Partners in a permanent life partnership could now enjoy the same benefits as spouses when it comes to intestate succession.

 

The High Court in Cape Town recently decided a matter where a surviving partner, in a permanent life partnership, sought to declare certain sections of the Intestate Succession Act 18 of 1987 and Maintenance of Surviving Spouses Act 27 1990 unconstitutional. 

In Bwanya v Master of the High Court and others 2020 (12) BCLR 1446 (WCC) the Applicant alleged that she and the deceased had been partners in a permanent opposite-sex life partnership, with the same or similar characteristics as a marriage, in which they had undertaken reciprocal duties of support and had committed themselves to marrying each other. 

The deceased passed without leaving a valid will. The Applicant accordingly claimed against the estate and sought to be recognized as an heir in terms of the Intestate Succession Act. She further also sought maintenance from the estate in terms of the Maintenance of Surviving Spouses Act. 

The executor rejected the Applicants claims on the basis that the aforementioned acts does not make provision for opposite-sex partners in life partnerships. Since the Applicant and the deceased were not married, the Applicant could not inherit nor could she claim maintenance from the estate. 

The Applicant, wanting to inherit and receive maintenance like a spouse, approached the High Court for relief. She sought to have certain sections of the statutes declared unconstitutional and for such to include partners in opposite-sex partnerships. 

In Gory v Kolver NO 2007 (3) BCLR 249 (CC) and in Minister of Home Affairs v Fourie 2006 (3) BCLR 355 (CC) the Constitutional Court recognized that partners in a permanent same-sex partnership in which partners had assumed reciprocal duties of support should be treated the same as spouses when interpreting the Intestate Succession and Maintenance of Surviving Spouses Acts. This was done before same-sex partners could enter a civil union and be seen as married. 

The Applicant in these proceedings contended that the Acts unfairly discriminate against heterosexual partners in favor of same sex partners, especially now that same-sex partners could enter a civil union. 

As far as the challenge against the Maintenance of Surviving Spouse Act is concerned the High Court in this instance was bound by Constitutional Court’s ruling in Volks v Robinson. In this matter, the Court did not endorse the reading in of “opposite sex permanent life partner” into the act. The Court found that there is no legal mechanism available to depart from the Volks matter. The basis for Volks refusal was that there must be a duty of support imposed by law and not a mere contractual one. Since the Applicant and the deceased was not married, there was no lawful duty to support. 

With regards to the challenge against the Intestate Succession Act the Judge concluded that there was no reason not to read into section 1(1) of the act the words “or partner in a permanent opposite-sex life partnership in which the partners have undertaken reciprocal duties of support” following the word “spouse”. The matter thus succeeded in this aspect and it was ordered that Section 1(1) of the Intestate Succession Act is unconstitutional and invalid in so far as it excludes partners in opposite-sex life partnerships.