Domestic violence remains a critical social and legal issue in South Africa. The law recognises that abuse is not confined to married couples and extends protection to a broad spectrum of domestic relationships. Among these, the rights of unmarried partners—including those in long-term cohabitation or dating relationships—have been explicitly acknowledged through legislative reforms and judicial interpretation.
This article provides an in-depth analysis of protection orders available to unmarried partners, elucidating eligibility criteria, application procedures, and the scope of legal protection under the Domestic Violence Act 116 of 1998 (as amended).
Legal Recognition of Domestic Relationships Beyond Marriage
The Domestic Violence Act (DVA) adopts an expansive definition of a domestic relationship to reflect the diverse realities of intimate partnerships. Section 1 of the DVA defines a domestic relationship to include:
- Persons who are or have been married, civil or customary;
- Persons who are or have been life partners in a same-sex or opposite-sex relationship;
- Persons who are or have been engaged or dating;
- Persons who share or have shared the same residence;
- Parents of a child together, regardless of marital or cohabitation status; and
- Family members related by blood, marriage, or adoption.
This inclusive approach ensures that unmarried partners are unequivocally entitled to seek protection orders when subjected to domestic violence.
Protection Orders: Applicability for Unmarried Partners
Unmarried partners, whether in dating, cohabiting, or formerly involved relationships, may apply for protection orders if they experience domestic violence as defined in the Act. Domestic violence encompasses a wide range of abusive conduct, including but not limited to:
- Physical assault or bodily harm;
- Sexual abuse;
- Emotional, verbal, or psychological abuse;
- Economic or financial abuse;
- Intimidation, harassment, or stalking;
- Damage to property or unlawful entry.
The breadth of conduct recognised ensures protection is available regardless of formal legal status.
Application Process for Protection Orders
Unmarried partners seeking protection orders follow the same procedural pathway as married parties:
- Lodging the Application
The applicant completes a sworn affidavit detailing the domestic relationship and incidents of abuse. Courts require specific, credible evidence establishing the existence of a domestic relationship and the nature of the violence. - Interim Protection Orders
Courts may grant interim protection orders without notice to the respondent where immediate harm is threatened. - Service and Hearing
The order is served on the respondent, who may oppose on the return date. The magistrate assesses all evidence to confirm, vary, or discharge the order. - Final Protection Orders
Upon confirmation, the order is binding and enforceable nationwide.
Evidentiary Considerations Unique to Unmarried Partners
Cases involving unmarried partners often require courts to assess the existence and nature of the domestic relationship, which can be less formalised than marriage. Courts consider factors such as:
- Duration and stability of the relationship;
- Cohabitation and shared financial responsibilities;
- Joint parenthood or caregiving roles;
- Public recognition as partners;
- Intentions and conduct of the parties.
These factors help establish whether the parties qualify under the DVA’s domestic relationship definition.
Challenges and Judicial Attitudes
Unmarried partners may encounter challenges such as:
- Disputes over the factual basis of the relationship;
- Difficulties in obtaining evidence of cohabitation or support;
- Perceptions of relationship legitimacy affecting judicial discretion.
Nevertheless, South African courts have progressively affirmed that protection under the DVA must not be contingent upon marital status, emphasising the protective purpose over formal classification.
Intersection with Other Legal Rights
Protection orders for unmarried partners do not confer or affect rights of:
- Marriage or civil union;
- Inheritance or succession (which require separate legal arrangements);
- Property ownership (unless linked to shared residence or joint ownership);
- Parental responsibilities (which are governed separately under the Children’s Act).
Applicants are advised to seek comprehensive legal advice addressing all relevant legal aspects.
Practical Considerations for Applicants
Unmarried partners should be mindful that:
- Protection orders are civil remedies, not criminal charges, though breaches carry criminal penalties;
- Interim orders are temporary and require confirmation;
- Evidence should be detailed, consistent, and supported by any available documentation;
- Legal representation improves the likelihood of effective relief and enforcement.
Conclusion
South African law robustly protects unmarried partners from domestic violence through the Domestic Violence Act’s inclusive definition of domestic relationships. Protection orders provide critical legal safeguards that do not depend on marriage or formal partnerships but on the reality of abuse within intimate relationships.
Unmarried partners experiencing abuse are encouraged to seek immediate legal recourse and expert advice to navigate the procedural requirements and secure the protection they are entitled to by law.