By Kenrick Newport
There was probably a collective sigh of relief when 3.2 million South African citizens in cohabiting relationships heard the news that the Judicial Affairs Amendment Bill (the Amendment Bill) had been tabled in Parliament.
It is expected that the parliament will still vote on this amendment bill this year.
Should parliament approve it and the president sign it into law, life partners in a relationship intended to be permanent will be included in the legal definition of “spouse”.
The Western Cape High Court ruled in October 2020 that section 1 of the Intestate Succession Act 81 of 1987 is unconstitutional insofar as it excludes life partners in a relationship that aims to be permanent given the definition of “spouse”.
In Desember 2021 in Bwanya v Master of the High Court, Cape Town and others  ZACC 51, the Constitutional Court confirmed the decision of the High Court.
When the bill becomes law, people in permanent relationships will be able to claim against the estate of their deceased partner for maintenance as well as inheritance.
With the definition expanded, partners will be able to claim under the law on maintenance of surviving spouses 27 of 1990 and the law on intestate succession 81 of 1987, if a partner (spouse) dies without a will.
Before the Constitutional Court’s decision, cohabiting couples did not have the same rights as married couples.
The amendment bill in finer detail
The amendment bill includes amendments to the surviving spouse maintenance law and the intestate succession law. The Intestate Succession Act was amended by adding subsection (1A), which read as follows: “The word ‘spouse’, wherever it appears in this article, includes a partner in a permanent life relationship in which the partners have undertaken to perform mutual support functions”.
The surviving spouse maintenance law was amended by inserting the definition of ‘marriage’ and ‘spouse’: “A permanent life relationship in which the partners have undertaken to perform mutual support duties”.
The definition of survivor in subsection (1) has also been replaced which now reads: “the surviving spouse in a marriage dissolved by death includes:
The surviving partner in a permanent life relationship that was dissolved by the death of one partner where the partners undertook to perform mutual duties of support and in circumstances where the surviving partner did not receive a fair share of the deceased partner’s estate” .
The mutual duties are based on questions of need, ability and the means to provide such support. This was the opinion of the court and confirmed in Oberholzer v Oberholzer 1947 (3) SA 294 (O).
In Booysen v the Minister of the Interior 2001 (4) SA 285 (CC) the constitutional court confirmed that legislation that prevents spouses from fulfilling their duties affects the dignity of both spouses.
The extent of such support is mainly based on the means, needs and quality of life of the spouses concerned.
Deenisha Nadesan, Capital Legacy’s director of fiduciary services, says the challenge that may remain may be the burden of proof to indicate that someone is a “permanent life partner”. In the normal course of circumstances, one would show a marriage certificate.
Usually, when Capital Legacy designates someone as a partner for estate tax purposes, the South African Revenue Service (SARS) requires two affidavits from non-family members and other evidence to allow this.
Deenisha further says that the courts will have to set a precedent to indicate the extent to which “mutual support duties” will be accepted. For example, would a housewife who raised the children while the husband worked meet that definition?
When the amendment bill on judicial matters becomes law, the bill will have a major impact on estates and maintenance. Life partners, if accepted as spouses, will have the right to make claims against estates.
However, one must remember that the decision to allow or contest a claim against an estate rests with the executor, and that executors do not take these duties lightly. Disputes will in all likelihood increase and some partners will have to take executors to court to prove their claims. The amounts of such claims usually amount to millions of rands and should not be taken lightly.
The best solution for your life partner remains a will because then the executor of your estate will have no doubt about who your life partner is.
- Kenrick Newport is the National Succession Manager of Capital Legacy.
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