Maintenance after a relationship breaks down has long been treated differently depending on whether a couple was married. Spouses have a statutory route to interim and final maintenance under the Divorce Act 70 of 1979. Unmarried life partners, however, have had to rely on the common law, with the courts historically reluctant to impose a duty of support where no marriage existed. A March 2026 Western Cape High Court judgment has reopened this question, awarding interim maintenance to an unmarried partner for the first time. This article sets out what changed, what stayed the same, and what life partners need in place to protect themselves.
Spousal Maintenance Versus Life Partner Support Claims
Spousal maintenance arises automatically from marriage. Section 7 of the Divorce Act allows a court to order maintenance on divorce, and Rule 43 of the Uniform Rules of Court allows a spouse to claim interim maintenance while divorce proceedings are pending. The duty of support is a legal consequence of the marriage itself.
Life partners have no equivalent statutory right.
- There is no automatic duty of support between unmarried partners during the relationship or after separation.
- Any claim must be built on common law principles, primarily a universal partnership or a proven duty of support arising from a marriage-like relationship.
- Courts assess each case on its own facts. There is no fixed formula based on the length of cohabitation.
Why Recent Case Law Has Attracted Attention
For years, the leading authority limiting life partner claims was Volks v Robinson (2005), in which the Constitutional Court declined to extend spousal maintenance protection to unmarried partners. That position began to shift with Bwanya v Master of the High Court, Cape Town and Others (2021), where the Constitutional Court found aspects of the Maintenance of Surviving Spouses Act 27 of 1990 and the Intestate Succession Act 81 of 1987 unconstitutional to the extent that they excluded a surviving partner in a permanent life partnership with reciprocal duties of support from claiming against a deceased partner’s estate.
Bwanya dealt with claims after death, not after a relationship ended through separation. In E W v V H (12272/2022) ZAWCHC 58, the Western Cape High Court was asked to develop the common law to recognise a post-termination duty of support between living, separated life partners and to award interim maintenance on that basis. The court declined, with the majority holding that such a significant development of the common law should be decided at trial, not on an interim, interlocutory basis. Judge Eduard Wille dissented, arguing that the constitutional reasoning in Bwanya supported recognising the claim.
That dissent proved significant. In P.A.L v R.J.T (17492/2023) ZAWCHC 99, handed down on 4 March 2026, the Western Cape High Court granted interim maintenance to an unmarried partner pending trial. The judgment is being read as an important step toward recognising that equality and dignity can justify interim protection for financially dependent life partners in appropriate cases.
When a Partner May Have a Claim Based on Dependency or Agreement
Even with this development, a life partner does not get an automatic right to maintenance. A claim is more likely to succeed where the partner can show:
- A permanent, marriage-like relationship. Courts look at the length of the relationship, whether the couple lived together, presented themselves as a couple publicly, and managed their lives jointly.
- A reciprocal duty of support. Evidence that each partner supported the other financially or in kind, not simply that one partner happened to pay certain bills.
- A written cohabitation agreement. Where a couple has recorded their intentions regarding support, property, and what happens on separation, courts have a far clearer basis to enforce those terms.
- A universal partnership. Where partners pooled resources, contributed to a joint estate, or ran a household or business together with a shared purpose and shared risk, a partnership claim for a share of the joint estate may exist independently of any maintenance claim.
A claim based purely on dependency, without evidence of a true reciprocal arrangement, remains difficult to sustain. The courts have been clear that financial dependency alone, without an established duty of support, is not enough.
Financial Proof That Matters
Because there is no automatic right to support, the burden of proof sits with the partner bringing the claim. Courts in interim maintenance applications generally expect:
- Bank statements showing regular payments, transfers, or shared household expenses over time.
- Proof of joint accounts, joint property ownership, or joint liability for debt.
- Records of contributions to rent, a bond, school fees, or medical costs.
- Communication (messages, emails, correspondence) referring to an understanding of mutual support.
- A clear, current breakdown of both parties’ income, expenses, and assets, since interim maintenance applications assess actual need and actual ability to pay, not assumptions about lifestyle.
Where this evidence is missing or inconsistent, courts have shown they will not simply infer a duty of support from the fact that two people lived together.
Practical Implications
For now, the practical position is:
- Life partners should not assume informal cohabitation gives them the same protection as marriage.
- A written cohabitation agreement setting out support obligations, property rights, and what happens on separation or death gives a partner a far stronger position than relying on inference from conduct.
- Keeping clear financial records of joint contributions strengthens any future claim, whether for maintenance, a share of a universal partnership, or a claim against a deceased estate.
- Anyone currently in, or recently separated from, a life partnership and considering a maintenance claim should get advice early, since the law in this area is still developing and outcomes depend heavily on the specific facts and evidence available.
Conclusion
South African law is moving, cautiously, towards recognising that unmarried life partners can, in some circumstances, claim maintenance, both from a deceased partner’s estate and on an interim basis after separation. But this remains a developing and fact-specific area of law. Partners who want certainty should not wait for the courts to settle the question. A properly drafted cohabitation agreement, combined with clear financial records, remains the most reliable protection available under current South African law.
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