Married couples are entitled to claim maintenance from their deceased spouse's estate because the institution of marriage creates unique reciprocal duties of support which do not exist between permanent life partners.

Though they were not legally married and had no children together, they had lived together continuously in Cape Town since 1989; they shared household costs and Robinson, a freelance journalist, was to a large extent dependent on the deceased's financial assistance.

In the event that the High Court found that Robinson was not a "survivor" because she was not legally married to the deceased, she alternatively sought an order declaring that the Act was unconstitutional insofar as it excluded permanent life partners from the protections granted to surviving spouses.

Judge Dennis Davis of the High Court's Cape Provincial Division upheld Robinson's application.

Applying the so-called equality test formulated in Harksen v Lane NO and Others, Davis found that the Maintenance of Surviving Spouses Act differentiates between married spouses and unmarried cohabitants in "a permanent and intimate life partnership", that there are no justificatory grounds for such differentiation, and that the relevant provisions therefore constitute unfair discrimination in violation of the right to equality enshrined in Section 9 of the Constitution.

The trio professed themselves to be in broad agreement with each other in finding that the relevant provisions were indeed unconstitutional, though they outlined their reasons in two separate opinions, one co-written by Mokgoro and O'Regan and the other written by Sachs.

In 2019, Judge Davis – the High Court judge whose judgment was overturned by the Constitutional Court – criticised the majority judgment for claiming to recognise the vulnerability experienced by unmarried women in cohabitation relationships while also demonstrating "a general refusal to attribute legal consequences to this social reality".

[1]Likewise, other commentators viewed it as "incomprehensible" that the majority had failed to recognise the reciprocal duties of support inherent in permanent heterosexual life partnerships, especially since it had inferred the existence of such a duty in same-sex life partnerships in Du Plessis v Road Accident Fund, Gory v Kolver, and Satchwell v President, among others.