By Dintoe Daniel Kgole
In circumstances where partners choose not to be married, but to live together in a romantic relationship, they may enter a permanent life partnership where they undertake to support each other. There is no law that regulates the consequences of these kinds of relationships in South Africa, despite many families in this country being established through these relationships. In Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC) (hereafter Bwanya) the Constitutional Court recognised the importance of families that are established outside the bounds of marriage. In particular, this court cautioned against using the institution of marriage to devalue and undermine other institutions which are fundamental to the creation of other categories of families. Most importantly, this court recognised families that are established by persons who do not wish to marry but to be party to permanent life partnerships. The court emphasised that those who conclude these types of partnerships and create their own families where they mutually and reciprocally support each other, should be offered legal protection when one of them dies.
Upon the death of one of the parties, opposite sex parties to a life partnership were initially not allowed to claim maintenance from their deceased’s partner’s estate. Based on the common law duty of support, the legislature promulgated the Maintenance of Surviving Spouses Act to restrict maintenance claims from deceased estates to persons who were married to the deceased. This Act was specifically promulgated to provide for the reasonable maintenance needs of parties to a marriage that is dissolved by the death of one of them. This effectively excluded parties to the opposite-sex life partnership.
The Majority Judgment in Bwanya recognised that many South Africans were cohabiting, and the number of cohabitations were increasing. Further that the definition of the family changes as social practices and traditions change. For this reason, the majority, adopted Sachs J’s reasoning in Volks that where two people lived together, raised their children together, and created a family where they support each other they should not be treated like strangers when their partnership is dissolved by death merely because they were not legally married. The majority confirmed that permanent life partnerships are intimate relationships that are meant to last until the death of one or both of the partners, hence are very much akin to marriages. Central to the majority’s reasoning is that parties to life partnerships should be allowed to claim maintenance from their deceased’s partners’ estates, hence it held that the extent to which the Maintenance of Surviving Spouses Act prevented them from claiming maintenance, amounted to unfair discrimination on marital status, thus unconstitutional.
In light of the Bwanya case, it is clear that as long as the surviving partner can demonstrate that he or she was in a life permanent partnership with the deceased, he or she will be able to claim maintenance from the deceased’s estate. The court further held that the definition of the word ‘spouse’ in section 1 (1) of the Intestate Succession Act should be interpreted to include partners in permanent life partnerships where they have undertaken reciprocal duties of support.
If you are in a life permanent partnership and your partner had sadly passed away and the executor or the family members of your spouse are preventing you from either inheriting intestate or claiming maintenance as a surviving spouse, do not hesitate to contact us for assistance. We assist surviving life partners to enforce their rights when seeking to claim maintenance or inheritance from the estates of their deceased’s partners. Particularly when harassed by the deceased’s extended family members.
