A Court revisits the legal position of permanent relationships and the rights of surviving partners when one of them passes away.

No matter how long a couple lives together as a married couple without actually being married (cohabitation), South African law does not recognise that relationship as equal to a marriage. This means that couples in permanent relationships do not get the same protection in law as married couple, for example, to inherit from a deceased spouse if s/he did not have a valid Will.

In Bwanya v Master of the High Court, Cape Town and Others (2021) ZACC 51, the Constitutional Court had to revisit the legal position of permanent relationships and the rights of surviving partners of that relationship to inherit and/or to claim maintenance from the deceased estate. 

Facts of the case

Ms. Bwanya and Mr. Ruch (“the deceased”) met in 2014. They started a relationship and she moved in with him. Ms. Bwanya worked as a domestic worker, however, she and the deceased intended on starting a cleaning business together. During their relationship, they undertook reciprocal duties of support where the deceased took care of them financially, while Ms. Bwanya provided love, care and emotional support.

They planned to start a family together and the deceased even asked Ms. Bwanya to marry him. During April 2016, the deceased passed away unexpectantly before they could get married. He had no children and was an only child. His only nominated heir in his Will also passed away, meaning that the Intestate Succession Act 81 of 1987 would apply as if there was no Will. Seeing as Ms. Bwanya was not married to the deceased, she could not be considered as a “surviving spouse” and was not entitled to inherit from the estate.

Ms. Bwanya's claims against the deceased estate

Ms. Bwanya lodged two claims against the deceased's estate. The first claim was to inherit under the Intestate Succession Act and the second claim was to be able to claim maintenance from the deceased estate under the Maintenance of Surviving Spouses Act 27 of 1990.

She argued that she should be considered as the “surviving spouse” as the deceased was her life partner, they lived together as though they were a married couple, they were engaged and they both undertook reciprocal duties of support. Unfortunately, the executor rejected both the claims as they only apply to married couples and not partners in permanent relationships (life partnerships).

What did the Constitutional Court say?

Before the Constitutional Court, Ms. Bwanya argued that relevant sections of the Intestate Succession Act and the Maintenance of Surviving Spouses Act discriminate against her and women in her position on the grounds of gender, sexual orientation, marital status, dignity and equality.

Ms. Bwanya further argued that earlier developments in law allow for couples in a same-sex relationship to inherit from each other under the Intestate Succession Act without being married. This indicates that the law treats surviving opposite-sex life partners differently to surviving same-sex life partners.

The Constitutional Court agreed with Ms. Bwanya and held that recent developments of the common law require partners in a permanent relationship to receive respect and be afforded legal protection.

The Constitutional Court declared the relevant sections discriminatory and invalid. It subsequently held that wherever reference is made to “spouse” in the mentioned two pieces of legislation, it should also include a “…partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support”.

What does this judgment mean?

In essence, this judgment means that partners in a permanent relationship who live together as a married couple and who have reciprocal duties of support, will be able to inherit and claim maintenance from a deceased estate in the same manner a spouse from a marriage can.

The Constitutional Court made the following references to what may possibly be considered as reciprocal duties:

“…such as loyalty and sympathetic care and affection, concern…as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or in a support-generating business…To my mind these features are not foreign to permanent life partnerships….In all these respects, permanent life partnerships are very much akin to marriages.”

However, there are no clear guidelines as to what exactly will be considered as reciprocal duties of support and hopefully the legislature will soon provide some clarity. The safest thing to do if you do find yourself in permanent life partnership is to ensure that you and your partner have valid Wills in place.

This judgment is not in effect yet as the judgment was suspended for 18 months to afford Parliament an opportunity to cure the constitutional defect.

This matter illustrates that while the law has been developing in respect of customary marriages and same-sex marriages, there seems to be an oversight in respect of relationships between two people in a permanent relationship who are living together as if they are married.

One can argue that the lack of development is due to the misconception that after a period of time there is a common-law marriage that exists. Whatever the reason may be it has been a difficult issue to resolve and this judgment provides hope for future developments in respect of permanent relationships. 

 

Did you know…South African law does not recognise the so-called “common law marriage”.