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A summary of the legal position on permanent relationships and the rights of surviving partners following the landmark ‘Bwanya ruling’ – Andi Hoole

The 2022 census revealed that there are around 4.7 million unmarried but cohabiting South Africans. A permanent life partnership, which is often referred to as a domestic partnership, is a relationship between two people of the same or opposite sex that are living together, in a permanent relationship, as if they are married, but are not. In South Africa the law did not afford life partnerships the same rights and recognition afforded to marriage.

In 2008 the Department of Home Affairs sought commentary on the draft Domestic Partnership Bill which would regulate such partnerships, however no further steps have been taken since to advance the Bill. As a result, the legal position in South Africa has been that where a party to a life partnership has failed to conclude a valid Will and subsequently passes away, the surviving life partner has no claim for inheritance or maintenance from their deceased partner’s estate.

In Bwanya v Master of the High Court, Cape Town (2021) ZACC 51 (“Bwanya”) the Constitutional Court was forced to re-examine the legal position of life partnerships and the rights of surviving partners to inherit and/or claim maintenance from the deceased estate. The Constitutional Court handed down judgment declaring certain provisions of the Intestate Succession Act, 1987 and the Maintenance of Surviving Spouses Act, 1990 to be unconstitutional.

The meaning of the Acts prior to the Bwanya ruling

The Intestate Succession Act (“ISA”) set out that if a person dies without a Will (intestate) their estate will be divided amongst their surviving spouse/s and their children, failing which their parents or siblings stand to inherit, but not life partners.

The Maintenance of Surviving Spouses Act (“MSSA”) states that if your spouse dies, you have the right to claim for maintenance against their estate. In Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC) the definition of ‘spouse’ was expanded by the Constitutional Court to include a ‘partner in a permanent same-sex life partnership’ with reciprocal duties of support. An unmarried homosexual partner therefore has a claim as an intestate heir, but the definition of ‘spouse’ was never amended to include unmarried heterosexual life partners, until the Bwanya ruling.

Facts of the case

Ms Bwanya, a domestic worker, and Mr Ruch, a multimillionaire, were engaged to be married. They had been together for around 2 years, lived together, planned to start a cleaning business together and have children. They were in a permanent life partnership and there was clear evidence of reciprocal support; emotional on her side and financial on his. The couple planned a trip to Zimbabwe to commence lobola negotiations when suddenly Mr Ruch passed away. Mr Ruch had not updated his Will to include Ms Bwanya and had bequeathed his entire estate to his predeceased mother, effectively dying intestate.

Ms Bwanya subsequently lodged a two-fold claim against Mr Ruch’s estate – firstly to inherit in terms of ISA and, secondly, to claim maintenance under MSSA. Ms Bwanya contested her exclusion on the basis that, if it had been a same-sex relationship, she would have had an automatic claim to his estate under ISA. She argued that specific sections of ISA and MSSA discriminated against her on the grounds of sexual orientation, marital status, gender, dignity and equality. The Western Cape High Court cited evidential reciprocal duties of support when it ruled with Ms Bwanya on the case, referring the matter to the Constititonal Court.

Judicial Matters Amendment Act 2023

The Constitutional Court agreed declaring the definition of ‘spouse’ under both Acts to be unconstitutional and held that a ‘partner in a permanent life partnership in which partners have undertaken reciprocal duties of support’ be included wherever ‘spouse’ is referred to. The Court further held that the definition of “survivor” under the MSSA must be read with the following: “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.”

On 3 April 2024 President Cyril Ramaphosa signed the Judicial Matters Amendment Act into law. Clauses 14 and 15 of this Act amend the relevant sections of ISA and MSSA to include the new definitions of “spouse”, “marriage” and “survivor” to give effect to the Constitutional Court’s order.

Questions still unanswered

  1. What constitutes reciprocal duties of support?

South Africans in life partnerships only have the right to claim against the estate of their deceased partner where the parties can provide evidence that they have undertaken reciprocal duties of support.  The Constitutional Court gave the following examples:“…such as loyalty and sympathetic care and affection, concern…as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or in a support-generating business…To my mind these features are not foreign to permanent life partnerships….In all these respects, permanent life partnerships are very much akin to marriages.”

However, there are no clear guidelines as to what exactly will be considered as reciprocal duties of support, and this will most likely be decided by the courts on a case by case basis going forward.

  1. What if there are heirs involved?

The Bwanya case was straight-forward as Mr Ruch had no other heirs, however no consideration was made for a situation where the deceased life partner has other heirs. The amendments to the Acts may mean that a life partner’s intestate and maintenance claims rank equally to a claim by an heir. We will again have to wait and see how the courts rule on this matter.

  1. What happens in the case of polygamous life partnerships?

South Africa recognizes polygamous relationships, however the ruling did not deal with a matter where multiple life partners have a claim. The Judicial Matters Amendment Act amended the definition of ‘spouse’ under the ISA to include a life partner, however ISA also makes reference to multiple ‘spouses’. It would be thought that polygamous life partners would have a claim in terms of ISA, but there has not been any ruling on this matter to date.

The importance of estate planning

In light of the Bwanya Ruling and the passing of the Judicial Matters Amendment Act, it is pivotal that people in life partnerships are aware of their rights as a partner and plan accordingly in order to avoid uncertainty and prevent unintended consequences. It is strongly advised that partners draw up a cohabitation agreement, or domestic partnership agreement, which regulates financial and legal rights and responsibilities, and, most importantly, draft and regularly update their Wills so there is no uncertainty around each person’s wishes.

You may contact me, Andi Hoole, at andi@caf.co.za or on 021 785 5945 for any further information or assistance regarding life partnerships or estate planning.

Written by Andi Hoole

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. Errors and omissions excepted (E&OE).