Laura du Preez | 07 February 2022
Laura du Preez has been writing about personal finance topics for more than 20 years, including eight years as personal finance editor for two leading media houses.
The Constitutional Court has ordered parliament to amend two laws to recognise the right of a surviving life partner in any relationship to inherit and claim maintenance after the other partner dies.
The court ruling late last year gave parliament 18 months to amend the Intestate Succession Act and the Maintenance of Surviving Spouses Act to ensure that a life partner in a permanent relationship can benefit from their partner’s estate, even if that partner fails to make a will or provide maintenance.
The case arose after Jane Bwanya challenged the constitutionality of the Intestate Succession Act and the Maintenance of Surviving Spouses Act for discriminating on the basis of marital status.
Bwanya and Anthony Ruch had been living together as a couple for two years, Ruch had proposed and the pair were making arrangements to marry when Ruch died unexpectedly in 2016.
As Ruch had not made a will, his estate was dealt with in terms of the Intestate Succession Act.
The Act provides for who will inherit when a person dies without a will, including, among others, for a surviving spouse. Read more: Who will inherit if I die without a will?
Although there is no definition of a spouse in the Act, the word spouse has always been interpreted in South African common law to have its usual meaning of a spouse in a marriage, which meant Bwanya could not inherit the home she and Ruch shared and his assets amounting to about R3 million.
Bwanya challenged the executor’s decision and the Constitutional Court’s decision on the matter will ultimately be to her benefit. However, there are lessons to be learnt from the struggles Bwanya and others had in challenging the Acts in an attempt to maintain their lifestyles after losing their partners.
Smart About Money asked Louis van Vuren, CEO of the Fiduciary Institute of Southern Africa, more about what the judgment means for those who are in partnerships without being either married or in a civil union.
Q: Why is this case important for South Africans?
A: There are more than three million South Africans in life partnerships and more than 75% of South Africans do not have a will. This means thousands of life partners could have potentially found themselves in similar situations to that of Jane Bwanya, and stand to benefit when the Acts are amended.
Q: The constitutionality of the Intestate Succession Act has been challenged before. What was the outcome of that case?
A: In 2006, the interpretation of the word “spouse” was challenged by the surviving life partner in a same-sex relationship on the grounds that it discriminated on the basis of sexual orientation. The man was set to lose the home he and his partner had shared to his partner’s parents.
In that case (Gory v Kolver NO), the Constitutional Court ordered that life partners in a same-sex relationship must be included as spouse in the Intestate Succession Act and will inherit when the life partner dies intestate. This did not apply to life partners in heterosexual relationships, because at the time the case was heard same-sex partners could not get married or formalise their relationship in any way.
Q: The Maintenance of Surviving Spouses Act was also challenged previously. What was the outcome of that case?
A: In 2005, the constitutionality of this Act was challenged in Volks NO v Robinson.
Ethel Robinson lived with Aaron Shandling for more than 15 years, but they never married. When Shandling died in 2001 he left Robinson R100 000, but the residue of his estate, some R240 000, was left to his adult children who had emigrated to the US.
Robinson who had relied financially on Shandling, asked the Constitutional Court to order the executor of the estate, Richard Volks, to admit her claim for future maintenance against the estate under the Maintenance of Surviving Spouses Act.
The court, however, decided the Act could not be interpreted to include permanent life partners.
It said that the law may, in appropriate circumstances, accord benefits to married people which it does not accord to unmarried people.
It said heterosexual couples had a choice whether or not to marry and if they chose to marry, they agreed to the future obligations that marriage entails.
Co-habiting couples could only agree to future obligations by agreement, the court said.
Q: Did this previous challenge to the Maintenance of Surviving Spouses Act create a legal hurdle for Jane Bwanya?
A: Yes. Bwanya’s case was initially heard by the Cape High Court. That court said it could not find that the provisions of the Maintenance of Surviving Spouses Act were unconstitutional, because it was bound by the Constitutional Court’s 2005 decision in Volks NO v Robinson.
Bwanya took the High Court decision on appeal saying the Acts discriminated against life partners in heterosexual relationships and this violated her right to equality and dignity. This forced the Constitutional Court to consider the matter again and this time it came to a different decision.
The court noted that many vulnerable women are life partners who do not have the choice to marry.
It therefore concluded that not extending benefits to these life partners would discriminate on the grounds of marital status.
Q: Why did the constitutional court rule differently in Bwanya’s case to the way it did in Volks NO v Robinson?
A: The court was deeply divided over this. The majority decision, by just six out of 10 judges, does not say the decision in the Volks case was wrong – it says the facts should determine whether there are duties of support in relationships.
The facts in Bwanya’s case were different to those of Robinson in the Volk’s case. Robinson and Shandling lived together for many years without marrying, whereas Bwanya and Ruch planned to marry.
Q: The court gave parliament 18 months to change the law. What does this mean for any surviving life partner in Bwanya’s situation in the meantime?
A: If you find yourself in a similar position to that of Jane Bwanya, you should ask the executor not to finalise winding up this estate until parliament has amended the legislation.
The executor should agree not to wind up the estate in this case, because proceeding could expose the estate to an application like Bwanya’s from the surviving life partner.
Q: Once the laws have been amended, life partners will have the right to inherit and claim maintenance from a deceased life partner’s estate. Does this mean life partners can safely live together without making a will?
A: No, the surviving spouse or life partner of a person who dies intestate can only inherit the entire estate if there are no children. Read more: Who will inherit if I die without a will?
And when you die intestate, the estate also takes longer to process. Read more: Why is it important to make a will?
Also remember the amended Acts will only protect a life partner if a partnership is dissolved as a result of death.
Ideally life partners should have a contract in place relating to maintenance if the relationship ends in a separation.
If you go to the trouble of getting such a contract, however, you may want to consider formally entering into a civil union, which has the same legal effect as a marriage and automatically extends legal protection both partners.
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