Legal Talk

An unmarried partner can claim maintenance from the RAF

An unmarried partner can claim for loss of maintenance and support. In the case of Jacobs v RAF, the deceased died in a motor vehicle accident. At the time of his death although married to someone else, he was living with his partner Ms. Jacobs (and not his wife). Ms. Jacobs brought an action as plaintiff against the Road Accident Fund ("the RAF"), claiming loss of maintenance and support.

The RAF denied it was liable for any duty of support to Jacobs, based on the fact that the deceased and Jacobs were not married to each other. Thus thee court needed to determine whether there was a legally enforceable duty to support the partner Jacobs arising out of a relationship akin to a marriage.

Ms. Jacobs said that she and the deceased lived together, when he moved into her house with her two minor children. She said the deceased was employed and maintained her and her minor children. She never worked and was a stay at home partner. She was aware that the deceased was married.

She said that before his death, the deceased had proposed to her and they had decided on the date of the 15th September 2015 to solemnize their union, subject to the divorce of the deceased from his wife being finalized. She said the deceased had assured her that his love relationship with his wife had ended.

She led evidence that a period of six years before his demise, he was the sole income earner for their household and was responsible to maintain her and her minor children. She said that the deceased had expressly promised that he was going to marry her as soon as his divorce from his wife was finalized. Judgement was delivered on 23 November 2018.

The court found that there was sufficient evidence to show the deceased undertook to support Ms. Jacobs with the intention to be legally bound by such undertaking. The court also found that the deceased therefore owed Jacobs a contractual duty to support.

On the issue of the morality of the matter, the court said that our society recognizes the sanctity of marriage and by extension the reciprocal duty spouses owe each other. It also said that our courts also have a duty to develop the common law in a manner that promotes the spirit, purport and objects of the Bill of Rights.

Accordingly, it held that "cohabitation outside a formal marriage, even where one of the parties is still married, is now widely practiced and accepted by many communities, including our South African community". The court found that the plaintiff had proven that she was in a relationship akin to a marriage, and that she should be afforded protection as a dependent.

The court then ordered that Jacobs and her two children be allowed to claim as dependents as that she should not be discriminated upon as section 9 of our Constitution, affords her that protection.

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