“Should a person who has shared her home and life with her deceased partner, born and raised children with him, cared for him in health and in sickness, and dedicated her life to support the family they created together, be treated as a legal stranger to his estate, with no claim for subsistence because they were never married? Should marriage be the exclusive touchstone of a survivor’s legal entitlement as against the rights of legatees and heirs?” SACHS J Volks N.O. v Robinson  ZACC 2; 2009 JDR 1018 (CC)
In 2016, statistics revealed that approximately 3.2 million South Africans live together as co-habitants outside the boundaries of marriage. South African common law has also significantly been developed to accommodate the rights of people who choose to cohabit outside of marriage. In light of this, it seems that South African Courts have accepted that cohabitation outside of marriage is now widely practised and accepted across the globe. This is evidenced in the Judgment handed down by the Constitutional Court in Bwanya v The Master of the High Court Cape Town (The Bwanya Case).
The Apex court was left with the task of deciding whether the definition of “Survivor” as defined in Section 1 of the Maintenance of Surviving Spouses Act was invalid and resultantly unconstitutional to the extent that it does not include the words “surviving partner of a permanent life partnership terminated by death”.
Ms Bwanya and the deceased Mr Anthony Ruch were involved in a relationship that consisted of all the characteristics of a marriage. In 2014, Ms Bwanya moved in with Mr Ruch on a permanent basis, they attended many social gatherings together, and Mr Ruch often introduced Ms Bwanya to his friends as his wife. In 2015, the couple even planned to conceive a child to solidify their relationship. In the same year, Mr Ruch also proposed to Ms Bwanya and they planned to get married in 2016, after the Labola negotiations. Mr Ruch, however, passed away in November 2016.
After Mr Ruch’s passing, Ms Bwanya lodged a claim for maintenance against Mr Ruch’s estate in terms of the Maintenance of Surviving Spouses Act. The basis for her claim was that the permanent life partnership shared between herself and Mr Ruch had most, if not all, the characteristics of a marriage. Her claim was rejected by the executor on the basis that she was not married to Mr Ruch. Ms Bwanya then challenged the constitutionality of sections 1 and 2 (1) of the Maintenance of Surviving Spouses Act.
Section 2(1) of the Maintenance of Surviving Spouses Act provides that a surviving spouse has the right to lodge a maintenance claim against his or her deceased spouse’s estate if they are unable to support themselves. Section 1 of the Act defines a “survivor” as the surviving spouse in a marriage dissolved by death. The Court in the Bwanya Case had to consider whether the exclusion was still merited.
The Apex Court took cognizance of the increasing popularity of permanent life partnerships and the creation of many families within this category. In the words of J. Madlanga, “We should be wary not to so emphasise the importance of the institution of marriage as to devalue, if not denigrate, other institutions that are also foundational to the creation of other categories of families. And this must be so especially because the other categories of families are not only a reality that cannot be wished away, but are on the rise.”
The court found that all categories of families deserve legal protection, including permanent life partnerships. The court also emphasised that permanent life partnerships are intimate relationships that are meant to last until the death of one or both partners and that it is a relationship that is often characterised by a reciprocal duty of support. In light of the above, the Constitutional Court ruled that the exclusion of permanent life partnerships in the definition of “survivor” as found in Section 1 of The Maintenance of Surviving Spouses Act was constitutionally invalid. In the same breath, the Court also found that Section 2(1) of the Maintenance of Surviving Spouses Act was constitutionally invalid to the extent that it only confers a maintenance benefit on a surviving spouse.
The order in the Bwanya Case brings about a significant change in South African Law. Prior to the judgment, a surviving partner of a permanent life partnership could not claim maintenance from their deceased partner’s estate. Now, both heterosexual and same sex life partners can now claim maintenance benefits from their deceased life partner’s estate. The Legislature has now been given 18 months to take steps to cure the constitutional defects in the Maintenance of Surviving Spouses Act.
Our family law experts are more than capable to provide sound legal advice to anyone seeking further advice on maintenance claims.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)