Faculty of Commerce, Law and Management (Research Outputs)
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Item What’s the deal? women’s evidence and gendered negotiations(Springer, 2018-11) Bonthuys, ElsjeSouth African law has traditionally denied property sharing rights to people in nonmarital intimate partnerships, but a series of new cases has created the possibility of enforcing universal partnership contracts to claim a share in partnership property.However, evidential biases within these progressive cases reflect a historical disdain for women’s contributions to relationships and a widespread reluctance to believe women’s testimony about the existence of agreements to share. These biases bear strong resemblances to the gender stereotypes which have been the subject of feminist critique in rape law. Central to both rape and universal partnerships is the issue of consent or agreement between men and women. This, in turn, depends on social beliefs about male and female entitlements in the realms of sex and intimate relationships. The paper highlights the commonalities and parallels between the legal treatment of women’s evidence about the existence of contracts on the one hand, and the prejudice faced by complainants in rape cases.Item A duty of support for all South African unmarried intimate partners Part I: the limits of the cohabitation and marriage based models(North-West University, 2018-10-19) Bonthuys, ElsjeThe democratic Constitutional dispensation has led to the gradual extension of spousal duties of support to unmarried couples who hitherto could not legally claim support from their partners or from third parties who had unlawfully caused the death of their partners. The new recipients of rights to support can be divided into three groups: wives in Muslim religious marriages, partners in same-sex intimate relationships and unmarried opposite sex cohabitants whose relationships closely resemble civil marriage in both form and function. However, certain distinctive features of customary marriage, the continuing consequences of apartheid policies for African families and certain distinctive patrilineal features of traditional African families have largely excluded African women – who constitute the largest and most economically vulnerable group of women – from the benefits of these developments. Part one of this two-part article analyses the trajectory of the developing right to support intimate partnerships which appear to be based either on marriage (in the case of Muslim marriages) or relationships similar to marriage, including monogamy and permanent co-residence in the case of same-sex and opposite sex partners. This leaves no room to extend rights to unmarried intimate partners whose relationships do not fit the template of civil marriage and, in particular, excludes many disadvantaged African women from obtaining legal rights to support from their relationships.Item Developing the common law of breach of promise and universal partnerships: rights to property sharing for all cohabitants(Juta Law, 2015) Bonthuys, ElsjeThe Constitutional Court's 2005 judgment in Volks NO v Robinson' has been widely regarded as a setback for the extension of legal rights to opposite-sex cohabitants. The majority of the court held that an unmarried opposite-sex cohabitant is not a spouse under the Maintenance of Surviving Spouses Act 27 of 1990.2 According to Smith, this judgment 'effectively put paid to the judicial extension of matrimonial law to unmarried opposite-sex cohabiting life partners'