Co-habitation and the Law of Succession: A Look at Same-Sex and Opposite-Sex Relationships in South Africa

 Introduction: The Evolution of Inheritance Rights for Cohabiting Partners

In South Africa, the legal rights of life partners—both same-sex and opposite-sex—to inherit from a deceased partner or claim maintenance from their estate have undergone significant changes. Historically, cohabiting partners who were not married were excluded from inheriting under the Intestate Succession Act 81 of 1987 and from claiming maintenance under the Maintenance of Surviving Spouses Act. This legal exclusion, particularly affecting same-sex couples, prompted court interventions to address discriminatory provisions in the law. The Constitutional Court’s decisions in Gory v Kolver and Bwanya v Master of the High Court played pivotal roles in shaping inheritance and maintenance rights for life partners, leading to amendments in the law through the Judicial Matters Amendment Act 15 of 2023.

The Legal History of Inheritance Rights for Same-Sex Partners

Gory v Kolver and its Impact on Same-Sex Life Partnerships

In the groundbreaking case of Gory v Kolver, the Constitutional Court addressed the rights of same-sex life partners to inherit under the Intestate Succession Act. This case revolved around Mark Gory, who sought to inherit the estate of his same-sex partner, Henry Harrison Brooks, who had died without a will in 2005. At the time, the law recognized only legal spouses as heirs under intestate succession, excluding same-sex life partners.

Gory and Brooks were in a permanent relationship and had even participated in a symbolic ceremony resembling a wedding to express their commitment to each other. Since same-sex couples could not legally marry before the enactment of the Civil Union Act in 2006, they were denied inheritance rights under the existing legal framework. The court ruled that this exclusion amounted to unfair discrimination on the basis of sexual orientation, violating section 9 of the South African Constitution, which guarantees equality.

To rectify this, the court read into the Intestate Succession Act the phrase “or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support” after the word “spouse.” This legal adjustment ensured that same-sex life partners could inherit from each other’s estates if they could prove a reciprocal duty of support during their relationship.

Although the Civil Union Act came into effect shortly after the Gory decision, the case remains significant as it established a legal precedent recognizing the rights of same-sex life partners to inherit under intestate succession, even in the absence of legal marriage.

The Legal Struggle for Opposite-Sex Life Partners

The Bwanya v Master of the High Court Case: Extending Rights to Opposite-Sex Life Partners

While same-sex life partners gained legal protections through Gory v Kolver, the legal status of opposite-sex life partners remained uncertain until the Bwanya case. In this case, the applicant, Ms. Bwanya, sought to inherit from her deceased opposite-sex partner, Mr. Ruch, who had passed away without a valid will, leaving his estate intestate. Bwanya and Ruch were in a committed life partnership where they had supported each other both financially and emotionally, and plans for traditional marriage negotiations had already been set in motion before his unexpected death.

The Western Cape High Court initially dismissed her claim, ruling that she could not be considered Ruch’s spouse because the legal definition of “spouse” under the Intestate Succession Act and the Maintenance of Surviving Spouses Act applied only to legally married individuals. Dissatisfied, Ms. Bwanya appealed to the Constitutional Court, arguing that the exclusion of opposite-sex life partners from these Acts was unconstitutional and discriminatory.

The Constitutional Court agreed, ruling that the failure to recognize the rights of opposite-sex life partners in permanent, supportive relationships was discriminatory and unconstitutional. The court ordered that the laws be amended to allow surviving opposite-sex life partners to inherit and claim maintenance, provided they could demonstrate a reciprocal duty of support within the relationship.

Legislative Changes Following the Bwanya Case

The Constitutional Court’s decision in Bwanya prompted significant legislative changes. Following the court’s ruling, the Judicial Matters Amendment Act 15 of 2023 was passed, and it came into effect on April 3, 2024. This Act amended both the Intestate Succession Act and the Maintenance of Surviving Spouses Act to include surviving partners from both same-sex and opposite-sex life partnerships. The updated law now recognizes partners in permanent life partnerships where reciprocal duties of support existed, allowing them to inherit and claim maintenance after a partner’s death.

The changes brought by this Act represent a crucial step toward equality for cohabiting partners in South Africa, ensuring that both same-sex and opposite-sex partners are treated similarly when it comes to matters of inheritance and maintenance after death.

Conclusion: The Current Legal Landscape for Cohabiting Partners

With the introduction of the Judicial Matters Amendment Act 15 of 2023, both same-sex and opposite-sex life partners in South Africa now have the right to inherit from their deceased partner’s estate and claim maintenance, provided that they can prove the existence of a reciprocal duty of support. This development addresses the historical discrimination faced by both groups and brings South African law closer to fulfilling the constitutional principle of equality.

Recommendations: Steps for Cohabiting Partners to Secure Their Rights

While these legal changes mark a significant advancement in the rights of cohabiting partners, it is strongly recommended that partners in permanent life partnerships take additional steps to safeguard their rights. These include:

1. Drafting a Valid Will: Both partners should ensure that they have a will clearly outlining their intentions for the distribution of their estate.
2. Formalizing the Relationship with a Partnership Agreement: A partnership agreement detailing the structure of the relationship, and the reciprocal support provided can help avoid disputes in the event of a partner’s death.

By taking these steps, partners can prevent legal challenges and ensure that their wishes are respected.