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Pillars of Justice

Exploring the Legal Implications of Cohabitation: How South African law fails unmarried couples

As we close out the month of love, there is still one discussion to be had about the law and love. How does the law regulate the lives of those who live together but who are not married? The traditional civil marriage is no longer the only option available to couples in South Africa. Partners may decide to get married in terms of customary law or in terms of the Civil Unions Act or the Marriage Act. The law, however, has been slow to recognize the relationship of partners in a permanent cohabitation arrangement.

Draft legislation in respect of domestic partnerships exists, but the Draft Partnership Bill has not been advanced since 2008. A domestic partnership is a relationship between two people who are living together, as though they are married, but are not. This will include relationships between same- and opposite-sex couples.

This gap in the law inevitably leads to a large portion of the population being excluded from the rights and obligations which naturally flow from a recognized marriage relationship, even if the people involved in the relationship act no differently toward each other than a married couple. It must be stated very clearly, that South African law does not recognize the concept of a common law marriage. No amount of time living together automatically translates to a marriage.

This shortcoming in the law usually only affects partners in permanent relationships at the dissolution of the relationship, whether it be by death or mutual decision. Especially where one partner passes away, the financial consequences involving inheritances and maintenance can turn especially tricky.

Many of the disadvantages alluded to above flow from the legal definition of the word ‘spouse’ and how it is defined in the pieces of legislation that govern inheritance and maintenance. The differentiation between married, unmarried, same-sex and opposite-sex partners has been the subject matter of many cases over the past few decades, as the Constitution provides that unfair discrimination based on marital status and sexual orientation is prohibited.

The word ‘spouse’ has been expanded several times to provide for people in different permanent relationships. For example, even though Islamic marriages are not formally recognized, the Intestate Succession Act provides that a spouse in an Islamic marriage is also included in the definition of ‘spouse’. The Estate Duty Act and the Income Tax Act also include permanent life partners, whether it be same-sex or opposite-sex, in the definition of ‘spouse.’

This article will briefly look at the impact of the provisions of the Intestate Succession Act on partners in a permanent relationship by way of the case of Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51.

Ms Jane Bwanya lived with her partner in a permanent relationship. They were due to commence lobola negotiations and conclude a marriage, but unfortunately her partner passed before they could commence with the arrangements. Her partner left a will that nominated his mother as his only heir. However, his mother had predeceased him.

Ms Bwanya instituted 2 claims against her late partner’s estate – one for maintenance and the other for inheritance from his estate. Both claims were rejected by the executor of the estate, since Ms Bwanya was not considered to be a spouse to the deceased, as per the definition of spouse in the relevant legislation. She then challenged the constitutionality of the Acts in the High Court and was successful in her challenge of the Intestate Succession Act (ISA hereafter) in the High Court.

When the matter appeared before the Constitutional Court, Bwanya contented that the definition of ‘spouse’ in the ISA unfairly discriminates against her and others in her situation, based on the grounds of gender, marital status, and sexual orientation. She also argued that the ISA differentiates between surviving same-sex and opposite-sex life partners. This is due to the decision in the 2007 Constitutional Court case of Gory v Kolver, where the court ordered that the definition of ‘spouse’ be interpreted to include a partner in a permanent same-sex life partnership where the partners have undertaken reciprocal duties of support.

Madlanga J in the majority judgment emphasized that permanent life partnerships are a legitimate family structure and are deserving of respect and should be entitled to legal protection. The High Court’s declaration of invalidity of the definition in the ISA was confirmed. The Constitutional Court also recognized that the definition of ‘survivor’ in the Maintenance of Surviving Spouses Act was unconstitutional and invalid in so far as it excludes people in Ms Bwanya’s situation.

After this case, the surviving life partner in a permanent opposite-sex life partnership can inherit or claim maintenance if the partners undertook reciprocal duties of support to each other.

It is clear from the Bwanya case as well as those that came before it, that there is a general movement towards inclusivity towards all different kinds of relationships, regardless of whether the arrangement has been formally recognized by legislation. However, a practical hurdle exists in determining when exactly a relationship between two persons stops being casual and is intended to be permanent in the sense that it also attracts the rights and obligations naturally associated with a marriage relationship. In the case law examples that are available, all the couples were engaged or about to become engaged.

To make clear a couple’s intentions with regard to their life partner, it is of the utmost importance that an updated, valid will is available when a partner passes. This will prevent many heartbreaks and long legal battles regarding the interpretation of definitions. In an effort to be unambiguous and clearly set out the duties of the partners towards each other, a cohabitation agreement can also be drawn up.

Contact JJR Inc. to assist you with putting your affairs in order through proper estate planning. We also assist with notarial agreements of cohabitation.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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