NONMARRIAGE AND CHOICE IN SOUTH AFRICA AND THE UNITED STATES.

• Author: Lau, Holning

TABLE OF CONTENTS INTRODUCTION I. PRIMER ON SOUTH AFRICA II. NONMARRIAGE AS A VALID CHOICE III. MARRIAGE AS AN ILLUSORY OR CONSTRAINED CHOICE IV. CRITERIA FOR RECOGNITION AND IMPLICATIONS FOR CHOICE CONCLUSION INTRODUCTION

Should the law recognize unmarried couples as family for purposes such as joint adoption, workplace leave, property distribution upon dissolution, and intestate succession? Questions concerning nonmarital couples have captured the attention of U.S. legal scholars. (1) Research has drawn on other countries' experiences extending legal recognition to nonmarital families. (2) Yet this scholarship has largely overlooked South Africa. This Article helps to fill that gap. South Africa's law of nonmarriage has undergone a sea change animated in large part by changes to conceptualizations of choice. In this Article, we examine how attention to South Africa can enrich understandings about U.S. law and its relation to principles of choice.

Insights from South Africa are especially meaningful because choice has also played a central role in U.S. debates about whether and how to recognize unmarried couples. (3) This focus on choice has featured particularly prominently in discourse about proposals such as the American Law Institute's domestic partnership scheme, which would impose legal consequences on couples who cohabit. (4) If we accept that freedom of choice is indeed an important organizing principle in the law of nonmarriage, we should study South Africa because it illuminates new pathways for understanding choice. (5)

With its underlying conceptualization of choice evolving over the years, South Africa gradually broadened legal recognition of unmarried couples. Litigation fueled much of this change, culminating in the South African Constitutional Court's 2021 decision in Bwanya v. Master of the High Court, (6) which concerned the death of unmarried "permanent life partners." (7) Bwanya ruled it unconstitutional to deny surviving life partners--regardless of sexual orientation--rights to intestate succession and maintenance from a deceased partner's estate. (8) Prior to Bwanya, South Africa already recognized permanent life partnerships in a wide range of legal contexts, including immigration, (9) adoption, (10) tax," bereavement leave, (12) pension benefits, (13) common law "dependants' actions," (14) and cohabitation agreements. (15)

In this Article, we examine three insights about free choice that emerge from studying the development of South Africa's law of nonmarriage. First, South African jurisprudence advances understandings of nonmarriage as a valid choice. (16) Unlike U.S. jurisprudence, which has been accused of over-privileging marriage and demeaning nonmarriage, South African jurisprudence draws attention to people's legitimate reasons for choosing not to marry and the dignity interests attached to that choice. (17) South African law helps to broaden the imagination of what is possible when nonmarriage is respected as a valid choice.

Second, South African jurisprudence illuminates the fact that the choice whether to marry can be severely constrained and even illusory. (18) When couples desire marriage and have de jure legal capacity to marry, de facto conditions may well place marriage out of reach. For example, a gay couple in a homophobic small town may remain closeted for their safety and see marriage as an unrealistic option. Marriage may also be an unrealistic choice due to intra-couple power dynamics, such as when a financially dependent woman wishes to marry but her partner, who has financial leverage, opposes marrying. A couple that jointly wishes to marry may also find marriage out of reach if they face pressures to delay marriage or if one partner dies before wedding plans are realized. South African law prompts us to contemplate how law should respond to the fact that the choice to marry is sometimes severely constrained.

Third, the trajectory of South African law sheds light on how the principle of free choice can help shape the criteria that unmarried couples must satisfy to receive legal recognition. (19) As we will explain, South African law regarding recognition criteria requires elaboration and refinement. Yet, it also contains the nascent idea that criteria for recognition should vary by context. For example, the criteria for legally recognizing an unmarried couple for adoption or workplace leave need not--and should not--be the same as criteria for legally recognizing an unmarried couple for intestate succession. We contend that this contextual approach to recognition criteria serves a variety of salutary goals, including the enhancement of autonomy.

The remainder of this Article will proceed in four steps. Part I provides a brief overview of legal developments in South Africa. Afterwards, we delve into the three abovementioned dimensions of choice: Part II examines nonmarriage as a valid choice; Part III addresses marriage as a constrained choice; and Part IV discusses choice as a factor in designing recognition criteria. We will examine how studying South Africa enriches our understandings of these dimensions of choice. To be sure, choice is not the only principle that should inform the law of nonmarriage. Equality, human vulnerability, and administrative feasibility are some of the other considerations that should play a role in shaping family law. (20) This Article, however, focuses on enriching our understandings of choice.

1. PRIMER ON SOUTH AFRICA

   According to census data, 1.3 million people in South Africa (5.0% of the population) were in an (unmarried) cohabiting partnership in 2006. (21) That number grew to 3.6 million people (9.8%) in 2011. (22) Based on Community Survey data, an estimated 3.2 million people in South Africa were in cohabiting partnerships in 2016, constituting 8.3% of the population. (23) This rate of unmarried cohabitation is not far off from that of the United States, where an estimated 7.7% of people were living with an unmarried partner in 2018. (24) Increases in cohabitation in South Africa have varied by factors such as age, race, language, and location. (25) For example, the increase has been more pronounced for Black South Africans than for White South Africans, (26) with an estimated 9.0% of Black South Africans in cohabiting partnerships in 2016 as compared with 5.0% of White South Africans. (27)

   Commentators in South Africa have called for comprehensive legislative reform to legally recognize unmarried couples. (28) In fact, in 2006 the South African Law Reform Commission (SALRC) issued a report proposing reforms that would extend a bundle of rights and responsibilities to unmarried couples. (29) Based on the SALRC's recommendation, South Africa's Department of Home Affairs published a draft Domestic Partnership Bill for public comment in 2008. (30) Parliament, however, never moved forward with the proposed legislation. Instead of pursuing comprehensive reform, South Africa has extended legal recognition to unmarried couples on a piecemeal basis. (31)

   Until the late 1990s, unmarried couples were in similar legal positions regardless of sexual orientation. Unmarried cohabitation had very few legal consequences. Regardless of sexual orientation, unmarried couples could attach legal significance to their relationships through contracts--express or tacit agreements--and legal instruments such as wills and trusts. (32) An individual could bring a claim of unjust enrichment or utilize the defense of estoppel against their nonmarital partner.33 Additionally, by the late 1990s, discrete pieces of national legislation recognized same-sex and different-sex unmarried couples for very limited purposes, such as domestic violence protections and bereavement leave in the event of a partner's death. (34)

   Starting in the late 1990s, a chasm grew between the legal positions of same-sex and different-sex unmarried couples. Unmarried same-sex couples secured a range of legal rights through constitutional litigation. In a series of cases, courts including the Constitutional Court of South Africa held that same-sex permanent life partners had a right to receive the same benefits as spouses for the purposes of medical benefits, (35) immigration, (36) pensions, (37) joint adoption and guardianship, (38) parenthood through artificial insemination, (39) common law dependants' actions, (40) and intestate succession. (41) These cases all preceded the legalization of same-sex marriage. (42) According to the Court, depriving same-sex life partners of such benefits while also excluding them from marriage amounted to unconstitutional discrimination based on sexual orientation and violated the constitutional right to dignity. (43)

   The Court eventually ruled in 2005, in Fourie v. Minister of Home Affairs, that excluding same-sex couples from marriage was unconstitutional. (44) Parliament responded by passing the Civil Union Act, which legalized same-sex marriage and also gave both same-sex and different-sex couples the option to register their relationship as a "civil partnership" instead of a marriage. (45) A civil partnership differs from marriage in name only.

   In the 2016 case of Laubscher v. Duplan, the Court made it clear that unregistered same-sex life partners continue to possess intestate succession rights notwithstanding the legalization of same-sex marriage and civil partnerships. (46) In other words, the availability of same-sex marriage and civil partnerships did not nullify the Court's earlier case law extending intestate succession rights to same-sex life partners. The majority opinion recognized that, unless Parliament decides otherwise, unregistered same-sex partners will continue to enjoy the legal recognition that had been extended through previous case law. (47) The reasoning in Duplan could be applied beyond the context of inheritance to the range of judicially created rights for same-sex life partners.

   The legal recognition...