid. The quicker you do it, the less painful it is – but pain will there be. The same can be said about the ending of a relationship. Whether it is a breakup, a separation, or a divorce. The longer it takes, the more painful it becomes. I think this is one of the reasons people opt out of getting married, because divorce is often an inevitable reality typically not plain sailing. The costs and time involved in a divorce are not a secret, and many people, understandably, just don’t have the energy for it.

However, there are certain factors that need to be considered when parties opt out of getting married and instead are in a life partnership/long term relationship.

When two people enter a marriage, there are certain consequences that ensue automatically. For example, the reciprocal duty of support between spouses. With a life partnership, there are no automatic legal consequences. However, it has been emphasised by the Constitutional Court that families come in many various forms, and it would be unconstitutional to prescribe that certain families do not enjoy automatic legal consequences as our definition of a family should evolve together with the norms and practices of society. Yet, the judiciary has also handed down judgements that imply when parties opt out of getting married, they intentionally chose to exclude the rights conferred on married parties; and therefore, the law has no obligation to extend those same rights to life partners. [1] This is, however, a criticised opinion.

The South African Law Reform Commission has made recommendations that all life partners who want to formally commit to support each other (duty of support) should register their partnership. The effect hereof would be the legal recognition of the relationship. The parties would still have to appear before a registration officer to affect the registration, and upon the dissolution of the partnership, apply to court for a termination order. If you ask me, very few people will take this option, as it imposes many of the same elements of getting married that people in a life partnership often want to avoid.

Parties who still wish to not register their partnership, can at the termination of the relationship due to separation or death, apply to court for a maintenance order. The court will take into account the relevant details of the relationship and judicial precedent set by previous judgements. However, the fact remains that a court process needs to be engaged with, which for many people is still undesirable.

It is no secret that the laws and consequences surrounding life partnerships needs development. If it were me not wanting to get formally married, this is what I would do. I would consider concluding a written agreement that contractually binds my partner and I to certain obligations and creates certain rights. One of the oldest principles in our common law is pacta servanda sunt which means that “agreements should be kept”. The law is reluctant to intervene where competent parties have bound themselves to an agreement, as long as that agreement is not contrary to public policy, and therefore such an agreement between romantic partners will be enforceable. It seems cold and clinical to reduce a romantic relationship to a contractual agreement, however, I am a firm believer in equipping yourself with the necessary tools for success; and often success is walking away from a relationship with that which is rightfully yours.

 



[1] Volks NO v Robinson and others 2005 (5)

 
 
 
 
 
 

 
 
 
 
 
 

 
 
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