“SURVIVING SPOUSE” TO INCLUDE PERMANENT LIFE PARTNERS

In the matter of Bwanya v The Master of the High Court, the applicant and the deceased lived together in a committed romantic relationship. Two months before they were to commence lobola negotiations and enter into marriage, the deceased passed away. The deceased left a Will nominating his mother as the only heir to his estate. His mother, however, had predeceased him, and his estate therefore had to devolve according to the intestate laws of succession.

The applicant, and life partner of the deceased, lodged two claims against the estate, the first in terms of the Intestate Succession Act (ISA) for inheritance and the second claim was in terms of the Maintenance of Surviving Spouses Act (MSSA) for maintenance.

Even though the applicant and the deceased were never legally married, the deceased and the applicant were considered to be life partners as they had been living together in a permanent, stable and intimate relationship and were on the verge of concluding a marriage and starting a family. In essence, the applicant and the deceased had undertaken reciprocal duties of supporting one another financially.

The executor of the deceased’s estate rejected both of the claims on the basis that the ISA and MSSA referred to married couples only and not to partners in permanent life partnerships.

The applicant challenged the constitutionality of both the ISDA and the MSSA before the High Court. The High Court declared Section 1(1) of the ISA as unconstitutional but rejected the possible unconstitutionality of Section 1 of the MSSA.

The applicant then applied to the Constitutional Court and contended that Section 1(1) of the ISA unfairly discriminated against her and other women who had found themselves in a similar situation and urged the Constitutional Court to confirm the High Court’s declaration of constitutional invalidity of Section 1(1) of the ISA. The Constitutional Court upheld this decision.

The applicant further argued that the Constitution requires the extension of maintenance under the MSSA to survivors in other forms of relationships, including permanent heterosexual life partnerships, where partners have undertaken duties of support of one another.

The Constitutional Court referring to the MSSA held that it had no power to nullify any laws and nor did it possess the competence to extend its scope to cover surviving partners in permanent life partnerships who are in need of spousal support after the death of their life partner.

It held further that the rights of these surviving partners must now be clearly defined in law and that it would be appropriate to refer the matter to Parliament to consider passing new legislation addressing the affairs of permanent life-partnerships.

With family structures in South African becoming more and more diverse, the Bwanya decision will set the tone for matters involving life partnerships and unmarried polygamous couples with regard to inheritance and spousal maintenance. Members of the public will now start to place pressure on the Courts in South Africa and the legislature to start recognising these diverse family structures.