标题：Rethinking Volks v Robinson : the implications of applying a "contextualised choice model" to prospective South African domestic partnerships legislation
摘要：This line of reasoning - which will for the purposes of this article be described as the "choice argument" - underlies the decision of the majority of the Constitutional Court in Volks v Robinson,a decision that effectively put paid to the judicial extension of matrimonial law to unmarried opposite-sex cohabitating life partners. At the time of this judgment (in February 2005), "opposite-sex marriage was the only legally recognised family form, and it carried with it a plethora of legal rights and obligations". The fact that only heterosexual persons were permitted to marry explains, at least at face value, why the courts were prepared to extend many of the rights and obligations attached to marriage to same-sex life partners5 while refusing to do the same for their heterosexual counterparts. However, the article will contend that closer analysis reveals that this reasoning is flawed. Nevertheless, the upshot of its application by the courts is an inconsistent and complex legal position in terms of which same-sex life partners currently enjoy more comprehensive legal protection than heterosexual life partners. In an attempt to rectify this state of affairs, a draft Domestic Partnerships Bill was published in January 2008. This Bill envisions a legal position that distinguishes between registered and unregistered domestic partnerships. The former category requires a public commitment (that is, a formal registration process) as a result of which certain rights and obligations (many of them closely resembling those attached to marriage) are extended to such partners. The latter category potentially includes all domestic partners who have not registered their relationship, with the exception of relationships in cases in which either of the partners was involved in a civil marriage, a civil union or a registered domestic partnership with a third party that co-existed with the domestic partnership. In opting for a "judicial discretion model" as far as this category of domestic partnership is concerned, the provisions of the draft Bill will not automatically apply to unregistered domestic partnerships during the subsistence of the partnership, but will instead allow either or both partners to apply to a competent court after the termination of their relationship for an order relating to property division, intestate succession or maintenance. The article will attempt to draw a number of conclusions from existing case law with the aim of streamlining the draft Bill. To this end, the "choice argument" and the relevance of a contractual reciprocal duty of support will be considered with a view to formulating a "contextualised choice model" that, it is submitted, will ensure a more consistent and principled legal position once the Bill is enacted.
