The Consequences of Living Together

Ons leef in ‘n tydperk waar paartjies al hoe meer dikwels besluit om, weens persoonlike redes of omstandighede, eerder saam te woon, as om die spreekwoordelike knoop deur te haak.  In die euforie van dié groot stap, word daar in bitter weinig van hierdie gevalle behoorlik gekyk na die sosiale-, sielkundige- of regsgevolge daarvan.  Vandeesmaand gee kollega Cheryl-Anne meer insig oor spesifiek die regsgevolge van so ‘n saambly-verhouding.

According to the 2016 Census approximately 3.2 million South Africans cohabit outside of marriage. Contrary to popular belief, just because you live together long enough as husband and wife, although you are not legally married, does not make you a common law husband and wife. You are also not deemed to be married. Our law has not developed fast enough to regulate these types of relationships.

There have been calls on Parliament to pass laws to regulate these types of relationships just as it did for married couples. Living together outside of marriage, having children together, sharing resources and supporting each other is said to create a different family unit worthy of protection. When this relationship comes to an end by death or separation there are financial and legal consequences which become relevant especially if it involves an inheritance, maintenance, a pension, or insurance. Through the years our Courts have stepped in to deal with these consequences.

In the Gory Case of 2007, the Constitutional Court held that same-sex life partners in a permanent relationship who had undertaken reciprocal duties of support, qualified as intestate heirs. This was a victory for same sex partners, but partners of the opposite sex in a similar permanent life partnership were still being excluded and could not inherit as intestate heirs, until recently. 

Inheritance: In terms of the Intestate Succession Act, if a person died without leaving a valid will and if survived by a spouse only, the surviving spouse will inherit the entire estate. Recently, in the Bwanya Case, the High Court declared that the definition of “spouse” in the Intestate Succession Act is unconstitutional and ordered that the definition must be interpreted to include “a partner in a permanent opposite sex life partnership in which the partners had undertaken reciprocal duties of support”. The Court held that a life partnership itself does not give rise to a reciprocal duty of support. The parties must also have agreed to support and maintain each other.

Maintenance: The definition of ‘spouse’ is also relevant to the Maintenance of Surviving Spouses Act, 1990 which makes provision for a surviving spouse in a marriage (civil or civil union) dissolved by death, to have a claim against the estate of the deceased spouse for reasonable maintenance until death or remarriage, subject to their own resources being inadequate. In the 2005 Volks v Robinson Case the Constitutional Court rejected the interpretation of the word ‘spouse’ to include an opposite sex life partner for purposes of a claim in terms of the Maintenance of Surviving Spouses Act. The Bwanya Case confirmed this which led to an appeal to the Constitutional Court in 2021. On appeal the Constitutional Court held in December 2021, amongst others, that the definition of “spouse” and “marriage” in the Maintenance of Surviving Spouse Act is to be read as though it includes “a permanent life partnership in which the partners undertook reciprocal duties of support”. The Constitutional Court also confirmed the High Court order regarding the unconstitutionality of the definition of “spouse” in the Intestate Succession Act. This means that permanent life partners who agreed, either contractually or tacitly, (from the facts) to support and maintain each other now qualify as intestate heirs and can claim maintenance from the estate of a deceased partner. The Court order has, however, been suspended for 18 months to give Parliament time to enact Legislation to remedy some Constitutional defects identified by the Court, failing which the Court’s order would come into effect.

This could create a situation where the choice of one partner not to formalize his/her relationship is completely ignored and where the relationship is regarded as a marriage with legal consequences. The Bwanya Case is also not without criticism.

Regards / Groete

Eberhard & Cheryl-Anne