Shacking up? You should have a Will or cohabitation agreement

17 Jan 2022

These days, before (or instead of) getting married, many South Africans are living together, in permanent life partnerships. Although the daily lives of married couples and couples living in permanent life partnerships may, on the face of it, appear to be the same, or very similar, these two types of relationships have very different legal rights, obligations, and consequences.

This can result in unintended issues arising, especially if the relationship comes to an end, either through separation, or the death of one of the life partners. The Constitutional Court is trying to change the legal consequences of permanent life partnerships on two fronts, namely: (i) inheritance in terms of the Intestate Succession Act, and (ii) maintenance under the Maintenance of Surviving Spouses Act, and handed down judgment in this regard on 31 December 2021 in the Bwanya v Master of the High Court, Cape Town case.

Although Ms Bwanya and Mr Ruch were not married, they lived together in a committed romantic relationship, which essentially functioned as a marriage. Two months before their lobola negotiations commenced, Mr Ruch unexpectedly passed away. Mr Ruch had nominated his mother as the sole heir to his estate; however, as she had predeceased him, the Intestate Succession Act was applicable to the division of his estate.

Ms Bwanya lodged claims for inheritance and maintenance against Mr Ruch’s estate, both of which were rejected by the executors, as the Intestate Succession Act and the Maintenance of Surviving Spouses Act only confer benefits on married couples or on a ‘spouse’, as defined, and not on couples in permanent life partnerships. Ms Bwanya approached the High Court, and then the Constitutional Court, to challenge the constitutionality of her exclusion from receiving benefits under these Acts.

The Intestate Succession Act, which deals with the estates of persons who die without valid Wills, provides that if such a person is only survived by their spouse, then the spouse will inherit the entire estate. In this Act, although ‘spouse’ refers to married persons and persons in same-sex permanent life partnerships who have undertaken reciprocal duties of support, it does not include heterosexual permanent life partners who have undertaken reciprocal duties of support. As Ms Bwanya and Mr Ruch were of opposite sexes, she did not qualify as a ‘spouse’ under the Act, and was not entitled to inherit his estate.

In terms of the Maintenance of Surviving Spouses Act, surviving spouses who cannot support themselves are entitled to lodge maintenance claims against the estates of their deceased spouses. The Act defines ‘survivor’ as the surviving spouse in a marriage dissolved by death, but does not define ‘marriage’ or ‘spouse’. As Ms Bwanya was not married to Mr Ruch, she did not qualify as a ‘survivor’ under the Act, and was not entitled to receive maintenance from his estate.

Ms Bwanya challenged the constitutionality of her disqualification to benefit under these Acts, on the basis of gender, sexual orientation and marital status, and argued that persons in permanent life partnerships are being deprived of their right to equal protection and benefit of the law, and that their right to dignity was being violated. The Constitutional Court found these provisions to be unconstitutional and invalid, and ordered that they be read to include persons in permanent life partnerships. The order has, however, been suspended, for a period of 18 months, to allow Parliament to cure the constitutional defects in the Acts.

Although this may be seen by some as a step in the right direction, the dissenting judgement raised certain practical concerns. As life partnerships are not legally regulated, and there are no set requirements which must be fulfilled before a permanent life partnership comes into being, industry will be faced with the practical difficulty of establishing whether a permanent life partnership has been established, and if the parties intend certain legal consequences of a marriage to apply to their relationship.

Individuals (especially unmarried people in committed relationships) can prevent uncertainty, and avoid any unintended consequences, in respect of their estates, by executing Wills which clearly articulate their intentions and/or entering into cohabitation agreements which clearly reflect their intention to be in a permanent life partnership. Wills should be updated to reflect any changes to the individuals’ status and intentions.

See also:

• Cohabitation, engagement and the myth of the common law marriage
• The legal effect of long term relationships – Cohabitation interpretation
• Marrying a foreigner – How to make it official
• Intestate succession – What does it mean to die intestate?

(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.)