By David Thomson, 5 April 2022
This may have major implications for you if you’re one of the 3.5 million cohabiting South Africans without a ring on your finger. It could mean your partner has an automatic claim to inherit a substantial share of your estate should you pass away, even if you have not been together for very long. Are you sure this would be your last and final wish? There’s never been a more important moment to draft a will and do some proper estate planning.
Following the landmark ‘Bwanya ruling’ by the Constitutional Court, Parliament has 18 months to amend the Intestate Succession Act and Maintenance of Surviving Spouses Act. This is being heralded as a major victory for the inheritance rights of life partners. But right now, it could also cause a lot of confusion, says David Thomson, Senior Legal Adviser at Sanlam Trust.
Before the Civil Union Act of 2006 came into effect, same-sex couples could not legally marry, so were excluded from the definition of ‘spouse’, and thus disqualified as intestate heirs. In the Gory vs Kolver case of 2007, this was deemed unconstitutional, and the definition of ‘spouse’ was extended to include a ‘partner in a permanent same-sex life partnership’ with reciprocal duties of support. In a nutshell? An unmarried same-sex partner now had an automatic claim as an intestate heir.
Same-sex couples can now marry, but the definition of ‘spouse’ was never amended to include unmarried opposite-sex life partners. Until the Bwanya case…
The Bwanya case is causing the definition of a spouse to undergo scrutiny once again. Jane Bwanya was about to marry multimillionaire Anthony Ruch, when Ruch passed away. Lobola was being discussed and there was evidence of reciprocal support – financial on his side and emotional on hers. The pair were cohabiting and had plans to start a cleaning business together. They’d been dating for two years and wanted to start a family.
Ruch left everything to his mother in his will, which he never updated to include Bwanya. His mother passed away before him, and he had no heirs – effectively he died intestate. Bwanya contested the exclusion, on the basis that if it had been a same-sex relationship, she would have had an automatic claim to his estate, based on the Intestate Succession Act. She was also aggrieved at the rejection of her maintenance claim by the executor. She applied to the Western Cape High Court for relief and obtained an interdict preventing the executor from winding up the estate.
Based on the evidence of reciprocal duties of support, the High Court ruled with Bwanya and referred the matter to the Constitutional Court. The Con Court agreed and declared the definition of ‘spouse’ unconstitutional, but suspended the order pending changing of the law by Parliament.
Thomson says, “This is a massive change; it throws everything on its head and stands to alter the law of marriage completely. It may change two very important acts we’ve had in our law for many, many years. We must look at fairness; what is equitable? Should people living together be tasked with the same obligations as those who have chosen to marry? Should they be treated as if they’re in a partnership arrangement?
“These changes could be quite alarming for people who are just living together. Suddenly, things get a lot more serious. Many may start asking what they need to do and whether they want the other person to inherit.”
Thomson says that in a country where 70% to 80% of people do not have a will, the prospective changes have big ramifications. They could also cause confusion. Parliament has 18 months to amend the acts, but it could take even longer. This could cause serious delays in winding up estates. Some of the prospective ‘complications’ include:
Thomson says that, currently, people in a civil, customary, or religious (including Islamic) marriage are deemed married in community of property, unless they have an antenuptial contract stating otherwise. People living together are not seen as married in community of property. However, until Parliament decides on the two acts, any life partner can bring an interdict against their deceased partner’s estate and halt the winding-up process.
He adds that it’s pivotal that people cohabiting consider: