The recent Bwanya case

20 Apr 2022

The right of a surviving life partner in a permanent opposite-sex life partnership to inherit or claim maintenance

The recent Constitutional Court judgment of Bwanya v The Master and others (CCT 241-20) has substantially changed the law as it applies to the definition of “spouse” in the Intestate Succession Act, applying to a surviving life partner in a permanent opposite-sex life partnership.

Until this judgment, cohabiting opposite-sex couples did not enjoy the same rights as married couples. On that basis, I always advised clients that chose not to get married to conclude a cohabitation or life partnership agreement.

The Applicant and the deceased were, at the time of the deceased’s death, 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.

The Constitutional Court held that Section 1(1) of the Intestate Succession Act is unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of this Act and that the word “spouse” includes a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support.

The judgment also dealt with same-sex partners that cohabit permanently and maintenance claims, etc.

Earlier decisions protect ‘spouses’ in Hindu, Muslim and customary marriages.

Persons married according to Muslim rites are spouses for the purposes of inheriting or claiming from estates where the deceased died without leaving a will. ‘Spouse’ in Intestate Succession Act and the Maintenance of Surviving Spouses Act includes partners to Muslim marriages.

A spouse of a “marriage” by Hindu rites enjoys recognition by South African law for inheritance purposes. The word ‘spouse’ as used in Section 1 of the Intestate Succession Act includes the surviving partner to a monogamous Hindu marriage.

The Constitutional Court confirmed that the South African customary law rules relating to intestate succession are unconstitutional and discriminatory. The Court also confirmed that the entire statutory scheme governing deceased estates of black persons is unconstitutional and discriminates on the basis of race, birth and gender.

See also:

• Shacking up? You should have a Will or cohabitation agreement
• The legal effect of long term relationships – Cohabitation interpretation
• Intestate succession – What does it mean to die intestate?
• Cohabitation, engagement and the myth of the common law marriage

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)