RAF claim ruling: marriage not the norm

2012-09-27 00:00

THE Supreme Court of Appeal yesterday acknowledged for the first time that the arrangement between heterosexual couples who choose to live together but not to get married must be acknowledged by third parties — in this case the Road Accident Fund (RAF).

Five judges gave this verdict, which could change the lives of the many couples living together.

The judges ruled that the old common law in which the “sanctity of marriage and the family as a unit” had to be protected at all costs, must make space for the “modern” reality in which “millions of couples” for a range of reasons choose not to get married. With the ruling, the court upheld the right of a woman whose life partner died in a car crash to claim against the RAF for loss of support, despite the fact that the couple was not married. Maria Paixão and her daughter, Michelle, sued the RAF for R2,2 million loss of maintenance and support arising from the death of Jose Gomes on January 2, 2008.

According to the evidence, he had been living with Paixão (who was born in Portugal) and her children in what was accepted to be a “permanent life partnership” since 2003, and he supported them financially.

He had planned to marry her, but had to finalise his divorce from his previous wife.

Paixão maintained that Gomes had contractually undertaken to maintain and support them, that he was legally obliged to do so, and that he would have done so for the remainder of her life and until her daughter was self-supporting.

The RAF defended the lawsuit on grounds that Paixão was not married to Gomes and that he had not formally adopted her daughter.

The five SCA judges said what they were required to decide was “whether the evolving fabric of our society requires the common law to undergo an incremental change to extend the dependants’ action to include heterosexual life partners,” Judge Azhar Cachalia said in the judgment.

“The fact is, however, that the nuclear family has for a long time not been the norm in South Africa. South Africans have lower rates of marriage and higher rates of extramarital child-bearing than found in most countries.

“Millions of South Africans live together without entering into formal marriages,” Judge Cachalia said.

The SCA ordered the RAF to pay Paixão the agreed sum of R1 707 612 and Michelle Paixão an agreed amount of R451 626.

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