Cape Town – Are unmarried life partners in an opposite sex union entitled to an inheritance following the death of one?
This is the question before the Constitutional Court in a matter calling for a confirmation order to declare section 1(1) of the Intestate Succession Act 81 of 1987 unconstitutional and invalid.
The case comes after the Western Cape High Court found in favour of Jane Banya, who challenged the act as it excluded heterosexual life partnerships in terms of inheritance.
Banya, who fell in love with a man in Camps Bay in 2014, said a few months into the relationship they moved in together and a year later they got engaged.
During their relationship, the deceased provided and cared for her.
They had considered cementing the relationship with a child and were starting a business together.
Following their engagement, they made preparations to travel to Zimbabwe so he could meet her family and to engage in lobola negotiations, but two months before the trip her partner died unexpectedly on April 23, 2016.
He had nominated his mother as his only heir, but she had predeceased him and the executor had rejected Banya’s claims to the estate worth millions.
She then approached the courts to remedy the matter, making two claims against the estate of the deceased. She claimed inheritance and maintenance in terms of and under the Administration of Estates Act.
The high court held in Banya’s favour in relation to the inheritance claim under the Intestate Succession Act. The court had declined to uphold the maintenance claim under the Maintenance of Surviving Spouses Act.
Banya has also asked the apex court for the extension of maintenance.
Representing Banya virtually yesterday, advocate Robert Stelzman said: “In this case, the parties did not formally conclude the marriage but they came very close. The evidence is that they would have got married.
“The difference between a co-habitee and a life partner as we have in this case is that there is a duty to support.
“To ensure equality, they (heterosexual life partners) need to be treated the same as someone in an Islamic marriage, Hindu marriage or a same-sex relationship because the court has extended those same benefits to those who have not entered into a Christian formal marriage before a priest who is a marriage officer,” said Stelzman.
Justice Chris Jafta expressed concern for the unintended consequences of declaring the act invalid.
“My area of concern is the appeal issue of the survival maintenance. We would be saying everybody in a life partnership is entitled to the statutory.
“At a common law level, those people would still retain a right emanating from contract which places them in a position that is more advantageous than married people.
’’In an effort of equalising we could end up creating an unequal situation depending on whether your right is sourced from marriage or life partnership,” he said.
Judgement has been reserved.
Cape Times