In a recent ruling, the Constitutional Court decided that section 1(1) of the Intestate Succession Act is unconstitutional in that it does not include life partners in relationships intended to be permanent in the definition of “spouse”.
As a result, the Court instructed parliament to amend two particular laws in order to recognize the right of a surviving partner to claim and inherit maintenance after their partner dies, regardless of their marital status.
This is thanks to Jane Bwanya who challenged the constitutionality of the two relevant acts, claiming that they are discriminative against non-married partnerships.
Originally from Zimbabwe, Ms. Bwanya was involved in a relationship with Mr. Ruch before he passed away. They met and began their romantic relationship in 2014 and later that year, Ruch asked Bwanya to move in with him and to stay with him on a permanent basis and Bwanya agreed.
From that point, Bwanya and Ruch stayed together and split their time between Ruch’s two properties while Bwanya continued her position as a domestic worker at the Meadows. The couple would accompany each other to social gatherings and their mutual friends were aware of their relationship. Ruch went as far as introducing Bwanya as his wife, and referred to her brother as his brother-in-law, despite them not being married. It was evident that they were committed to one another.
In 2015, Ruch proposed to Bwanya, and plans were set into motion to travel to Zimbabwe where lobola negotiations would commence. Ruch would meet Bwanya’s family, and they planned to officially tie the knot after returning from their trip.
However, unfortunate, and unexpected circumstances led to Ruch’s untimely death, just two months before they were scheduled to start their trip to Zimbabwe. In his will, Ruch nominated his mother as the sole heir to his estate. He had not updated this before he passed, even though his mother had predeceased him.
In terms of the Administration of Estates Act, Bwanya lodged two claims against Ruch’s estate:
Her claims were based on the fact that their relationship resembles that of a marriage. They lived together on a permanent basis, they were engaged to be married, Ruch supported her financially and emotionally, and they undertaken reciprocal duties of support towards each other
However, both Bwanya’s claims were rejected on the basis that the aforementioned Acts only granted benefits to married couples and excluded life partners in permanent relationships.
In Bwanya’s case, the Constitutional Court determined that permanent life partners are a legitimate family structure and are deserving of respect as well as legal protection, just as married partnerships are.
As a result, the Court held that the definition of “survivor” as stipulated by the Maintenance of Surviving Spouses Act omits the words “and includes the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”, and is, therefore, unconstitutional.
The Court has afforded parliament a period of 18 months to amend the laws so as to repair the defect in the constitution. This is a victory for all permanent life partnerships not officiated through legal marriage.
You can avoid unintended consequences by ensuring that your estate is properly set up and your beneficiaries are looked after.
For assistance with setting up a will, please contact our attorneys.
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