Abstract
Part I of this two-part article argued that post-constitutional developments of the right to support have excluded the largest and most vulnerable sector of South African women – African women in invalid customary marriages and in intimate partnerships which do not resemble monogamous Western nuclear households. Part II explores the avenues to develop customary and common law to extend rights to support to these women. It argues that the current position discriminates against poor, rural African women on multiple intersecting grounds, which creates a duty for courts to develop the current legal rules. Customary law affords scope for development in relation to women in invalid customary marriages. Common law rights to support can be extended either ex contractu or ex lege. Because contractual support rights are of limited use to poor women, the legacy of the majority judgments in Volks v Robinson 2005 5 BCLR 446 (CC) (Volks) must be confronted to strengthen the legal basis for an automatic duty of support to all women in unmarried intimate relationships. The argument in Volks that, women choose to forego legal rights by not getting married is criticised. The minority judgment in Laubscher v Duplan 2017 2 SA 264 (CC) does, however, create potential for overturning this reasoning.
 
Highlights
Part 1 of this article1 set out to show that the post-constitutional avenues for extending rights to support to unmarried intimate partners are either based on the existence of a marriage recognised by a major religion or on a combination of the marriage-like quality of the relationship and undertakings or contracts to provide reciprocal support in the case of same-sex and unmarried opposite-sex relationships.Using demographical statistics and anthropological studies, I argued that the great majority of South African women, especially the most disadvantaged, are unlikely to benefit from these legal developments
Can the contractual duty of support still be enforced against a partner even after the relationship has broken down? The answer will depend on the terms of the tacit contract – whether a court will find that the parties agreed that the defendant undertook to support the plaintiff for the duration of the relationship only, or that the support would continue after the end of the relationship
He appears to regard the mere fact of different legal treatment as discriminatory. The chink which it provides in the Constitutional Court solidarity on the Volks majority judgment presents a welcome opportunity for future litigation to dismantle the choice argument in its present form. The aim of this series of two articles is to assess the efficacy of legal developments of the law of spousal maintenance to provide rights to support to the majority of South African women, who are African and often economically, educationally and socially disadvantaged
Summary
How to cite this article Bonthuys E " A Duty of Support for All South African Unmarried Intimate Partners Part 2: Developing Customary and Common Law and Circumventing the Volks Judgment" PER / PELJ 2018(21) - DOI http://dx.doi.org/10.17159/17273781/2018/v21i0a4411
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
