Are you cohabiting, living together and not married, and do not have a will? Then this is for you.
Each week in the Independent on Saturday newspaper there is a Personal Finance section. On 12 March 2022 there was an article on the proposed amendments to 2 Acts, Intestate Succession and Maintenance of Surviving Spouses, which may result in the redefinition of a spouse.
If these amendments are passed in the next 18 months it will mean that your partner, with whom you have been cohabiting, even if not for very long time, could have a claim on your estate if you die intestate. You must decide if this is your wish and, if not, ensure that you have a will.
BWANYA RULING
These amendments have been proposed by the Constitutional Court (ConCourt) in a landmark ruling known as the “Bwanya ruling”. How did this ruling come about? Jane Bwanya was about to marry Anthony Ruch after they had been cohabiting for 2 years when he died. Ruch did have a will but it was an old one and everything had been left to his mother who had died. He had no other heirs and had never updated the will to include Bwanya. Effectively, he died intestate. Bwanya went to court to have the process of winding up the estate halted while she applied for maintenance. It was pointed out that if theirs had been a same-sex partnership, she would have had an automatic claim. Both the High Court and the ConCourt agreed with Bwanya and so recommended the amendments to the Acts.
THE ACTS – CURRENT AND PROPOSED
1. Intestate Succession Act
Currently, if you die intestate, your surviving spouse (including same-sex partner and by customary marriage or religious rite) and children will inherit. If you die without leaving a spouse or children, you parents or siblings will inherit your estate. The ConCourt has proposed the inclusion of cohabiting partners being eligible for inheritance from a partner who dies intestate.
2. Maintenance of Surviving Spouses Act
Currently, a surviving spouse as detailed in 1 has the right to make a maintenance claim against the deceased spouse’s estate. The ConCourt has proposed the inclusion of cohabiting partners being eligible to receive maintenance from the estate of a partner who dies intestate.
DEFINITION OF A SPOUSE
Prior to 2006, same-sex couples could not marry and so were not included in the definition of a spouse disqualifying them as intestate heirs. In 2006 the Civil Union Act came into being allowing same-sex couples to marry and so were officially spouses but same-sex, unmarried partners were not included. This was challenged in the Gory vs Kolver case and was found to be unconstitutional. The result was the Act was amended to include unmarried, same-sex partners. The ConCourt proposed that the inclusion of cohabiting partners be eligible .to inherit from a deceased partner’s estate. Cohabiting partners of opposite sexes were not included and, only because of the Bwanya case, is this being reviewed. This will take at least 18 months.
WHAT DOES ALL THIS MEAN FOR COHABITING SA COUPLES
According to David Thomson, a senior legal adviser at Sanlam, these changes are massive, throwing everything on its head and could alter the law of marriage completely. Questions which need to be asked are about fairness and equability. Partners of couples who are living together without necessarily planning for it to be a long-term relationship could have the same claim as life-time partners.
Consequences of these changes
1. Cohabiting couples must now take into consideration what claims could be made on their estates should one of them die intestate. If a person does not wish this to happen, especially if s/he has children, pressure to make a will is increased. Otherwise, there could be added delays, such as court cases which can take years, in winding up the estate and payment to natural heirs, such as parents or children, could be delayed, to their detriment.
2. Proving a long-term love relationship could be difficult. The onus is on the surviving partner to prove this and it could result in fraud. The amendments and regulations need to state clearly what constitutes proof, with guidelines from High Court cases.
3. What if there are, or have been, multiple live-in partners? Which one takes precedence or do they get equal treatment? South Africa permits polygamous marriages which is another issue to be addressed? Do you have the finances to support more than one spouse?
These amendments could take more than 18 months to implement and still leave many issues to be addressed. Clearly, having an up to date will is extremely important.