Law of succession: ConCourt extends definition of 'spouse' to include life partners

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The Court mentioned in its judgment that opposite-sex life partners had the Marriage Act 25 of 1961 available to them should they wish to solemnise their union whereas, during the subsistence of the applicant’s same-sex partnership, no similar legislation was in place. The Civil Union Act 17 of 2006 which allowed same-sex marriages was only promulgated on 30 November 2006.

Opposite-sex life partners

The legal position concerning opposite-sex life partnerships remained undecided and it was a matter of time before the courts would decide on this pertinent issue.

In the case of Bwanya v Master of the High Court, the applicant, Jane Bwanya, approached the Western Cape High Court claiming that she should be considered to be the surviving spouse of the late Anthony Ruch in terms of the Intestate Succession Act and the Maintenance of Surviving Spouses Act.

The late Ruch had executed a valid Will nominating his mother as his sole heir; however, his mother had predeceased him, which left his estate intestate and Bwanya claiming to be his sole intestate heir.

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Bwanya presented evidence that she and the late Ruch were in a committed life partnership where there was reciprocal support both financially and emotionally, and commencement of labola negotiations would have taken place had Ruch not unexpectedly passed away.

The High Court rejected Bwanya’s claims on the basis that the definition of spouse referred to in the aforementioned Acts pertain to the parties in legally recognised marriages. Bwanya consequently approached the Constitutional Court, challenging the validity and constitutionality of the definition “spouse” in both of those Acts.

The applicant sought to have the definition of “spouse” in the Intestate Succession Act amended, arguing that the existing definition unfairly discriminated against her and opposite-sex life partners on the grounds of gender, marital status, and sexual orientation.

The Constitutional Court held that the exclusion of opposite-sex life partners from inheriting under the Intestate Succession Act and claiming maintenance under the Maintenance of Surviving Spouses Act was unjustified discrimination and unconstitutional, and that the legal position must be remedied.

Definition of ‘spouse’

The Court ruled that both Acts be amended accordingly. The definition of “spouse” in the Maintenance of Surviving Spouses Act is to be amended to read:

and includes the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate.

The definition of “spouse” in the Intestate Succession Act must include

a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support.

Following the monumental judgment handed down in the Bwanya case, the Judicial Matters Amendment Act 15 of 2023 was promulgated, effective from 3 April 2024 which amended both Acts as directed by the Court.

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Proof of support

In both same-sex and opposite-sex life partnerships, the survivor of the life partnership needs to prove that a reciprocal duty of support existed.

It is therefore strongly suggested that to avoid any uncertainty, unnecessary court costs and stress, each partner should have a valid Will clearly stating their after-death intentions and the partnership should have a partnership agreement detailing the structure of their permanent life partnership.

This will ensure that spousal benefits will pass to the survivor, if so desired, and it will be highly unlikely that this could be challenged.