Jun 7, 2022 | News

In a landmark judgment by the Constitutional Court, which was handed down on 31 December 2021, the Constitutional Court developed South African family law and law of intestate succession further, to the extent that surviving partners in life partnerships, who are not formally married, will enjoy the same rights regarding claims for maintenance and intestate succession as a surviving spouse of a deceased.

The judgment in the matter of Bwanya v Master of the High Court, Cape Town and Others (CCT 241/20) [2021] ZACC 51; 2022 (4) BCLR 410 (CC); 2022 (3) SA 250 (CC) (31 December 2021) was handed down on new years’ eve after the matter was argued in February 2021.

Ms. Bwanya and a certain Mr. Anthony S Ruch, were involved in a lifelong relationship since 2014 that comprised most, if not all, of the characteristics of a marriage. By October 2015 the partners were contemplating “cementing the relationship with a baby”.   In November 2015 Mr. Ruch proposed to Ms. Bwanya which she gladly accepted.   However, on the 23rd of April 2016, Mr. Ruch unexpectedly passed away and, in his will, nominated his mother as the sole heir to his estate.   His mother had, however, already passed away in 2013.

Ms. Bwanya, who had been cared for and maintained by Mr. Ruch before his death, filed a claim with the Master of the High Court for maintenance in terms of the Maintenance of Surviving Spouses Act and for an inheritance in terms of the Intestate Succession Act. The Master subsequently applied the principle of Volks N.O. v Robinson [2005] ZACC 2; 2009 JDR 1018 (CC)[2005] ZACC 2; ; 2005 (5) BCLR 446 (CC) prohibiting partners living together as if they were married from having a claim in terms of the abovementioned laws.

Ms. Bwanya successfully challenged the decision by the Master of the High Court in Cape Town, in the Western Cape Division of the High Court.

The High Court found that section 2(1) of the Maintenance of Surviving Spouses Act and section 1(1) of the Intestate Succession Act was unconstitutional as it unlawfully discriminated against persons based on marital status.

Since findings of High Courts on the unconstitutionality of Acts of Parliament need to be confirmed by the Constitutional Court, arguments in the confirmation proceedings were heard on 16 February 2021.

The Constitutional Court ruled in favour of Ms. Bwanya stating that section 1(1) defining the term “survivor” should now also include the surviving partner of a permanent life partnership where the partners took reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate. “Spouse” will include a person in a permanent life partnership where the partners undertook reciprocal duties of support. “Marriage” will include a permanent life partnership in which the partners undertook reciprocal duties of support.

The Constitutional Court ordered that section 1(1) of the Intestate of Succession Act giving the definition of the term “spouse” should also include the words “…or a partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support”. The Constitutional Court granted Parliament 18 months during which the Maintenance of Surviving Spouses Act , as well as the Intestate of Succession Act, are to be amended.

In practice this means that it is no longer strictly required to enter into a marriage in terms of the Marriage Act 25 of 1961 or a civil union in terms of the Civil Union Act 17 of 2006 to be eligible for maintenance of some inheritance when your permanent life partner passes away.

A surviving partner in such a life partnership will however be required to show that during the time of the permanent life partnership reciprocal duties of support were taken by the partners.


Wian Spies