Domestic partners and the "Choice argument" : Quo vadis?

Abstract

Despite the fact that a domestic partnership has been recognised as a life-partnership, similar to that of marriage, domestic partners cannot ex lege avail themselves of spousal benefits. The imperatives of equality and human dignity imposed by the Constitution have, however, necessitated the legislative and judicial recognition of domestic partners as spouses for certain purposes on an ad hoc basis. The piecemeal recognition afforded to domestic partnerships on this basis has been deemed insufficient to protect the interests of the partners concerned, as it largely ignores the consortium that exists between them. Coupled with the increasing prevalence of cohabitation in lieu of marriage, the limited protection provided to domestic partners as life-partners has challenged the Napoleonic adage "cohabitants ignore the law, and the law ignores them". While there is general consensus that there is a dire need to regulate domestic partnerships by way of comprehensive and robust legislation, it is less certain what rationale should underlie the status-giving legislation. Until now, the non-recognition of domestic partnerships has been justified by what is commonly referred to as "the choice argument". Simply put, the choice argument dictates that unmarried partners cannot claim spousal benefits because they choose not to "marry". Whether this argument should still underlie the future recognition of domestic partnerships has become uncertain in the light of the enactment of the Civil Union Act 17 of 2006, the decision of Gory v Kolver, and finally, certain conceptual deficiencies identified in the rationale underlying the choice argument.