Couples living together, either prior to marriage or instead of marriage, are characterised by law as a domestic partnership. Picture: Supplied.
Couples living together, either prior to marriage or instead of marriage, are characterised by law as a domestic partnership. Picture: Supplied.

Victory for couples in domestic partnerships

By Opinion Time of article published Nov 16, 2020

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Charlene May and Mandi Mudarikwa

Couples living together, either prior to marriage or instead of marriage, known in law as a domestic partnership, are common practice in South Africa.

Work done by the Women’s Legal Centre has highlighted that one of the reasons why fewer opposite-sex couples enter the institution of marriage is because patriarchal notions demand that the decision to marry be made by the man in a relationship, with South Africa a deeply patriarchal country.

According to Statistics South Africa, in 1996 1.2 million people confirmed that they were living in a domestic partnership. In 2001, this number increased to 2.4 million and in 2011, it increased to 3.5 million people. The 2011 census also found that most people who identified as living in domestic partnerships were black women and that fewer men identified themselves as being in a domestic partnership.

Despite this reality, South African law does not allow women in opposite-sex domestic partnerships to claim “spousal” recognition from their deceased partners’ estates for the purposes of intestate succession.

The Centre has been working to help redress this discrimination in the case Jane Bwanya vs The Executor of the Estate Ruch and Others, brought before the Western Cape Town High Court in which the Centre is the first amici curiae or friend of the court. This case challenged the exclusion of opposite-sex couples from the operation of the Intestate Succession Act 81 of 1987 (ISA) for inheritance without a will.

In this case, Bwanya was in an opposite-sex relationship with her partner. They lived together as if they were married and he died before they could get married. There was no valid or legal Will, and his estate was dealt with under the ISA.

After he died, the executor and other beneficiaries of his estate refused to recognise Bwanya as a spouse, arguing that she could not inherit from her deceased partner because they were not married at the time of death. Bwanya then filed an application in the Western Cape High Court arguing that the exclusion of opposite-sex domestic life partners by the ISA unfairly discriminated against her on the basis of her sex, gender, marital status and sexual orientation, as well as violated her right to dignity.

Before making the determination of constitutional invalidity, the court had to first establish if Bwanya and her deceased partner were in a permanent life partnership by relying on: the facts presented by the applicant, witness accounts by people who spent almost every day with the applicant and the deceased, the deceased’s recognition of the applicant’s family as in-laws, diary entries of the deceased relating to his relationship with the applicant and their long-term plans to get married.

The court decided that all of these factors cumulatively confirmed that there was a permanent life partnership between Bwanya and the deceased.

Following this determination, the court explained that the next step was to establish if there is contractually agreed reciprocal duty of support, which is important in order for the ISA to apply.

In Bwanya’s case, the court found that there was indeed a reciprocal duty of support between the partners when the relationship subsided.

Once the question of whether a partnership existed and whether there was a duty of support was answered, the court agreed with Bwanya and found that the ISA was discriminatory on the basis of marital status because it treats male-female couples differently based solely on whether or not they are married and grants greater rights and benefits to same-sex life partnerships.

The court recognised the reality that Bwanya represented one of many women in South Africa who are disadvantaged by the ISA and found that the discrimination strips women of their dignity.

Accordingly, the Court declared the ISA to be unconstitutional. The declaration of invalidity of the ISA is now before the Constitutional Court for confirmation.

The Centre welcomes the judgment because it recognises the discrimination and vulnerability of many women in South Africa. With the reality of increasing numbers of people in domestic partnerships, legal protections flowing from relationships must adapt accordingly.

Continuing to only recognise and protect marriages is discriminatory and a failure to recognise the diversity of relationships that exists in South Africa.

It is important to note that even though this judgment recognises that opposite-sex partners in domestic relationships can inherit in the same way as spouses from a marriage – the law still does not recognise “common-law marriages.”

If you are living in a domestic partnership it is important to make sure that you protect your interests either by entering into a contract that regulates important aspects of your relationship such as property ownership and maintenance so that if your relationship does end your rights are protected.

* May and Mudarikwa are attorneys at the Women’s Legal Centre.

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