For many years it has become common practice for many heterosexual South African couples to live together for a significant period of time as married couples would without actually getting married legally. This type of relationship is known as a life partnership, and although these couples are in permanent relationships like married couples, they are not afforded the same protection in law. As a result, for many years, the legal position has been that in instances where a party in a life partnership has not concluded a valid Will and subsequently passes away, the surviving partner would be excluded from inheriting intestate or claiming maintenance from their deceased life partner’s estate. However, in a recent case, the legal position regarding inheritance and maintenance claims for surviving partners in an opposite-sex life partnership was revisited.
The Bwanya Case[1]
In this case, the constitutionality of both the Intestate Succession Act 81 of 1987 and the Maintenace of Surviving Spouses Act 27 of 1990 was challenged to that extent they exclude a surviving partner from opposite-sex life partnership to inherit or receive maintenance from their deceased life partner’s estate was challenged. The applicant and her deceased life partner lived together, had reciprocal duties of support and were engaged to get married. The applicant was financially supported by the deceased; however, the deceased passed away before they could conclude their marriage. The court was satisfied by the evidence that was presented that the parties were indeed in a life partnership.
The applicant argued that the specific sections in the Maintenace of Surviving Spouses[2] and the Intestate Succession Act[3] discriminated against her on the grounds of sexual orientation, marital status, gender, dignity and equality. Furthermore, that the law deals with parties to a same-sex life partnership and opposite-sex life partnership differently insofar as previous advances in law make provision for parties in a same-sex life partnership to inherit from one another through the Intestate Succession Act[4] even after the Civil Union Act 17 of 2006 was enacted allowing same-sex partners to marry. The court agreed with the arguments placed before it by the applicant and held that parties in a life partnership should be afforded respect and legal protection.
Additionally, in the Maintenance of Surviving Spouses Act,[5] the definition of a “survivor” does not include a heterosexual life partner. As a result, this exclusion denies parties to a heterosexual life partnership that undertook reciprocal duties of support the ability to claim spousal maintenance. Accordingly, the Constitutional Court held that the relevant provisions in both pieces of legislation were invalid and discriminatory and held further that a “partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support” be included wherever “spouse” is referred to.
Conclusion
Although the judgment was suspended to provide Parliament with an opportunity to remedy the constitutional deficiencies of the two pieces of legislation, it is evident that unmarried partners in a heterosexual life partnership who have undertaken reciprocal duties of support are now able to inherit from their partner’s estate. Therefore, knowing your rights as a partner, current legislation, and its effect on your loved ones is crucial. Consult with a legal professional to determine your legal position, rights and how various laws may affect you and your loved ones.
Contact an attorney at SchoemanLaw for your legal needs!
[1] Bwanya v Master of the High Court, Cape Town and Others (2021) ZACC 51
[2] 27 of 1990
[3] 81 of 1987
[4] 81 of 1987
[5] 27 of 1990
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