The evolution of marriage laws and its impact on estate planning

Marriage legislation is currently being amended to broaden the definition of ‘spouse’

Marriage legislation is currently being amended to broaden the definition of ‘spouse’

Published Jul 9, 2023


South African marriage law has changed a great deal over the last century, yet recent modifications have initiated a congestion of change. Against this background, knowledge and support to guide confident estate planning for partners are imperative.

There are three marriage Acts in South Africa:

  • The Marriage Act for monogamous marriage for opposite-sex couples
  • The Recognition of Customary Marriages for polygamous marriages for opposite-sex couples
  • The Civil Union Act for monogamous partnerships for both same and opposite-sex couples

While these changes and updates to recognise polygamous and same-sex marriages have been progressive, so too is the legislation currently being amended to broaden the definition of ‘spouse’. Traditionally, a spouse only referred to someone married legally, as per the Marriage Act. A long overdue change is now in the making for this definition to include people living together in a committed, long-term partnership.

Until now, partners in a permanent relationship were considered a spouse in terms of pension benefits and exemptions from estate duty and donations tax. Co-habiting partners were, however, not deemed to have the same rights as a spouse in terms of intestate succession, should their partner die without a will. This meant the surviving partner was left with nothing, irrespective of how long they had been together.

This came to a head last year with the Jane Bwanya court case, which went all the way to the Constitutional Court. Bwanya and her partner had lived together in a committed romantic relationship and were two months away from commencing lobola negotiations when her partner passed away. He died having nominated his mother, who had already passed away, as the only heir to his estate.

The majority of the judges found it unconstitutional that Bwanya was left with nothing and ordered Parliament to change the law to include unmarried life partners as a spouse for intestate succession. The court also ordered Parliament to amend the Maintenance of Surviving Spouses Act to provide for live-in partners, by 30 June 2023.

This was a major decision indeed and a welcome one for the estimated 3.5 million unmarried South Africans in committed relationships. Both amendments will have a significant effect on the way estates are wound up as well as the rights of cohabiting partners.

These amendments come with substantial tax benefits for life partners as when someone passes away, what they leave to their spouse is exempt from estate duty.

Customary unions were recognised some years ago with the adoption of the Customary Marriages Act. The challenge here was that the default position of these marriages was Out Of Community Of Property. By comparison, marriages recognised in the Marriage Act and Civil Unions Act defaulted to In Community Of Property.

Last year, the Constitutional Court found this distinction to be illogical and discriminatory based on race and culture. This has now been amended and, unless the parties sign a prenuptial agreement stating otherwise, all customary marriages will in the future default to a regime similar to ‘In Community Of Property’. Given the disproportionate number of women who are unemployed and who stay home, this was a ground-breaking decision impacting and empowering women partners and placing them in a much more secure financial position.

While relatively uncommon, polygamy is most often found in sub-Saharan Africa, where 11% of the population lives in arrangements that include more than one spouse. Polygamy certainly makes the issue of deceased estates more complex. However, various cases over the years have led to the law deeming all wives in a polygamous marriage equal, with wives and homesteads being divided up fairly and equitably.

Another recent change has been the legal recognition of traditional Muslim marriages. The Constitutional Court stated in June 2022 ruling that a Muslim marriage needs to be fully recognised as a valid marriage. Here, because of Sharia Law, the default position of a Muslim marriage will remain as ‘Out Of Community Of Property’.

Parliament had until 28 June 2024 to amend both the marriage and divorce acts to recognise that Muslim religious marriages are valid and cannot be ended by either party simply leaving the other. Here too, on death, the spouse is entitled to inheritance through intestate succession.

The fact that spouses are more protected, irrespective of whether they are married or not, and that women are now more empowered, give credence to these latest legal amendments, especially given the complexities, and cultural and religious diversity within the South African population.

While these amended legal frameworks and definitions protect life partners in death, it doesn’t protect them in terms of a partner walking out of the relationship or the relationship irrevocably breaking down. Therefore, domestic partnership agreements are such an important step for partners who live together but choose to remain unmarried.

Progressive marriage laws do not detract from the importance of estate planning. Contact a financial adviser to draw up a will and ensure you provide for your partner and live with confidence regardless of whether you are married or not. Remember that the common law right to claim maintenance for minor children and the statutory law right to claim maintenance for a surviving spouse supersedes what is stated in a Will and is enforced by our courts.

* Thomson is Senior Legal Adviser at Sanlam Trust