While a new bill will give a life partner the same legal rights as a spouse, the precise definition of a life partnership still remains uncertain.

Later this year the Judicial Matters Amendment Bill will come into law. The Bill will give partners in a life partnership the same legal status as a spouse when it comes to testate law.

The changes to the law relate to the rights of the surviving partner in claiming against the estate of the late partner. What is not clear, however, is what defines a life partnership.

Once the bill is passed, a person in a permanent life partnership will be able to claim against the estate of their deceased partner for maintenance as well as inheritance.

“People are choosing to co-habit but not to get married, and that is their right” argues Moremadi Mabule, Head of Wills Operations at Sanlam Trust.

Mabule explains that the law will affect those individuals whose partners die intestate (without a will). Intestate law has clear rules as to how the assets should be divided in the case where there is no will. This includes a portion being paid to the spouse and a life partner will now qualify for the spousal portion.

The law will also apply where the deceased has a will but does not leave any assets to his or her spouse. Mabule explains that while we have freedom of testation (we can nominate whoever we choose in our will) a spouse who is financially supported by the deceased can claim against the estate for maintenance, even if they are not a nominated beneficiary.

It is important to note that this change in legislation pertains to the succession to an estate and not retirement funds covered by the Pensions Fund Act (PFA).

Mabule explains that under the PFA a trustee must already consider all legal and financial dependants when it comes to distributing the assets of a retirement fund. This means a life partner, who could prove financial dependency, would already have a claim against a deceased partner’s retirement benefit.

But how do we define a life partnership?

While the new law will be beneficial to those in life partnerships, the challenge will be around who qualifies as a life partner says Deenisha Nadesan, Capital Legacy’s director of Fiduciary Services

Nadesan explains that the amendments define a ‘spouse’ or ‘marriage’ as “a permanent life partnership in which the partners undertook reciprocal duties of support.”

Nadesan says the question needs to be asked as to what “reciprocal duties of support” means. “Typically, when Capital Legacy declares a life partner for estate duty, SARS requests two affidavits from non-family members and other proof to allow this. The courts will need to set precedent to show to what extent “reciprocal duties of support” will be accepted. For example, does a stay-at-home parent who brought up the kids while the partner worked meet that definition?”

Mabule says there are many situations in South Africa where a couple may have been separated for years without getting a divorce and are now each living with a different life partner. How will the courts decide whether the marriage contract outweighs the life partnership.

“There is also a question of time. What if the couple have been together for six months? Is there a timeframe that should be applied? These are the questions the courts will have to answer,” says Mabule.

While this law will go some way to protect those in life partnerships who may be financially dependent, it will be open for contestation.

The decision to allow or dispute a claim against an estate lies with the executor, and those duties are not taken lightly.

The case that changed the law

The Judicial Matters Amendment Bill comes on the back of a Western Cape High Court judgement in October 2020 which found that section 1 of the current Intestate Succession Act is unconstitutional, as it excludes life partners in a relationship intended to be permanent from the definition of “spouse”.

This judgement was upheld by the Constitutional Court in December 2021 which required the Intestate Succession Act to be revised.

The case in question related to a Ms. Bwanya who had lived with the deceased Anthony Rush since 2014. He provided her with a home, and paid for groceries and all other household expenses.

In 2016 they had made plans to visit her family in Zimbabwe to arrange their marriage and for lobola to be paid. Mr. Rush passed away two months before the scheduled journey.

Although he had a will, it had not been updated and his late mother was the nominated beneficiary. He had no children or legal spouse who would naturally inherit under intestate succession law.  Had Ms. Bwanya been recognised as a spouse, she would have had a claim on the estate.

In opening the opening remarks of the judgement, the Constitutional Court judges quoted a previous case where an applicant had asked “should a person who has shared her home and life with her deceased partner, given birth to his children and raised then together with him, cared for him in health and 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 against the rights of legatees and heirs?”

In its conclusion, the judgement stated that “it is plain to us that the underlying problem of women who find themselves in permanent life partnerships and are unable to support themselves is a broader problem that must be addressed by parliament. The rights of these women must clearly be defined in law and be enforceable in our courts”.

The judgement gave parliament 18 months to amend the Act.

This article first appeared in City Press.