The recent Bwanya case

The right of a surviving life partner in a permanent opposite-sex life partnership to inherit or claim maintenance.

The recent Constitutional Court judgement of Bwanya v The Master and others (CCT 241-20) has substantially changed the law as it applies to the definition of “spouse” in the Intestate Succession Act, applying to a surviving life partner in a permanent opposite-sex life partnership.

Until this judgement, cohabiting opposite–sex couples did not enjoy the same rights as married couples. On that basis, I always advised clients that chose not to get married to conclude a cohabitation or life partnership agreement.

The Applicant and the deceased were, at the time of the deceased’s death, partners in a permanent opposite-sex life partnership, with the same or similar characteristics as a marriage, in which they had undertaken reciprocal duties of support.

The Constitutional Court held that Section 1(1) of the Intestate Succession Act is unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of this Act and that the word “spouse” includes a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support.

The judgement also deals with same-sex partners that cohabit permanently, maintenance claims, etc.

Earlier decisions protect ‘spouses’ in Hindu, Muslim and customary marriages, See these articles on our website.

Persons married according to Muslim rites are spouses for the purposes of inheriting or claiming from estates where the deceased died without leaving a will. ‘Spouse’ in Intestate Succession Act and the Maintenance of Surviving Spouses Act includes partners to Muslim marriages

A spouse of a “marriage” by Hindu rites enjoys recognition by South African law for inheritance purposes. The word ‘spouse’ as used in Section 1 of the Intestate Succession Act 81 of 1987 includes the surviving partner to a monogamous Hindu marriage.

The Constitutional Court confirmed that the South African customary law rules relating to intestate succession are unconstitutional and discriminatory. The Court also confirmed that the entire statutory scheme governing deceased estates of black persons is unconstitutional and discriminates on the basis of race, birth and gender.

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