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Until recently, only same-sex couples were entitled to claim a life partnership which effectively afforded both parties roughly the same rights as married couples.

This included the right to intestate succession and the maintenance of the surviving partner should the relationship be terminated by death.

For opposite-sex couples, these rights only came into effect once the ceremony was over, the rings firmly planted on fingers and the marriage registered.

This is a twofold problem. Most importantly the lack of access to these rights disproportionately affected vulnerable women in life partnerships with opposite-sex partners, who could find themselves without maintenance should their partner die without leaving a will.

Secondly, it enforced marriage as the only way for opposite-sex couples to gain access to these rights, which means that it actively discouraged people from opting for a life partnership over a registered marriage.

This is set to change following the case of Bwanya v The Master of the High Court and Others.

The case concerned a woman who was in a permanent opposite-sex life partnership when her partner died without leaving a will. According to the Intestate Succession Act (ISA) 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990, she could not inherit or claim maintenance as she was not considered a ‘spouse’.

In a press release, the Legal Resources Centre (LRC) applauded the judgement handed down by the Western Cape High Court yesterday, in which it was declared that section 1(1) of the ISA is unconstitutional and invalid insofar as it excludes the surviving partner in a permanent opposite-sex life partnership from inheritance.

The court held that the ISA is to be read as though the following words appear after the word ‘spouse, “or partner in a permanent opposite sex life partnership in which the partners had undertaken reciprocol duties of support.”

There is currently no legislation that sets out specific requirements that have to be met by partners in a same-sex relationship to qualify as a same-sex life partnership. The same is true at this stage for opposite-sex life partnerships.

However, the following criteria could be used to determine whether or not a life partnership exists:

• The degree of permanence and stability of the relationship;
• Whether the relationship is acknowledged by the couple’s friends, family, and/or acquaintances;
• The exclusive nature of the relationship;
• The period of cohabitation;
• The couple’s commitment to share a household, and each partner’s role in the maintenance and management of the shared household;
• The couple’s financial and emotional support towards each other, and whether the partners have assumed a duty to support each other;
• If the couple has jointly purchased immovable property, which is registered in both their names;
• Whether the couple has joint insurances;
• Any conduct or act that expresses and/or confirm the intention of the parties to be in a permanent life partnership; and
• Any written agreement the couple has entered into expressing their intention to be in a permanent life partnership.

You can read the full statement by the LRC, here:

PRESS RELEASE | We welcome yesterday’s judgement by the Western Cape High Court regarding the constitutionality of the ISA and the MSSA. The decision is a welcome development in advancing the rights of women to equality and dignity, specifically in relationships. pic.twitter.com/rkjXEL6jNX

— Legal Resources Centre (@LRC_SouthAfrica) September 30, 2020

The judgement stands as the first step towards empowering couples to determine whether or not they want to enter into marriage, validating long-term relationships – you don’t need to be married to have a caring, committed and loving relationship – and moreover, protecting the vulnerable in life partnerships.

[source:lrc]