Landmark ruling allows Heterosexual life partners to inherit from each other without officially being married
by Kristijan Madjarevic
Introduction
According to the Intestate Succession Act[1], and Maintenance of Surviving Spouses Act[2], opposite-sex life partners could not inherit and/or claim maintenance respectively as they were not considered spouses in terms of these laws.
This right of inheritance however has been awarded to same-sex life partners. Prior to the promulgation of the Civil Unions Act[3], on 23 November 2006, the Constitutional Court handed down its judgment in Gory v Kolver[4] and extended the definition of a “spouse” as contained in the Intestate Succession Act, to include same-sex partners, even if the partnership was not formalised by marriage. When someone dies and does not leave a valid will‚ the Intestate Succession Act applies and divides a deceased’s estate between family members and spouses.
In effect the decision in Gory v Kolver amended the Intestate Succession Act before the Civil Unions Act was promulgated. From that seminal decision in Gory v Volker the right to intestate inheritance without the formality of marriage had been extended to same-sex life partners, but the judiciary however seem to overlook opposite-sex life partners, that is until recently.
Background
The applicant in the matter was in a permanent opposite-sex life partnership and her partner died without a will. In February 2014, the applicant met the deceased, and the two were soon in a whirlwind romance and during June 2014, the deceased asked the applicant to move in with him at his Camps Bay property.
At the time of the deceased’s death, the couple were engaged to be married for nearly two years and had been living in a permanent stable relationship while preparing to be married at a intended future date. Furthermore, the Court presented diary entries by the deceased, which showed the two had plans to start a business together and also had objectives of starting a family. The deceased conceded the applicant’s contribution of love, care, emotional support and companionship to their permanent domestic life partnership.
Court Application
The deceased died in April 2016, wherein his will bequeathed his estate to his mother who since predeceased him. Due to the applicant’s legal standing of being prohibited from inheriting anything from her partner’s estate, the applicant filed an application challenging the constitutionality of both the Intestate Succession Act and the Maintenance of Surviving Spouses Act, for wanting to acknowledge and incorporate heterosexual life partners who have undertaken reciprocal duties of support as spouses for the benefit of inheritance and maintenance respectively.
The Court’s Judgment
The Western Cape High Court in Bwanya v Master of the High Court and Others[5], passed down judgment on 28th of September 2020, in which the court declared that Section 1(1) of the Intestate Succession Act is unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent heterosexual life partnership from inheritance. Following the decision in Gory v Kolver, this marks the second time the same section of the same Act has been judicially challenged and declared invalid and unconstitutional.
Conclusion
The declaration of invalidity in relation to the Intestate Succession Act is vastly welcomed as it is an important development of the South African jurisprudence on the rights of opposite-sex permanent life partnerships, in particular, women. Often women in such relationships are susceptible and suffer discrimination when the relationship is terminated by death. The decision is an opportune expansion in progressing the rights of women to equality and dignity, particularly in relationships.
[1] Act No. 81 of 1987.
[2] Act No. 27 of 1990.
[3] Act No. 17 of 2006.
[4] Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20; 2007 (4) SA 97 (CC); 2007 (3) BCLR 249 (CC) (23 November 2006).
[5] Bwanya v Master of the High Court, Cape Town and Others (20357/18) [2020] ZAWCHC 111.(28 September 2020).