CAPE TOWN: 04 January 2022

Victory for women in opposite sex domestic partnerships as the Constitutional Court recognises their right to inherit testate and claim spousal maintenance

On 31 December 2021 the Constitutional Court issued its judgment in the matter of Bwanya vs Master of the High Court Cape Town and Others CCT 241/20. The Applicant in this matter challenged the exclusion of opposite-sex couples from the operation of the Intestate Succession Act 81 of 1987 (ISA) for inheritance without a will and the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA) for failing to make provision for anyone who is not married to claim maintenance when a relationship is terminated by death.

The Women’s Legal Centre Trust was admitted as an amicus curiae (friend of the Court) to assist court to fully understand the gender contexts, intersectional nature of the discrimination faced by black women especially in South Africa. The Trust was also allowed to put critical and relevant evidence before the Court based on our experience with women and permanent opposite-sex life partnerships which the Court relied on in its judgement.    

The Applicant was in a permanent opposite-sex life partnership and her partner died without a will. In terms of the ISA, she could not inherit from her partner because they were not married. She was also not able to claim maintenance in terms of the MSSA because opposite-sex life partners, like the Applicant, are not considered spouses in terms of this law.

As a result, the Applicant filed an application challenging the constitutionality of both the ISA and the MSSA for failing to recognise and include opposite-sex life partners who have undertaken reciprocal duties of support for the benefit of inheritance and maintenance respectively. The applicant filed the application in her own interest but also on behalf of all other women in similar circumstances such as her. In its decision the Court found in favour of the applicant (and all other women in similar circumstances) on both issues.

In respect of maintenance for surviving spouses, the Court found that section 2 of the MSSA was unconstitutional as it unfairly discriminated against unmarried couples by limiting its benefits only to married spouses. The court posited that the critical question to be answered within this context is whether the institution of permanent life partnership is, indeed, deserving of constitutional and legal protection.  The Court recognised that permanent life partnerships are widely used in South Africa with at least 3,2 million in such relationship as of 2016. Accordingly, they must be accorded the necessary respect as they are an institution through which many people live, give and receive love in return, form families and enjoy some of life’s myriad pleasures with those they love among other things. The Court emphasized that all categories of families in South Africa are deserving of legal protection.

In coming to its decision, the Court had to consider whether to follow its previous decision of Volks vs Robinson case which had primarily held that if you choose not to get married, you cannot benefit from the institution that you were not part of. The Court decided to depart from the Volks decision as there had been developments in common law in familial and spouse-like relationships that were afforded legal protection. Secondly, the Court foregrounded its finding to depart from the Volks decision on the vulnerability of women in permanent opposite-sex life partnerships and recognised this as one of the central reasons why some women find themselves in permanent life partnerships. Given the patriarchal nature of South African society and the evidence placed before it by the Trust, the Court recognised that the lived reality of millions of women in our country did not enable them to make choices free from discrimination on the question of marriage. Further based on the evidence before Court, it was clear that men benefitted from the non-recognition afforded to the domestic partnerships in which they were living. Women therefore are often forced to be content with the man’s choice and stay in domestic partnerships.

Based on this reasoning, the Court found that that the definition of “survivor” in section 1 of the MSSA is unconstitutional and invalid insofar as it excludes the surviving partners of a permanent life partnership terminated by the death where the partners had undertaken reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate. The judgment ordered that the meaning of survivor include permanent life partnerships. The words “spouse” and “marriage” in the MSSA were also declared to include a person in a permanent life partnership. The declaration of invalidity was suspended for 18 months to afford Parliament an opportunity to cure the constitutional defect.

In relation to the issue of intestate succession (where a person dies without a will), the Court found that the exclusion of surviving permanent opposite-sex life partners from enjoying benefits under section 1(1) of the Intestate Succession Act unfairly discriminated against such couples based on their marital status. Here too, the Court recognised the vulnerability of women and the patriarchal nature of our society which forces women to live with the decisions and choices of men on whether to get married or not because of primarily financial power imbalances among others. Accordingly, the Court emphasized the need to protect women in permanent opposite sex life-partnerships. The court confirmed the declaration of invalidity of section 1(1) of the Intestate Succession Act made by the High Court and suspended it for 18 months to allow parliament to remedy the unconstitutionality.

The Women’s Legal Centre strongly welcomes this judgement as it is based on the lived reality and experiences of the most vulnerable women in our society. We also welcome that the judgment seeks to give effect to the values of the constitution in that it recognises the continued patriarchal nature of our society which places women in very tenuous power dynamics including in making decisions on whether to get married or not. In response, the judgment mandates that legislation that is enacted to give effect to the rights in question must do so in a manner that leads to substantive equality. We support the important need for rights recognition and enjoyment of the diversity of all families in South Africa. We believe that the judgment is a critical step to deem families formed in permanent life partnerships as deserving of protection and equality which firmly does away with the common trend of othering those who are different from what is perceived to be the norm. The WLC believes in and celebrates difference in identities, in families, in communities and in all spaces as it is the cornerstone of our democracy which must be celebrated and protected.

The Women’s Legal Centre is an African feminist legal centre that advances womxn’s rights and equality using tools such as litigation, advocacy, education, advice, research and training.

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