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“The intestate succession act, once again unconstitutional”
01 September 2021  | Simei Verster

The law is ever evolving , developing norms and standards regarding public policy and narratives informing human rights.

One such area, which by nature needs to be on the forefront of development, is Family Law. It ties in all the fundamentals of being human with the operation of law. Family law affects one from the time before birth, to the time after death. Therefore, it is something that affects every single one of us, regardless of whether we form part of the traditional meaning of a ‘family’.

In recent years, jurisprudence across the globe has seen a big shift toward an alternative definition of “family”. One of the areas that this has impacted greatly is the law of succession. Under outmoded legislation, a family was defined (and understood) as a husband and wife, and their children born from that marriage. Any other ‘form’ of a family was excluded. For reasons that do not need explaining, this has time and again been proven to be unjustified discrimination and unconstitutional.

For reasons unbeknownst to the legal fraternity, case law surrounding this topic has made progress in the recognition of same-sex life partnerships; however, a great gap lies in the recognition of opposite-sex life partnerships. The Intestate Succession Act [1] was declared unconstitutional to the effect that the word “spouse” excluded same-sex life partners, and the reading in of such partners was ordered by the Constitutional Court in Gory v Kolver [2]. However, the court emphasized that not any relationship would allow a person in a same-sex relationship to be included as a spouse for purposes of inheriting as the intestate surviving ‘spouse’. There are requirements that need to be met, and the relationship needs to have persisted for a significant time period.

In a recent Cape High Court judgement, the court was called upon to decide whether the Intestate Succession Act is unconstitutional to the extent that it does not include opposite-sex life partnerships in the definition of ‘spouse’. [3] The court emphasized that there must be a reciprocal duty of support established between parties for a relationship to qualify as a life partnership. There is a causal link between this duty and the specific claims sought by the applicant. Such a duty can be agreed to tacitly or expressly. The court decided that in this case, such a duty was proven, and it was made obvious that the parties intended to be in a permanent life partnership. The court made the following statement: the law provides for greater rights and benefits to those is same­ sex life partnership that those in heterosexual life partnerships: same- sex partners can inherit (whether they are married or not), whereas heterosexual couples (who are not married) cannot, this is differentiation (and is discriminatory).”[4]  Further, the court said that traditionally it is women who stand to suffer after years of dedication and support to the livelihood of a permanent life partnership they end up being left in the cold, stripping them of their dignity whilst the same-sex life partnership in the same boat as them, stand to benefit, that is an infringement on the right to equality.

The High Court concluded that Section 1(1) of the Intestate Succession Act is unconstitutional and invalid to the effect that it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of the act.

According to this judgement, a life partner of a deceased in an opposite-sex life partnership is included in the definition of ‘spouse’ in the Intestate Succession Act if it can be shown that such a person had a reciprocal duty of support with the deceased.

[1] 81 of 1987

[2] 2007 (4) SA 97 (CC)

[3] Bwanya v the Master the High Court, Cape Town [2020]

[4] Para 169 Bwanya v the Master the High Court, Cape Town [2020]

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