If you are living with your partner but unmarried (co-habiting), you could soon be seen as a “spouse” in the eyes of the law. Two Acts are set for amendment within the next 18 months that may extend the definition of “spouse” to include any life partner. This may have major implications for you, if you’re one of the 3.5 million co-habiting 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 die, 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.
The meaning of the Acts, currently
Intestate Succession Act: If you die without a will, your estate will be divided amongst your surviving spouse (including a same-sex partner and a spouse by customary marriage or religious rites) and your children. If you die without leaving a spouse or children, your parents and siblings stand to inherit.
Maintenance of Surviving Spouses Act: If your spouse passes away, you have the right to claim for maintenance against his or her estate.
Some background on definition of “spouse”
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 (the heir of a person who dies intestate ‒ without having left a will).
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 ruling
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 co-habiting 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.
What this means for unmarried couples in South Africa
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 70-80% 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:
When there are heirs involved: The Bwanya case was straight forward as there were no heirs involved. Heirs bring a whole different dimension. The amendments may mean a life partner’s intestate and maintenance claims will rank equally to a child heir’s claim.
Thomson says: “Imagine we are trying to wind up a client’s mother’s estate, and her companion – a man her family thought she was just seeing for just a few months, but he had actually moved in – decides he has a claim for maintenance or even half the estate? The heirs need the inheritance, but now, we must stop the process and wait until the law changes, which could take years. We could continue to wind up the estate, but based on the Bwanya judgement, the live-in partner could obtain an interdict and an adverse cost order, which means the family (or the estate) would be required to pay his legal fees. Some families may try to settle out of court, but most people won’t have the money to do that.”
Proving a long-term, love relationship: Thomson says: “It’s going to be very hard to prove a long-term relationship. There’s lots of opportunity for fraud. The burden of proof will be on the surviving partner. Again, the Bwanya case was straightforward – there was evidence of intent to marry and reciprocal duties of support from bank statements, etc. There will need to be more clarity on what constitutes proof with guidelines from various High Court cases.”
Polygamous relationships: It’s all very well if you have one life partner claiming from the estate. But what if you have two? Or more? Which claim takes precedence, or are they treated equally? South Africa allows polygamous relationships, so this needs to be addressed. Can you afford to pay maintenance to multiple partners?
The importance of estate planning: 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 it’s pivotal that people living together consider:
- Drawing up a domestic partnership agreement of financial rights and responsibilities, with the help of a financial planner.
- Drafting/ regularly updating individual or joint wills, so there’s no uncertainty around each person’s wishes.
- Doing individual and joint estate planning, with a trusted adviser. This makes everything much clearer and can help strengthen a relationship.